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

Butterworth and Secretary, Department of Social Services (Social services second review) [2022] AATA 2858 (30 August 2022)
Division:GENERAL DIVISION
File Number(s): 2022/2291
Re:Mr Butterworth
APPLICANT

Secretary, Department of Social ServicesAnd
RESPONDENT

Decision
Tribunal:Ms A E Burke AO Member
Date:30 August 2022
Place:Melbourne

The Tribunal affirms the decision under review.
.......................[sgd].................................................
Ms A E Burke AO Member
Catchwords
SOCIAL SECURITY – application for disability support pension – whether qualified – whether insufficient medical evidence provided – whether impairment attracts rating of 20 points or more under Impairment Tables – where program of support had not been undertaken – decision under review affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
Secondary Materials
Guide to Social Security Law, Department of Social Services
REASONS FOR DECISION
Ms A E Burke AO Member
30 August 2022
INTRODUCTION

Mr Butterworth (the Applicant) is seeking a second-tier review of the decision made by the Secretary, Department of Social Services (the Respondent) to refuse to grant him a Disability Support Pension (DSP), pursuant to section 94 of the Social Security Act 1991 (the Act).
Mr Butterworth lodged a claim for DSP on 3 May 2021. On 8 June 2021, Centrelink rejected Mr Butterworth’s claim for DSP, as he did not have an impairment rating of 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables). On 8 December 2021 a Centrelink Authorised Review Officer (ARO) affirmed the decision. Mr Butterworth sought review of the decision by the Social Services and Child Support Division of this Tribunal (Tier 1), which affirmed the decision on 9 March 2022. Centrelink is the service provider for Services Australia.
The application was heard via telephone on 25 July 2022. Mr Butterworth was self- represented and Ms Elyshia Saunders, Seconded Solicitor in the Litigation Branch of Services Australia, appeared for the Respondent. Mr Butterworth gave evidence under affirmation
THE ISSUEs IN CONTENTION
The issue in contention is whether Mr Butterworth was qualified for a DSP from the date of his claim, 3 May 2021, to a date 13 weeks thereafter, 2 August 2021 (the qualifying period). This is in accordance with section 4(1) of Schedule 2 of the Social Security (Administration) Act 1999 (the Administration Act).
The Tribunal must consider whether Mr Butterworth had:
(a)a physical, intellectual or psychiatric impairment(s);
(b)a fully diagnosed, treated and stabilised condition(s) which results in impairments attracting 20 points or more under the Impairment Tables; and
(c)a continuing inability to work.
BACKGROUND
Mr Butterworth is a 44-year-old man who lives alone in regional Tasmania. He ceased full-time work as a storeman in 2014, following a workplace injury to his cervical spine. Prior to this, he had a varied and rich work history across Australia. Mr Butterworth completed Year 12, then served for nine years in the Australian army. After leaving the army, he worked as a fly-fishing guide in Tasmania, a barramundi farmer in Queensland and the Northern Territory, and also worked as a general manager for a mining company for four years. Mr Butterworth is frustrated by his latest DSP claim, stating in his application for review at AAT1 on 8 December 2021:
I have been found to be permanently incapable of future work by Workers Compensation and my Superannuation company. I was on the Disability Support pension in the early 2000s. I decided to trial going back to work again. My back then completely went out on me. It is now 10 times worse than it was when I was on the pension. I am heavily medicated and I have other medical conditions as well. Employers have since said to me that I am medically unemployable. My Injuries are only going to get worse and are getting worse.
On 10 November 2020 a face-to-face job capacity assessment (JCA) was undertaken by Centrelink. The JCA assessment was undertaken by an accredited exercise physiologist and a registered psychologist and determined that Mr Butterworth’s:
(a)Chronic spinal canal stenosis / Chronic lower back pain was fully diagnosed, treated and stabilised and was causing him moderate functional impairment and awarded him 10 points under Table 4 – Spinal Function.
(b)Depression / Adjustment disorder was fully diagnosed but not fully treated and stabilised, as Mr Butterworth had only recently commenced using anti-depressants and his condition may improve in the next two years; nil points could be awarded to the condition
(c)Baseline work capacity was reduced to 8-14 hours per week due to his noted symptoms and functional impacts associated with the permanent medical conditions, chronic spinal canal stenosis / chronic lower back pain and depression / adjustment disorder. It was hoped his work capacity may increase to 15-22 hours per week in two years with intervention.
On 15 January 2021 another JCA was undertaken by Centrelink. It reiterated the findings of the 10 November 2020 report.
On 27 January 2021, Centrelink undertook a file-based assessment of medical eligibility for Mr Butterworth’s earlier DSP claim of 25 August 2020. It determined that as no new medical evidence had been presented since the JCA undertaken on 10 November 2020, the report remained current and valid and made no change to Mr Butterworth’s assessment.
On 3 May 2021, Mr Butterworth made an application for DSP citing his medical conditions as (1) chronic back and neck pain, (2) depression and (3) osteoarthritis and chronic back pain.
On 8 June 2021 Centrelink rejected Mr Butterworth’s claim for DSP as he had been assessed as not having an impairment rating of 20 points or more. However, it would appear no actual assessment of Mr Butterworth’s new claim of 3 May 2021 had been undertaken.
On 8 December 2021, a departmental ARO affirmed the earlier Centrelink finding on internal review, determining that Mr Butterworth did not meet the requirements for DSP as he did not have an impairment rating of 20 points. The reasons for the outcome state:
Your conditions of chronic cervical canal stenosis and lower back osteoarthritis are fully diagnosed, treated and stabilised. These conditions cause moderate functional impairment. This means your impairment rating is 10 points.
Your conditions of depression, adjustment disorder and right rotator cuff syndrome are diagnosed but not fully treated and stabilised. This means there is no impairment rating.
On 9 March 2022, AAT Tier 1 affirmed the ARO decision to reject Mr Butterworth’s DSP claim. AAT Tier 1 awarded Mr Butterworth an impairment rating of 20 impairment points, comprising 10 points from Impairment Table 4 - Spinal Function and 10 points from Table 5 - Mental Health Function. The Tribunal found:
…Mr Butterworth has a total of 20 impairment points, but 20 points were not obtained under a single Impairment Table. Therefore, he doesn’t meet the criteria for a severe impairment as defined in subsection 94(3B) of the Act and is required to have actively participated in a program of support in the 3-year period immediately before his claim for DSP.
Mr Butterworth told the tribunal he was reviewed by APM in 2016 and they had told him he was unemployable at that time. He confirmed he had not attended any program of support in the 3 years prior to his claim, but he has a referral to APM and is waiting for an appointment. The tribunal advised Mr Butterworth that non-attendance due to medical exemptions may affect any future claim for DSP.
Although the tribunal is understanding of the fact that Mr Butterworth had contact with APM more than 3 years before his claim, there is no evidence before the tribunal that Mr Butterworth had actively engaged in a program of support for a period of 18 months in the 3-year period before his claim for DSP or that he satisfies any of the other subsections to find he has met the participation requirements as required by legislation. As a result, the tribunal finds that Mr Butterworth did not satisfy paragraph 94(2)(aa) of the Act.
The tribunal finds, for the reasons set out above, Mr Butterworth does not satisfy paragraph 94(1)(c) of the Act. This means he was not qualified for DSP at the date of his claim.
On 17 March 2022, Mr Butterworth sought a review of the AAT Tier 1 decision by this division of the Tribunal (Tier 2), as he disagreed with the decision. He stated:
I have 20 points of impairment, this is what you need for DSP, but won't approve my application
Relevant Legislation and Issues
Eligibility for DSP
Section 94(1) of the Act provides that a person is qualified for DSP if:
(a)       the person has a physical, intellectual or psychiatric impairment; and
(b)       the person's impairment is of 20 points or more under the Impairment Tables;                  and
(c)       one of the following applies:
(i)        the person has a continuing inability to work;
Impairment Tables
