Chant and Secretary, Department of Social Services (Social services second review)
[2016] AATA 410
•21 June 2016
Chant and Secretary, Department of Social Services (Social services second review) [2016] AATA 410 (27 May 2016)
Division
GENERAL DIVISION
File Number(s)
2015/5203
Re
Ricky Chant
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Deputy President Dr P McDermott RFD
Date 27 May 2016 Date of written reasons 21 June 2016 Place Brisbane I affirm the decision under review.
............................[sgd]............................................
Deputy President Dr P McDermott RFD
Catchwords
SOCIAL SECURITY – disability support pension – whether applicant’s conditions are permanent – applicant does not have a severe impairment – applicant has a continuing capacity for work – applicant has not participated in a program of support – decision under review affirmed
Legislation
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth) Sch 2, Pt 2, cl 4Cases
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Secondary materials
Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (Cth) s 6
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
21 June 2016
Mr Ricky Chant (“the applicant”) seeks review of a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (“the SSCSD”) made on 8 September 2015.
BACKGROUND
The applicant is currently 53 years of age. On 13 February 2015 the applicant lodged a claim for a Disability Support Pension (“DSP”).[1] The conditions listed by the applicant on the claim form were:[2]
Back and left leg
lumber spine
Nerve damage
[1] Exhibit A, T-Documents, T6.
[2] Exhibit A, T-Documents, T25 at p. 147.
On 25 March 2015 Centrelink rejected the applicant’s claim for DSP.[3]
[3] Exhibit A, T-Documents, T7.
The applicant applied for a review of the decision. On 27 May 2015 an Authorised Review Officer (“ARO”) determined that the decision to reject the applicant’s claim for DSP was correct.[4]
[4] Exhibit A, T-Documents, T9.
On 28 May 2015 the applicant lodged a request for the Social Services and Child Support Division of the Administrative Appeals Tribunal (“the SSCSD”) to review the decision of the ARO.[5] On 27 August 2015 the SSCSD affirmed the decision under review.[6]
[5] Exhibit A, T-Documents, T10.
[6] Exhibit A, T-Documents, T2.
On 6 October 2015 the applicant lodged a request for the General Division of the Administrative Appeals Tribunal to review the decision of the SSCSD. The applicant stated in the reasons for the application:[7]
The reason that I think the decision is wrong, as I go on the pain (nerve) and agree on what my surgeon has said in he reports that I do suffer pain as he has reported on me, and I also agree with my GP that I am unfit for working as he reffers [sic] to my surgeon as well. As I’m in pain when I walk, sit to [sic] long, stand to [sic] long and believe me I suffer. And I don’t understand how another person beside another surgeon can make a medical condition decision…
EVIDENCE
[7] Exhibit A, T-Documents, T at p. 2.
The Applicant
The applicant gave oral evidence at the hearing about his conditions which is later referred to in these reasons. I am concerned about aspects of the applicant’s evidence. He was asked about what housework he does, for example, about lawn mowing. There is a report from Dr Isaacs dated 19 March 2015 that I referred the applicant to in which it stated that the applicant finds it difficult to perform activities at home such as mowing the lawn, cleaning the yard and general duties.[8] In evidence before this Tribunal, the applicant stated that he had not mowed the lawn for three years. The report from Dr Isaacs certainly does not indicate that the applicant is not able to mow the lawn. Rather it states is that he has difficulty in mowing the lawn. I accept that he may have difficulty in mowing the lawn because of his left leg condition. However, I find it difficult to accept the applicant as a credible witness when what he states is in conflict with what his specialist has said the applicant has reported to him. Another instance, which is discussed later in these reasons, where the applicant has been inconsistent in providing information concerns whether he is able to remain seated for more than 10 minutes.
[8] Exhibit A, T-Documents, T27.
Job Capacity Assessment
On 20 March 2015 the applicant participated in a Job Capacity Assessment.[9] The Job Capacity Assessor (“the JCA”) determined that no impairment rating could be assigned to the applicant’s conditions as they had not been verified as being permanent for the purposes of the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011.
[9] Exhibit A, T-Documents, T28.
Dr Palami Kuppusamy
On 29 October 2015 Dr Palani Kuppusamy completed a medical certificate certification. Dr Kuppusamy noted that the applicant’s symptoms at the time of writing were:[10]
- SEVERE LOW BACK PAIN – ROTATING BOTH LEGS - LEFT WORSE THAN RIGHT.
- SEVERE L[eft] LEG PAIN. STOPS HIM FROM WALKING. PAIN GETS WORSE EVEN WALKING 10-20 MS or even less
- CANNOT SIT FOR MORE THAN 10 Min DUE TO LOW BACK PAIN.
- CANNOT SQUAT AT ALL.
[10] Exhibit A, T-Documents, T34 at p. 179.