Paragraph 6(3)(a) of the Impairment Tables require that an impairment rating can only be assigned if the condition causing that impairment is “permanent”.
Paragraph 6(4) of the Impairment Tables states that a condition is “permanent” if:
(a)       the condition has been fully diagnosed by an appropriately qualified    medical practitioner; and
(b)       the condition has been fully treated; and
(c)       the condition has been fully stabilised; and
(d)       the condition is more likely than not, in light of available evidence, to persist   for more than 2 years.
The introduction to each relevant Impairment Table requires that ‘Self-report of symptoms alone is insufficient’ and ‘There must be corroborating evidence of the person’s impairment’.
Paragraph 6(5) of the Impairment Tables states:
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.
Paragraph 6(6) of the Impairment Tables states:
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.
For the purposes of paragraph 6(7) of the Impairment Tables, ‘reasonable treatment’ is treatment that:
(a)      is available at a location reasonably accessible to the person; and
(b)      is at a reasonable cost; and
(c)     can reliably be expected to result in a substantial improvement in functional capacity; and
(d)      is regularly undertaken or performed; and
(e)      has a high success rate; and
(f)         carries a low risk to the person.
Section 5(2) of the Impairment Tables makes clear that they are function-based, rather than diagnosis-based. They describe functional activities, abilities, symptoms and limitations. They are designed to enable the assignment of ratings to determine the level of functional impact of an impairment and not to assess conditions.
Paragraph 6(1) of the Impairment Tables sets out that, when assessing functional capacity, a person’s impairment ‘must be assessed on the basis of what a person can, or could do; not on the basis of what a person chooses to do or what others do for the person’.
Paragraph 6(8) of the Impairment Tables further provides that the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating can be assigned. In other words, a person may be diagnosed with a condition but, with appropriate treatment, the impairment from the condition may not result in any functional impact.
Therefore, it is necessary to consider Mr Butterworth’s medical conditions with reference to the applicable Impairment Tables.
Continuing inability to work
Section 94(2) of the Act provides that a person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa) in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008‑2011 DSP starter who has had an opportunity to participate in a program of support—the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a) in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b) in all cases—either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years
Section 7 of the Social Security (Active Participation for Disability Support Pension) Determination 2014 (POS Determination) states that in order for a person to have satisfied the requirement of actively participating in a program of support, they must have participated in the program of support for at least 18 months in the 36-month period before their application for DSP.
The POS Determination also lists a number of exemptions to the general requirements that a person must participate in a program of support for at least 18 months, in cases where a person does not have a severe impairment. The POS determination relevantly provides at section 7(4):
(4)       This subsection is satisfied in relation to a person and a program of    support if:
(a)       the program of support was terminated before the end of the             relevant period; and
(b)       the program of support was terminated because the person   was unable, solely because of his or her impairment, to   improve his or her capacity to prepare for, find or maintain   work through continued participation in the program.
5) This subsection is satisfied in relation to a person and a program of support if:
(a)       At the end of the relevant period, the person is participating   in the program of support; and
(b)       The person is prevented, solely because of his or her    impairment, from improving his or her capacity to prepare for,                    find or maintain work through continued participation in the               program.
THE TRIBUNAL’S CONSIDERATION AND FINDINGS
Evidence before the Tribunal
The evidence before the Tribunal included documents provided by the Respondent under s 37 of the Administrative Appeals Tribunal Act 1975, referred to as the “T documents”. Mr Butterworth also lodged additional material.
Does Mr Butterworth have a physical, intellectual or psychiatric impairment?
Section 94(1)(a) of the Act provides that to qualify for DSP a person must suffer from an impairment.
The Respondent accepts that Mr Butterworth is suffering from spinal conditions, depression and adjustment disorder, and right rotator cuff syndrome/tennis elbow. The Tribunal finds that Mr Butterworth was living with these impairments during the qualifying period; and he therefore meets the requirements of section 94(1)(a) of the Act.
As noted above, section 94(1)(b) of the Act states that the second DSP qualification requirement is that the person’s impairment rating is 20 points or more under the Impairment Tables.
Does Mr Butterworth have medical conditions that result in impairments that can be rated 20 points or more under the Impairment Tables?
Mr Butterworth advised the Tribunal that:
(a)he was at a complete loss to understand why he did not qualify for the DSP as he had previously been in receipt of the payment for a lower back injury. He had “worked his butt off” to return to the workforce but had hurt himself even more by suffering a spinal injury in 2014; and he was now in a much worse condition;
(b)he felt that he should be awarded the DSP as he had been deemed totally and permanently disabled by both workers compensation and his superannuation fund;
(c)he had not worked since 2014 and had been surviving on his compensation lump sum payment but he was now in severe financial distress, having been forced to sell his car and the boat which he had purchased in the hope of starting his own business;
(d)he can’t afford to eat every day, having at most one meal a day, that he struggles to survive, is trying to quit smoking because of the cost, and has a dog which is his only company;
(e)he is in constant pain and struggles to sleep more than 3-4 hours a night, that sleep was a big issue as his body hurts from top to bottom, he has an aching back, and his elbow has been playing up;
(f)he had not sought to reapply for the DSP as his condition has been severe since 2014 and his medical evidence supported this;
(g)his depression was very bad, and he had previously tried to take his own life;
(h)his life had been ruined by his injury, he had already used his own resources to try and get work, but no one would hire him because he would be a liability.
Chronic cervical canal stenosis and lower back osteoarthritis (spinal conditions)
On 28 February 2014, Ms Liz Elphick, physiotherapist, reported that she had treated Mr Butterworth following a workplace incident where he strained his neck lifting 40kg into a “ute”. She noted that ‘he was tender on palpation over the left facet joints from mid cervical to upper thoracic’.
On 28 April 201,4 Dr Lionel Crompton, general practitioner, opined in a referral letter about Mr Butterworth:
He felt something ''Pop" in his neck late February at work when he was lifting a 40 kg bag of fertiliser, and has since had pain mostly L upper limb, paraesthesia same distribution & some muscle fasciculation especially at night. The pain is exacerbated by lifting. Imaging shows a disc lesion about C4 with the disc touching but not compressing the cord. He's getting a bit better by doing not much & I am giving him a try on RTW 20 hrs a week office & supervisory work. He is driving better now he can turn his neck a little.
TIO is going to want some guidance on his management. I am inclined to conservatism & think he should forget lifting stuff & carve out a new career in admin, supervision & advisory roles. Physio for strength & mobility is being arranged.
0n 14 August 2014, Associate Professor Gordon Stuart, Consultant Neurosurgeon, in a medico-legal report for Territory Insurance Office (TIO) diagnosed Mr Butterworth as suffering neck pain and brachial neuralgia due to a C4/5 intervertebral disc herniation precipitated by work injury. The report described Mr Butterworth’s status as:
Mr Butterworth's symptoms are worsening. He rates severity of pain up to level 10 on a scale of O to 10 where 10 is the worst pain Imaginable. This occurs on a bad day. Pain is located in the left shoulder, the left side of his back and the back of the left arm to the dorsum of the hand with pain in the region of the left thumb. The pain is described as being constant and disturbs sleep. Aggravating factors include walking, bending, twisting, coughing and sneezing.

On 3 September 2015, Associate Professor Stuart prepared an additional medico-legal report for TIO, which provided the following summary and assessment:
Mr Butterworth has developed a chronic pain condition following a work Injury aggravating pre-existing previously asymptomatic degenerative disease of the cervical spine. There may have been a C4/5 intervertebral disc herniation but most disc herniations resolve within six to twelve months of injury.
Diagnosis is chronic pain condition following aggravation or previously asymptomatic degenerative disease of the cervical spine. The features are consistent with the stated cause. Other related illnesses include overt depression. Previous employers and insurers are not involved. Treatment thus far has been unsuccessful.
My treatment recommendations would be to have assessment and management with a pain specialist with review of analgesic requirement, introduction of cognitive techniques for pain management and treatment to control depression and attempt at rehabilitation with an active exercise program and associated progressive return to work. These are my favoured options. However Mr Butterworth has a completely negative attitude towards such recommendations.
On 21 September 2015, Ms Ellie Lindsay, Senior Rehabilitation Consultant at APM, noted:
At the time of the last report Mr Butterworth continues to manage his medical condition by avoiding activities and taking strong pain medication which compromises his capacity to drive and stay alert. Mr Butterworth has continued to report significant reduction of his tolerances for standing, sitting. and walking. According to Dr Kennedy (GP5 Mr Butterworth continues to experience pain whilst resting.
On 10 May 2016, Dr Peter Sharman, Consultant Occupational Physician/Accredited Impairment Assessor, in a medico-legal report for Mr Butterworth, diagnosed that ‘Mr Butterworth has a left-sided cervical disc protrusion at the level of C4/5 with associated radicular symptoms and signs’.
On 28 July 2016, Associate Professor Stuart prepared an additional medico-legal report for TIO which provided the following summary and assessment:
Diagnosis is chronic pain condition following aggravation of a previously asymptomatic degenerative disease of the cervical spine. The features are consistent with the stated cause. Other related illnesses include overt depression. Previous employers and insurers are not involved. Treatment thus far has been unsuccessful. I have no additional treatment recommendations that are likely to improve his condition in relation to my speciality.
…
Prognosis I consider to be poor for any subsequent improvement.
On 4 September 2020, Dr Paul Hanson, general practitioner, certified that:
This is to confirm that I am Philip Butterworth's general practitioner.
This is to confirm that Philip suffers from chronic spinal canal stenosis in his cervical particularly around C4 C5.
He also suffers from chronic lower back pain from osteoarthritis.
This is confirmed that these conditions are permanent.
These conditions will not be improved by spinal surgery.
As result of this chronic pain he has depression. Also has pins and needles and occasional numbness in his arms.
On 21 April 2021, in a Centrelink medical certificate, Dr Hanson diagnosed Mr Butterworth with ‘lumbar osteoarthritis with chronic back pain’ and ‘C4/C5 disc prolapse with chronic neck pain with radiation of pain down his left arm and leg’ as the main medical conditions which significantly impact Mr Butterworth’s capacity to work. His symptoms were listed as ‘chronic back pain with reduction in ability to sit for long periods of time, stand for prolonged periods of time or bend’ and ‘chronic neck pain and with weakness in his left arm’.
Mr Butterworth expressed the view forcefully that Centrelink had made the process of applying for DSP so complex and time consuming that he believed they were trying to push him to go back to work. He stated that when he was previously in receipt of the DSP, he only had a lower back injury; but some 12-14 years later, his lower back hurts quite a lot, which was worsened by the cold weather. His evidence was that even his real estate agent realised he was suffering as they had installed heating in his home because he was no longer able to carry wood into the house.
As Mr Butterworth advised the Tribunal that his spinal condition was greatly impacting his functional ability, at the hearing the Tribunal explored with Mr Butterworth the functional impact of his spinal condition under Table 4 - Spinal Function. In particular, the Tribunal explored his capacity in respect of a severe functional impact. Table 4 states:
There is a severe functional impact on activities involving spinal function.
(1) The person is unable to:
(a) perform any overhead activities; or
(b) turn their head, or bend their neck, without moving their trunk; or
(c) bend forward to pick up a light object from a desk or table; or
(d) remain seated for at least 10 minutes.
Mr Butterworth’s evidence was that at the qualification period:
(a)he could not perform any overhead activities; he did not wash his hair; when he moved into his current home, he stored everything down low because he can’t reach up; and at the supermarket he can reach things at chest height but anything above that he requires help to reach;
(b)he has some ability to turn his head to the right, but he cannot turn it to the left and needs to rotate his entire body to turn his head left;
(c)he could not bend forward to pick up a lightweight object from a desk or table and would usually crouch if he needed to pick something up from a lower surface;
(d)he struggles to sit for long periods of time and constantly needs to get up to move around; and
(e)that he can drive for 40 minutes but then needs to stop to get out of the car and move around.
The Respondent contended that it was open to the Tribunal to find that Mr Butterworth’s spinal conditions attracts a 10-point impairment rating under Table 4 which provides:
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 applies:
(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).
The Respondent relied upon the following evidence of Mr Butterworth’s functional ability:
(a)Dr Crompton’s report of 28 April 2014, which stated that Mr Butterworth’s ‘pain is exacerbated by lifting’ and ‘he is driving better now he can turn his neck a little’.
(b)Associate Professor Stuart’s report of 14 August 2014, which stated:
Associated symptoms include numbness of his left hand with occasional Involvement of the right arm
…
Driving aggravates his symptoms. He is unable to do vacuuming, gardening or lawn mowing and needs help with any household duties.
…
Examination of the neck revealed a reduction of active voluntary neck movements with pain on various movements.
…
Examination of the lower spine revealed a good range of spinal flexion. When asked to touch his toes the fingers reached the level of mid shins. There was no muscle wasting in the lower limbs. Straight leg raising was achieved to 80°. Muscle power was normal. Sensation to light touch was Intact. Deep tendon reflexes, knee jerks and ankle jerks were present and symmetrical. Plantar responses were flexor. He was able to walk on heels, walk on toes and was able to squat.
(c)Dr Reid’s report of 13 May 2015, which stated:
He struggles with home duties such as cooking, cleaning and washing and is gaining some assistance from his current partner, friends and family. He finds it hard to be in one position for any length of time. Anything after 20 minutes causes neck pain and migraines. Mr Butterworth holds a licence and continues to drive. He performs shopping duties…His interests in shooting and fishing have been restricted. He continues to own a dog.
(d)Associate Professor Stuart’s report of 3 September 2015, which stated:
Mr Butterworth continues to report numbness of his left leg, left arm into the hand, migraine, disturbed sleep and depression…
He reported that driving beyond half an hour produces a migraine and he no longer drives, and used someone else to drive him to today's consultation. He is unable to do household duties such as vacuuming and receives cleaning services one to two hours per week. He no longer performs recreational pastimes.
…
There was a decreased range of active voluntary neck movements. In particular there was limitation of neck extension.
(e)Ms Ellie Lindsay (Senior Rehabilitation Consultant), in a 21 September 2015 Vocational Assessment Report, listed Mr Butterworth’s functional impairments as:
• Migraines/headaches
Numbness in left arm
• Numbness in left leg with pins and needles
• ·Tightness in the upper and lower back
• Low tolerance for walking, sitting and standing
• Avoidance of walking up inclines
• Experiences difficulty ascending and descending stairs
• Restricted range of movement and functional capacity due to prevalence of symptoms
• Restricted activities due to prescribed medication (particularly capacity to drive)
(f)Dr Sharman’s report of 10 May 2016, which stated that Mr Butterworth had a 15% whole person impairment and reported that:
Mr Butterworth reported being able to sit for 40 minutes, before requiring to stand.
Mr Butterworth reported being able to stand for 40 minutes, before needing to move around or sit down.
Mr Butterworth reported finding it difficult to walk on uneven ground or negotiate stairs but did not use walking aids.
Mr Butterworth could drive an automatic vehicle for 40 minutes before he needed a break.
Mr Butterworth could only lift one piece of firewood at a time.
Mr Butterworth is independent with all activities of daily living but is slower and needs to use a shower chair.