In relation to sitting or driving a motor vehicle, Dr Kuppusamy stated:[11]
CANNOT DRIVE MORE THAN HALF HOUR. NEEDS TO STOP PULLOVER. WALK FOR [indecipherable] MINUTES DRIVE BACK AGAIN.
[11] Ibid p. 180.
On 17 December 2015 the applicant lodged an undated medical certificate prepared by Dr Kuppusamy.[12] The medical certificate stated that the applicant:
…has L3/L4 and L5/L5 disc Bulge with L 4 nerve root compression which is causing his low back pain and also shooting pain donw [sic] the lowerlegs [sic]. He also has Facet Joint arthritis and his symptoms of lower back pain and the lower limb pain are arising from the spine related issues and not fro [sic] the lower limbs and rated under the spine functions and not lower limb functions
[12] Exhibit B, Medical Certificate prepared by Dr Palani Kuppusamy (undated).
Mr Matthew Bartlett, Occupational Therapist
The respondent lodged a letter written by Mr Matthew Bartlett, Occupational Therapist on 28 April 2016.[13] Mr Bartlett remarked that the applicant had requested an assessment of his work capacity. He did not complete an occupational therapy assessment because he had determined that he was “not the best service” for assisting the applicant with “his needs”. He advised the applicant about undertaking an assessment from a return to work rehabilitation provider.
[13] Exhibit B, Letter drafted by Matthew Bartlett, Occupational Therapist, dated 19 April 2016.
Dr Abe Isaacs, Orthopaedic Surgeon
On 30 January 2015 Dr Abe Issacs, Orthopaedic Surgeon, wrote a letter concerning his assessment of the applicant which was in the T-Documents.[14] Dr Isaacs considered that the applicant was unable to walk more than 50 yards due to left leg pain. Dr Isaacs considered that the applicant’s pain was aggravated by sitting or standing for a prolonged period.
[14] Exhibit A, T-Documents, T22.
On 12 February 2015 Dr Isaacs wrote a letter which suggested that the applicant undertake “a left L4/5 epidural block”.[15] He further remarked that he would “be able to advise in regards to any definitive management” subject to the response to the suggested treatment.
[15] Exhibit A, T-Documents, T24.
On 19 March 2015 Dr Isaacs wrote a letter which stated that the applicant “is totally and permanently incapacitated for work in the building industry and construction industry”.[16] This letter was written for the purpose of access to the building industry long service leave scheme. He also remarked that the applicant had informed him that:
…he finds it difficult to perform most of his activities at home, such as mowing the lawn, cleaning the yard and general duties.
[16] Exhibit A, T-Documents, T27 at p. 160.
On 4 June 2016 Dr Isaacs wrote a further letter. The reports given by the applicant to Dr Isaacs were more severe in this instance. For example, the applicant had reported that “sometimes even walking 10 meters, the leg pain stops him from walking”[17] yet he had indicated to Dr Isaacs that he could walk 50 yards on about 30 January 2015.[18]
[17] Exhibit A, T-Documents, T30 at p. 175.
[18] Exhibit A, T-Documents, T22.
Dr Sanoj Joseph
Dr Sanoj Joseph completed a medical report for DSP dated 13 February 2015.[19] In his report, Dr Joseph considered that the applicant was diagnosed with “spondylolisthesis and disc budge” on 3 February 2015.[20]
[19] Exhibit A, T-Documents, T26.
[20] Ibid at pp. 152-153.
On 27 August 2015 Dr Joseph wrote a letter which stated that the applicant has chosen to not have “any Epidural block or surgery for his back due to side effects, risks and complications involved”.[21]
[21] Exhibit A, T-Documents, T32 at p. 177.
ISSUES
Pursuant to s 94 of the Social Security Act 1991 (Cth) (“the Act”), the Tribunal is required to determine whether during the relevant period:
(a)The applicant had a physical, intellectual or psychiatric impairment; and
(b)Whether the applicant’s impairments attracted a rating of 20 points or greater under the Impairment Tables; and
(c)Whether the applicant had a continuing inability to work.
What is the relevant period?
Sch 2, Pt 2, cl 4 of the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”) provides that if a person making a claim for a social security payment is not qualified for the payment on the day the claim is made, but becomes qualified within 13 weeks after the date on which the claim is made, the claim will be taken to be made on the first day on which the person is qualified. The eligibility of the applicant is determined at the time the application was made or within 13 weeks after that date.
The applicant lodged a claim for DSP on 13 February 2015.[22] Therefore, the relevant period to determine his eligibility is from 13 February 2015 to 15 May 2015.
[22] Exhibit A, T-Documents, T6.
The applicant has asserted that there has been a deterioration of his conditions. However, the Tribunal cannot assign an impairment rating to a condition to reflect the deterioration of the applicant’s condition after the expiry of the relevant period. Member Breen of this Tribunal explained in Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]:
If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.
Did the applicant have a physical, intellectual or psychiatric impairment?