Mr Butterworth is no longer able to vacuum or undertake heavy cleaning.
Mr Butterworth is not able to pursue his usual recreational pursuits of hunting or fishing.
On examination there was markedly limited extension and flexion of the cervical spine, with rotation less than 50% of normal in both directions.
In a vehicle with automatic transmission he can drive for approximately 40 minutes before he needs a break.
(g)Mr Butterworth’s functional impairments were most recently assessed on 10 November 2020 by the JCA assessor, which reported his self-assessment of his functional capacity to include the following:
The client reported pain affecting his neck and left shoulder, numbness down the left arm, approximately 50 percent loss of range of movement in the neck, he is unable to lift his left arm above shoulder height, and he tends to drop things from his left hand. The client reported no impairment of his right hand, arm or shoulder and he is right hand dominant. The client reported on a daily basis he has to limit the amount of physical activity he performs and too much physical activity can result in a migraine. The client reported he lives alone and is independent with all activities of daily living. The client reported due to his spinal condition he is able to reach above head height with his right arm but not his left, he has difficulty moving his head to look in all directions but is still able to drive, he is able to drive an automatic car for 1-2 hours but needs breaks, and he is unable to bend to floor level but can bend to approximately knee height. The client reported on a good day he will go walking for approximately 1 hour but on a bad day he will not go walking at all. The client reported he is able to attend the supermarket and carry his groceries independently. The client reported he is able to carry kettles, pots and pans, and a 2 litre carton of liquid but avoids carrying heavier items such as a full washing basket. The client reported he is able to vacuum his own house but only does this approximately every 6 weeks so as to not aggravate his pain. The client reported he sometimes pays someone to clean his bathroom.
The Respondent contended that the maximum impairment rating open to the Tribunal to assign for the functional impairment caused by Mr Butterworth’s spinal conditions is 10 impairment points under Table 4.
The Respondent relied upon the JCA report of 10 November 2020 (reaffirmed in the JCA report of 15 January 2021), which found Mr Butterworth’s functional capacity may be assigned a 10-point impairment rating under Table 4, on the basis that he satisfies Table 4, Impairment Rating 10, Paragraph (1)(a) and 1(b):
(1) The person is able to sit in or drive a car for at least 30 minutes, and the following applies:
(a) the person is unable to sustain overhead activities (e.g. accessing items over head height)
(b) the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder)
The Respondent agreed with the AAT1 finding that the last MRI on Mr Butterworth’s cervical spine took place on 5 May 2017, and that there was limited medical evidence provided since 2016 which speaks to the functional impairment of his spinal conditions during the qualification period. Furthermore, they argued there was no medical evidence that supports a finding of an impairment rating of 20 points under Table 4.
Having considered all the evidence before it, the Tribunal is satisfied that Mr Butterworth’s long-standing spinal condition was fully diagnosed, treated and stabilised during the qualifying period, relying upon radiological findings and copious medical reports over many years.
The Tribunal concludes that Mr Butterworth’s lumbar osteoarthritis with chronic back pain and C4/C5 disc prolapse with chronic neck pain with radiation of pain down his left arm and leg was having a moderate functional impact on spinal activities, in accordance with Table 4 - Spinal Function. The Tribunal relies upon:
(a)Dr Sharman’s report of 10 May 2016, being the most contemporaneous report to the qualification period, and which outlines the functional impact of Mr Butterworth’s spinal condition;
(b)the report of Dr Hanson submitted as part of Mr Butterworth’s DSP claim; and
(c)Mr Butterworth’s evidence at the hearing.
Mr Butterworth’s evidence, corroborated by his treating practitioners, was that during the qualifying period, he could sit and drive for 30 minutes, was unable to sustain overhead activities, had difficulty turning his head to look in all directions, and had difficulty bending but did not require assistance from another person to get out of a chair.
The Tribunal could not conclude on any of the evidence presented, including that of Mr Butterworth himself, that his spinal condition was causing him a severe functional impact. All the evidence indicated that Mr Butterworth was able to remain seated for at least 10 minutes. While Mr Butterworth did attest that he experienced pain whilst sitting, his evidence, and that of his treating doctors, confirmed that he could sit for 40 minutes as he was able to drive for 40 minutes before he needed to get out and walk around.
The Tribunal therefore awards Mr Butterworth 10 points under Table 4 of the Impairment Tables in respect of this condition.
Depression and adjustment disorder (mental health conditions)
On 13 May 2015, Dr Phillip Reid, psychiatrist, in a medico-legal report for TIO, diagnostically suggested that Mr Butterworth was suffering from an ‘Adjustment Disorder with depressed mood. There has been sleep disturbance, low mood and frustration and at times even suicidal ideas. He has adjusted poorly to his changed physical circumstances’. Dr Reid opined:
Despite his frustration, Mr Butterworth's primary clinical concern is that of his neck pain with restrictions to shoulder and arm. These symptoms have restricted his capacity to work, but also his leisure pursuits of hunting, shooting and fishing. His mental health reflects a poor adjustment to his current physical status. In addition to his injury, he has endured a relationship break down whilst in the Northern Territory and the loss of his father before he could reconcile with him. His mental health worsened for a period when he struggled financially and found himself in conflict with the insurer. From here he has re-established himself to a degree with a new relationship and accommodation in an isolated area in the highlands of Tasmania.
His mental health symptoms have settled to a degree through this adaptation and some psychological counselling through Ms Ann Vandengart. In the past Mr Butterworth has coped with loss and conflict by moving on. He is not able to do this with his persistent pain. Initially he drank to excess and now he finds himself in a negative, frustrated mood state.
Unfortunately, prognosis for his Adjustment Disorder will generally reflect the outcome of his neck condition. Symptoms generally improve if he is able to recover from his injury and become more functional. Alternatively, if his neck pain is chronic, then symptoms are also likely to persist. The situation is rarely cured through antidepressant medication or psychological counselling, but more lifestyle changes characterised by avoidance, isolation and to minimise stress and conflict that would worsen his irritability.
On 21 April 2021, in a Centrelink DSP claim form, Dr Hanson diagnosed depression as one of the main medical conditions which significantly impacted Mr Butterworth’s capacity to work. Symptoms were listed as ‘low affect low mood low enjoyment in life’.
Mr Butterworth was again forceful in his criticism of the process of applying for the DSP, stating that Centrelink had been doubting his claims for the last three years, and that he had been told that he had lied, and he could go back to work. He stated that he had supplied everything that was requested of him, but Centrelink had lost his paperwork for over a year; and that the whole system had left him feeling worthless, and he believed that Centrelink hoped he would take his own life.
As Mr Butterworth advised the Tribunal that his depression was significantly impacting his functional ability, the Tribunal also explored the functional impact of his mental health impairment under Table 5 - Mental Health Function of the Impairment Tables. In particular, the Tribunal explored his capacity in respect of a severe functional impact. Table 5 states:
The person has severe difficulties with most of the following:
(a)       self care and independent living;
Example: The person needs regular support to live independently, that is, needs visits or assistance at least twice a week from a family member, friend, health worker or support worker.
(b)       social/recreational activities and travel;
Example: The person travels alone only in familiar areas (such as the local shops or other familiar venues).
(c)       interpersonal relationships;
Example 1: The person has very limited social contacts and involvement unless these are organised for the person.
Example 2: The person often has difficulty interacting with other people and may need assistance or support from a companion to engage in social interactions.
(d)       concentration and task completion;
Example 1: The person has difficulty concentrating on any task or conversation for more than 10 minutes.
Example 2: The person has slowed movements or reaction time due to psychiatric illness or treatment effects.
(e)       behaviour, planning and decision-making;
Example: The person’s behaviour, thoughts and conversation are significantly and frequently disturbed.
(f)        work/training capacity.
Example: The person is unable to attend work, education or training on a regular basis over a lengthy period due to ongoing mental illness.

Mr Butterworth’s evidence was that during the qualification period:
(a)he employed someone to clean his house as he is not able to;
(b)he had one good friend who employed him years ago and who was like a father to him. This friend supported him, and without him he wouldn’t have anyone;
(c)he only left his home to get groceries or attend medical appointments;
(d)he kept to himself a lot; he is a loner, and definitely more so now, because before his injury he worked at a good company and had a girlfriend. Since his injury no relationship has ever worked out as they generally get sick of his mood swings and how his medication affects him. And now he can’t even be bothered trying to find a girlfriend;
(e)he can’t concentrate or complete tasks; he has probably started 200 things but never gets anything finished;
(f)he has great difficulty with his behaviour, planning and decision-making; he makes a plan but can’t follow it and then gets very frustrated when things don’t work out;
(g)he had no ability to work or train; he had been exited from his return-to-work program under his Workcover claim as they all decided he would never be able to get another job; he had reconnected with APM Employment this year and undertaken a NICE program, as he thought he might be able to start his own business because he could pace himself, but he is not even sure if that would work out.
The Respondent contended that Mr Butterworth’s mental health conditions of depression and adjustment disorder had been diagnosed but were not fully treated and stabilised at the time of the claim or during the qualification period. The Respondent relied upon the following evidence:
(a)Dr Phillip Reid’s (psychiatrist) diagnosis of Mr Butterworth on 13 May 2015 with adjustment disorder and depressed mood, and notes previous treatment including psychological counselling. Possible future treatment was recommended as:
…access to an antidepressant to provide some amelioration for his pain, mood and attention, plus an agreed number of psychological sessions. This usually comprises 10 - 12 sessions with a psychologist in a bid to help his mood and pain management.
(b)Associate Professor Gordon Stuart’s report of 3 September 2015, which states that Mr Butterworth currently sees a psychiatrist to treat his depression, and he would agree with Dr Hunn’s recommendation for Mr Butterworth to participate in a multidisciplinary pain program, the expected benefits to be ‘pain management, control of depression and rehabilitation’. Goals to be achieved would be ‘control of depression and a graduated return to work’. The Respondent recognised however, that Associate Professor Stuart’s professional opinion was that he is ‘pessimistic regarding the likelihood of success at this late stage’.
(c)Dr Peter Sharman’s (consultant occupational physician) report of 10 May 2016, which states that:
Dr Reid noted that he had adjusted poorly to his changed physical circumstances. In relation to prognosis, Dr Reid suggested that the prognosis was dependent of then outcome for his neck condition and that his psychological symptoms are likely to improve if his neck improves and he becomes more functional. Dr Reid indicated that cognitive behavioural strategies were unlikely to be effective and although antidepressant medication might provide symptomatic relief, would not be curative
(d)Associate Professor Stuart’s report of 28 July 2016, which recommended treatment for the Applicant’s depression to include continued psychiatric treatment.
(e)A discharge summary record of 9 February 2017 that Mr Butterworth was admitted to hospital with a poly-pharmacy overdose, secondary to PTSD and his mental health condition. Mr Butterworth was recorded to have undergone a psychiatric review during this admission, though no report with regards to this psychiatric review was before the Tribunal.
(f)Medical Certificates certified by Dr Paul Hanson on 9 April 2020 and 21 April 2021, noting depression as a current condition and past treatment to include anti-depressants. No current treatments were listed.
(g)The JCA completed on 10 November 2020, which summarises Mr Butterworth’s depression as follows:
Onset: 2014. This condition is confirmed in correspondence from doctor Paul Hanson (GP) dated 4/09/2020, and in the Medical Assessment by doctor Philip Reid (psychiatrist) dated 13/05/2015.
Past treatment: Psychiatric assessment and psychological counselling (doctor Philip Reid, psychiatrist, 13/05/2015).
Doctor Philip Reid (13/05/2015) recommended treatment with antidepressant medication plus further psychological intervention. The client reported he only saw the psychiatrist (doctor Reid) once in 2015, and he last saw a psychologist in 2017.
Current treatment: The client reported he recently (approximately 2 weeks ago) commenced antidepressant medication (Sertraline) prescribed by his GP, and he takes Nitrazepam (benzodiazepine) as needed.
Future treatment: The client reported planned follow-up with his GP to review the effectiveness of the antidepressant medication.
As the condition has been assessed and diagnosed by a psychiatrist it is considered fully diagnosed. As the client has only recently commenced antidepressant medication and they may also benefit from psychologist intervention (as recommended by doctor Philip Reid), this condition cannot be considered fully treated and stabilised.
Type of condition: This condition is considered permanent and fully diagnosed, but not fully treated and stabilised as significant improvement may occur with appropriate medical treatment / intervention within the next two years.
The Respondent contended that Mr Butterworth’s depression and adjustment disorder had not been fully treated and stabilised at the time of the claim or within the qualification period, and therefore these conditions attract no impairment points. The Respondent acknowledged that Mr Butterworth had received treatment from Dr Reid, a psychiatrist, in 2015. However, they argued Mr Butterworth was recommended by Associate Professor Stuart to continue ongoing psychiatric treatment in 2016, but it is unclear from the evidence if this psychiatric treatment continued after 2015, and that Mr Butterworth advised the JCA that he only saw Dr Reid once in 2015.
Furthermore, the Respondent contended that between 9 February 2017 and November 2020, there was no medical evidence to support Mr Butterworth had ongoing depression or an adjustment disorder, or any ongoing treatment of these conditions. The Respondent submitted that the medical certificate of 4 September 2020 recorded Mr Butterworth’s depression but did not list any current treatment. Additionally, Mr Butterworth advised the JCA on 10 November 2020 that he had only been taking antidepressant medication for two weeks prior to the assessment.
The Respondent did acknowledge that in 2015 Dr Reid opined that cognitive behavioural strategies were unlikely to be effective and that antidepressant medication might provide symptomatic relief but would not cure Mr Butterworth. However, it contended that when considering if a condition is fully stabilised, the question which must be considered is not whether the condition is curable, but rather whether reasonable treatment for the condition is likely to result in significant functional improvement enabling Mr Butterworth to undertake work in the next two years. The Respondent contended that Mr Butterworth’s mental health conditions required further medical investigation, given the lack of evidence that he has undertaken reasonable treatments such as antidepressants or psychological intervention, or whether a medical review of those treatments has been undertaken to determine if any alteration in treatment would result in significant functional improvement.
The Respondent contended that, in the alternative, if the Tribunal was to find Mr Butterworth’s depression was fully diagnosed, treated and stabilised, it was open to the Tribunal to find Mr Butterworth’s depression attracts a 10-point impairment rating under Table 5:
There is a moderate functional impact on activities involving mental health function.
(1) The person has moderate difficulties with most of the following:
(a) self care and independent living;
Example: The person needs some support (that is, an occasional visit by or assistance from a family member or support worker) to live independently and maintain adequate hygiene and nutrition.
(b) social/recreational activities and travel;
Example 1: The person goes out alone infrequently and is not actively involved in social events.
Example 2: The person will often refuse to travel alone to unfamiliar environments.
(c) interpersonal relationships;
Example: The person has difficulty making and keeping friends or sustaining relationships.
(d) concentration and task completion;
Example 1: The person finds it very difficult to concentrate on longer tasks for more than 30 minutes (such as reading a chapter from a book).
Example 2: The person finds it difficult to follow complex instructions (such as from an operating manual, recipe or assembly instructions).
(e) behaviour, planning and decision-making;
Example 1: The person has difficulty coping with situations involving stress, pressure or performance demands.
Example 2: The person has occasional behavioural or mood difficulties (such a temper outbursts, depression, withdrawal or poor judgement).
Example 3: The person’s activity levels are noticeably increased or reduced.
(f) work/training capacity.
Example: The person often has interpersonal conflicts at work, education or training that require intervention by supervisors, managers or teachers or changes in placement or groupings.
The Respondent relied upon following evidence, for this alternative contention:
(a)Dr Reid’s report of 13 May 2015, which states:
There has been sleep disturbance, low mood and frustration and at times even suicidal ideas. He has adjusted poorly to his changed physical circumstances
…His adjustment symptoms in and of themselves would create difficulties in the workplace with poor frustration tolerance, motivation and poor concentration.
(b)Ms Ellie Lindsay report in 2015, which states:
Mr Butterworth indicated his physical condition has had a negative impact on his ability to socialise. According to Mr Butterworth his level of motivation fluctuates daily due to pain and discomfort.
(c)JCA report of 10 November 2020, which notes:
The client reported his symptoms have improved slightly since commencing antidepressant medication approximately 2 weeks ago but he still experiences symptoms including low mood, low motivation, social avoidance, agitation, and mood instability
The Respondent contended that from the corroborating evidence it may be inferred that Mr Butterworth has moderate difficulties in the workplace, with concentration and task completion, interpersonal relationships, and behaviour, due to his poor frustration tolerance, motivation and concentration.
The Respondent agreed with the AAT1, that Mr Butterworth has provided minimal medical information within the two years prior to his DSP claim, evidence which could corroborates the severity of his functional impairment resulting from his depression.
The Respondent also contended that there is no further evidence available which speaks to the functional impairment of Mr Butterworth’s depression during the qualification period, that supports a greater impairment rating under Table 4 of the Impairment Tables.
Having considered all the evidence before it, the Tribunal is satisfied that Mr Butterworth’s long-standing mental health condition described as depression was fully diagnosed, treated and stabilised during the qualifying period. The Tribunal concurs with the findings of the AAT1 that this condition could be assigned a rating under the Impairment Tables. The Tribunal was not persuaded by the Respondent’s contention that Mr Butterworth’s mental health condition had not been fully treated and stabilised at the time of the claim or within the qualification period.
The Tribunal relied upon the evidence of Dr Reid, who diagnosed Mr Butterworth as suffering from an Adjustment Disorder with depressed mood; and who noted in his 13 May 2015 report that Mr Butterworth had undertaken appropriate treatment of counselling and medication (including pregabalin and amitriptyline); and that he considered the condition stabilised, opining:
Unfortunately, Mr Butterworth's presentation does not lead me to believe that psychiatric intervention will make a huge impact on his predicament.
Additionally, the Tribunal was informed by the medical certificates of Dr Hanson, who has consistently certified Mr Butterworth as unfit for work as he is suffering from depression resulting in low mood and low enjoyment of life, noting past psychological treatment and current treatment, being antidepressants.
The Tribunal notes the introduction to Table 5 of the Impairment Tables clearly outlines the following, for assessment of a mental health condition:
Self-report of symptoms alone is insufficient.
· There must be corroborating evidence of the person’s impairment.
· Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
report from the person’s treating doctor;
supporting letters, reports or assessments relating to the person’s mental health or psychiatric illness;
interviews with the person and those providing care or support to the person.
As there was no supporting evidence of the functional impact of Mr Butterworth’s mental health condition during the qualification period, the Tribunal concurs with the AAT1 finding that this condition could not be rated as severe. While Dr Hanson notes low mood and enjoyment of life, he does not indicate how this impacts Mr Butterworth’s functionality. The most recent medical evidence is from Dr Sharman’s report of 10 May 2016, which noted:
Dr Reid advised that Mr Butterworth remained incapacitated for work, primarily as a result of his neck injury, but he indicated that his adjustment symptoms would also create difficulties in a workplace due to his poor frustration tolerance, motivation and concentration.
The Tribunal also noted Mr Butterworth’s frustration and complete lack of tolerance during the hearing process.
Therefore, the Tribunal considers that Mr Butterworth’s depression was having a moderate functional impact on activities requiring mental health function in accordance with Table 5. Mr Butterworth’s self-reported evidence was that during the qualifying period he could care for himself, had one good friend who looked out for him, he did not socialise, all his relationships had broken down, he could not concentrate, plan or make decisions, and he had no ability to work or study.
The Tribunal does not conclude that Mr Butterworth’s mental health condition was having a severe impact on his mental health function during the qualification period, as he was still able to live independently, did not need another person to assist with his self-care and had been able to concentrate, plan and participate fully in the process of applying for his DSP and seeking review of the decision.
The Tribunal therefore awards Mr Butterworth 10 points under Table 5 of the Impairment Tables in respect of his mental health condition.
Right rotator cuff syndrome/tennis elbow (upper body conditions)
The Respondent contended that Mr Butterworth’s condition of right rotator cuff syndrome was diagnosed but not fully treated and stabilised at the time of the claim or during the qualification period.
The Respondent contended that Mr Butterworth’s condition of tennis elbow was not fully diagnosed, treated and stabilised at the time of the claim or during the qualification period.
The Respondent relied upon the following evidence:
(a)Associate Professor Stuart’s report of 14 August 2014, which states, with regards to Mr Butterworth’s upper limbs/ shoulder girdles:
Examination of the upper limbs revealed no muscle wasting. Muscle power was normal. Deep tendon reflexes, biceps jerk, triceps jerk and brachioradialis jerks were present and symmetrical. Sensation to light touch was Intact although there was some subjective altered sensation in the ulnar border of the right hand.
(b)Associate Professor Stuart’s report of 3 September 2015, which states:
There was a subjective weakness of the left upper limb which he was unable to abduct beyond shoulder level. Deep tendon reflexes, biceps jerk, triceps jerk and brachioradialis jerks were present and symmetrical. Sensation to light touch was intact and his hands were working-stained and callused.
In Summary, physical examination revealed a reduction in active voluntary neck movements, some subjective weakness of the left upper limb and limited abduction of 1he left upper limb but no neurological deficit (sic.).
(c)Dr Sharman’s report of 10 May 2016, which states:
The neck, shoulder and left upper limb symptoms are entirely consistent with a cervical discal prolapse causing cervical nerve root impingement.
…
Mr Butterworth has a left-sided cervical disc protrusion at the level of C4/5 with associated radicular symptoms and signs.
(d)On a Centrelink medical form, Dr Hanson diagnoses Mr Butterworth on 21 April 2021 with ‘Right shoulder rotator cuff syndrome’ as an ‘Other medical conditions’.
Mr Butterworth advised the Tribunal that he had significant pain in his elbow and shoulders. He stated that he was trialling injections in his elbow to help with the pain. He said he had sold his manual car as he could no longer drive it and purchased an automatic with all the bells and whistles to assist him, such as electronic mirrors, reverse cameras, enlarged screen and other devices to minimise his need to move his neck, shoulders and back while driving.
The Respondent contended that it was not open to the Tribunal to determine that Mr Butterworth’s upper body conditions were fully diagnosed, treated and stabilised.
The Respondent contended that Mr Butterworth had omitted to provide any further contemporaneous evidence of a current or ongoing investigation, or of past or present treatment of these upper body conditions as at the date of the claim or during the qualification period. Medical evidence with reference to Mr Butterworth’s shoulder and upper limb symptoms have been assessed as relevant to his diagnosed spinal conditions.
The Respondent agreed with the AAT1 that these conditions require further medical investigation for diagnosis and treatment. The Respondent argued that these conditions could not be assessed under the Impairment Tables, as Mr Butterworth had not provided evidence of undertaking treatment or undertaken specialist review for his right shoulder rotator cuff syndrome; and that no medical evidence had been provided in relation to the diagnosis or treatment of his tennis elbow.
Having considered all the evidence before it, the Tribunal is satisfied that Mr Butterworth’s right shoulder rotator cuff syndrome was fully diagnosed during the qualifying period. However, the Tribunal found there was no corroborating medical evidence to confirm the condition was fully treated and stabilised during the qualification period; and as such no impairment points could be awarded for this condition.
Impairment Rating
The Tribunal has found that Mr Butterworth has an overall impairment rating of 20 points, with 10 points allocated under Table 3 (Spinal Functions), 10 points allocated under Table 5 (Mental Health Function), and nil points under Table 2 (Upper Limb Functions). Therefore, Mr Butterworth satisfies section 94(1)(b) of the Act
Does Mr Butterworth have a continuing inability to work?
To qualify for the DSP, Mr Butterworth must not only satisfy the requirement that he has impairments that can be assigned 20 points or more under the Impairment Tables; he must also demonstrate that he has a continuing inability to work. Mr Butterworth would be considered to have a continuing inability to work if he has actively participated in a program of support (POS) within the meaning of section 94(3C) of the Act prior to his claim for DSP, and his impairment is of itself sufficient to prevent him from improving his capacity to prepare for, find or maintain work through continued participation in the program. A person with a severe impairment is not required to satisfy the Secretary that they have actively participated in a program of support. A person’s impairment is a severe impairment if it attracts 20 points or more under a single Impairment Table.

The Tribunal has to strictly apply the program of support (POS) requirement, because it does not have the power to dispense with that requirement under the operation of section 94(2)(aa) of the Act. It is irrelevant whether an Applicant was aware of the requirement.
The Respondent contended that Mr Butterworth did not satisfy section 94(2)(aa) of the Act during the qualification period, as his Centrelink records indicated that he had completed 0 days in the POS period, which was less than the 18 months required under paragraph 7(2) of the POS Determination. The Respondent further argued that there was no evidence that Mr Butterworth had completed a POS that was less than 18 months (in accordance with paragraph 7(3)), or that his participation was terminated (in accordance with paragraph 7(4)).
The POS Determination requires that an Applicant for DSP must actively participate in a POS for 18 months within the three years prior to the date of claim. As the Tribunal has found that Mr Butterworth does not has a severe impairment that is assigned 20 points or more under a single Impairment Table, he is required to have participated in a POS. He has not participated in a POS and accordingly does not satisfy section 94(2)(aa) of the Act.
Mr Butterworth contended that he had satisfied the POS as AMP had previously determined he was unfit for work for the foreseeable future.
The Tribunal notes Ms Lindsay’s (Senior Rehabilitation Consultant at AMP) closure report of 21 September 2015, which states:
Request by TIO as according to medical evidence Mr Butterworth will continue to certified unfit for work for the foreseeable future.
Since the last report APM and Mr Butterworth have continued vocational counselling albeit by phone as Mr Butterworth has received medical advice that he can no longer drive a manual vehicle. Vocational counselling has continued to be compromised given Mr Butterworth's ongoing medical certification of unfit. Despite this, a Vocational Assessment was conducted and work options identified which given Mr Butterworth's medical condition, were not supported by Dr Kennedy (GP). Mr Butterworth's resume was also updated.
The Tribunal determines that as this report is outside the three-year period prior to Mr Butterworth’s claim for DSP, it does not exempt him from undertaking the POS; and therefore, he has not fulfilled his participation requirements contained in the legislation.
Given that Mr Butterworth had been awarded 20 points by the AAT1, he was completely frustrated by the fact that he did not therefore qualify for the DSP. Mr Butterworth claimed that he had not been aware of the requirement to undertake a POS, and again expressed his frustration at the complexity of applying for the DSP. At the conclusion of the hearing, the Tribunal invited Mr Butterworth to provide evidence that he had re-engaged with an employment disability support service. Mr Butterworth obtained a letter from APM dated 3 August 2022 which indicated that he had been voluntary exited from the POS. Unfortunately, as Mr Butterworth re-engaged with APM employment in 2022, this was again outside the qualification period, and therefore does not fulfill the requirement that he actively participate in a POS for this DSP application.
As Mr Butterworth failed to commence the POS within the three-year period prior to his application for the DSP, he cannot be exempted from the POS, nor was there any evidence in this period which demonstrated he was unable, solely because of his impairment, to improve his capacity to prepare for, find or maintain work through continued participation in the program.
The Respondent contended that Mr Butterworth had a continuing ability to work, based on the JCA assessment that determined Mr Butterworth had a baseline work capacity of 8-14 hours per week and a capacity for work within two years (with intervention) of 15-22 hours per week.
Associate Professor Stuart’s report of 14 August 2014 opines that:
Fitness for Work:
Mr Butterworth is currently not able to work. I am unable to estimate how long this incapacity will remain as it will be dependent on the success of subsequent management. Sequelae on recreational and social functioning have been significant. He is able to drive for short distances only, has difficulties and needs help with household duties, is unable to do gardening or lawn mowing or vacuuming and his activities of fishing and pig hunting have ceased. Active rehabilitation will be required. In relation to psychogenic potentiation nonorganic factors, he stated that he has been depressed and saw a psychiatrist but declined psychiatric treatment. He stated that he broke up with his partner due to his current Illness.
Prognosis:
Prognosis in the short-term is poor. Prognosis in the long-term is uncertain and will be dependent on the success of subsequent treatment and rehabilitation.
Dr Reid ‘s report of 13 May 2015 considered Mr Butterworth’s ability to return to the workplace in any capacity and states that:
Mr Butterworth's primary incapacity appears to be his neck pain and pathology. From a mental health point of view, his adjustment symptoms in and of themselves would create difficulties in the workplace with poor frustration tolerance, motivation and poor concentration. Unless Mr Butterworth was agreeable and appropriate work could be found in keeping with his injury, then his mental state would likely deteriorate if forced into a situation that was not sustainable. Given his current presentation, I think he remains incapacitated for work.
Associate Professor Stuart’s report of 3 September 2015 opines that:
Mr Butterworth is currently unable to resume work. I am unable to estimate how long this incapably will remain as it will be dependent on the success of subsequent management. Active rehabilitation should be as recommended above. However in light of Mr Butterworth’s current attitude, I consider prospects of success are minimal.
Associate Professor Stuart’s report of 28 July 2016 opines that:
Mr Butterworth is currently unable to resume work. I would expect this incapacity to be permanent.
The JCA of 15 January 2021 lists the following barries and intervention required to hopefully increase Mr Butterworth’s work capacity to 15-22 hours per week:
Barriers to be addressed
Barrier: Physical limitations restricting type of work
Barrier: Workplace support required
Barrier: Chronic pain
Barrier: Episodic fluctuations
Barrier: Limited physical abilities
Barrier: Mood Disorder
Support Requirements
Requirement: Cope with work related stress and pressure Duration: 12 to 24 months
Requirement: Physically complete work tasks Duration: 12 to 24 months
Requirement: Build work capacity Duration: 12 to 24 months
Requirement: Complete job search activities Duration: 12 to 24 months
Requirement: Maintain sustainable employment Duration: 12 to 24 months
Interventions
Interventions that were identified for this client
Intervention: Post placement support
Intervention: Vocational assessment/counselling
Intervention: Functional capacity evaluation/assessment
Intervention: Other psychological intervention
Intervention: Psychiatric services/treatment
Intervention: Pain management program
The Tribunal finds that Mr Butterworth had not completed a program of support as there was no evidence confirming that he had participated in such a program for the requisite 18 months within the three years prior to his claim. Nor was there any evidence which confirmed that Mr Butterworth was unable, solely because of his impairment, to improve his capacity to prepare for, find or maintain work through continued participation in the program. He therefore could not be found to have a continuing inability to work to satisfy section 94(1)(c) of the Act. However, based on the evidence outlined above, the Tribunal accepts that Mr Butterworth would struggle to find or maintain any form of employment given his current mental health condition. Regardless of the Tribunal’s observation, this does not exempt him from participation in a POS.
Conclusion
Having carefully considered all the evidence before it, the Tribunal finds that at the time of his DSP application of 3 May 2021, Mr Butterworth had the required 20 impairment points to satisfy section 94(1)(b) of the Act. However, as he did not have a severe impairment within the meaning of the Act as the 20 impairment points were under more than one Table, he was also required to complete a program of support. Without having done so, he has not met all of the requirements to be eligible for the DSP, and therefore this application cannot succeed.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 105 (one hundred and five) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke AO, Member

...........[sgd]............................
Associate
Dated: 30 August 2022

Date of hearing:
25 July 2022

Applicant:

Self-Represented

Respondent representative:

Ms Elyshia Saunders

Respondent solicitors:

Services Australia

[2022] AATA 2858

30 August 2022

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Appeal

Date of hearing:	25 July 2022
Applicant:	Self-Represented
Respondent representative:	Ms Elyshia Saunders
Respondent solicitors:	Services Australia