One of the requirements for the applicant to be eligible to receive DSP is met. Section 94(1)(a) of the Act requires that the applicant had a physical, intellectual or psychiatric impairment within the relevant period to receive DSP. Dr Joseph remarked that the applicant was diagnosed with “spondylolisthesis and disc budge” on 3 February 2015.[23] I am satisfied that the applicant had a physical impairment within the relevant period.
Did the applicant’s impairments attract a rating of 20 points or greater under the Impairment Tables?
[23] Exhibit A, T-Documents, T26 at pp. 152-153.
In order to receive DSP, s 94(1)(b) of the Act requires that the applicant’s impairments attract a rating of 20 points or greater under the Impairment Tables. The Tables to be applied are those contained in the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (Cth) (“the Determination”).
Section 6(1) of the Determination requires that a person’s impairment be assessed on the basis of what she can or could do rather than what the person chooses to do or what others do for the person.
Section 6(3)(a) of the Determination states that an impairment rating can only be assigned if the impairment is permanent. Subsections 6(4)-(7) of the Determination provide that an impairment will only be deemed to be permanent if it is fully diagnosed, treated and stabilised and likely to persist for more than two years.
Section 6(5) of the Determination provides that the following must be considered in determining whether a condition has been fully diagnosed and fully treated:
·Whether there is corroborating evidence of the condition;
·What treatment or rehabilitation has occurred in relation to the condition; and
·Whether treatment is continuing or is planned in the next two years.
Subsections 6(5)-(6) provide that a condition is fully stabilised if:
·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 two years; or
·The person has not undertaken reasonable treatment for the condition and either:
oA significant functional improvement to a level enabling the person to undertake work in the two years would not be expected to result even if the person undertakes reasonable treatment; or
oThere is a medical or other compelling reason for the person not to undertake reasonable treatment.
During the hearing I mentioned that there is a specialist recommendation by Dr Isaacs of his report of 12 February 2015 where he recommends that an L4, L5 diffused disc bulge be subject to an epidural block.[24] The applicant gave evidence that he does not wish to have this surgery by reason of what he considers to be risk. Dr Joseph reports on 27 August 2015 that the applicant has decided not to have any epidural block or surgery to his back because of the side effects, risks and complications involved. There is no evidence of the nature of the risks and if the procedure recommended by the specialist is not a low risk surgery. During the hearing I outlined my concerns in this regard to the applicant as this is relevant for the purposes of determining whether there is a medical or other compelling reason for the applicant not to undertake reasonable treatment in terms of s 6(6)(b)(ii) of the Determination. Dr Joseph does not assert that the procedure does not have a low risk to the person.[25] In the circumstances there is no evidence upon which I can find that the procedure outlined by Dr Isaacs is not reasonable treatment.
[24] Exhibit A, T-Documents, T24.
[25] Section 6(7)(f) of the Determination provides that reasonable treatment is treatment that carries a low risk to the person.
In order to obtain a rating of 10 points under Table 3 or 4, the applicant must have taken all reasonable treatment for his conditions. At the hearing and before the ARO the applicant stated that he used marijuana to relieve his pain. There is an issue about using marijuana as treatment. The use of marijuana was not recommended by a medical practitioner. It is difficult for me to make a ruling that the use of marijuana is reasonable treatment.
Despite my reservations I am prepared to decide that the lower limb function is fully treated, diagnosed and stabilised and so it can be assigned a rating under the Tables. However, I cannot assign an impairment rating to the spinal condition as I am not satisfied that the procedure that has been recommended by Dr Isaacs is not reasonable treatment.
One issue is whether the applicant has a severe impairment. Under s 94(3B) of the Act, a person’s impairment is 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.
At the outset of the hearing I asked the applicant which of the Impairment Tables he relied on to be assigned 20 points or more. Initially he nominated one Table but later that was amended to Tables 3 and 4. So I will consider the case that the applicant puts forward that he could obtain a rating of 20 points under Table 3 and 20 points under Table 4.
Table 3 – Lower limb function
The relevant Impairment Table where an applicant has a permanent condition resulting in functional impairment when performing activities requiring the use of legs or feet is Table 3.
The relevant portions of Table 3 are:
5 There is a mild functional impact on activities using lower limbs.
(1) At least one of the following applies:
(a) the person has some difficulty walking to local facilities (e.g. shops or bus-stop); or
(b) the person has some difficulty walking around a shopping mall or supermarket without a rest; or
(c) the person has some difficulty climbing stairs; and
(2) At least one of the following applies:
(a) the person is unable to stand for more than 10 minutes;
(b) the person can mobilise effectively but needs to use a lower limb prosthesis or a walking stick.10 There is a moderate functional impact on activities using lower limbs.
(1) At least one of the following applies:
(a) the person is unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities; or
(b) the person is unable to use stairs or steps without assistance; or
(c) the person is unable to stand for more than 5 minutes; and
(2) The person is able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket.
(3) This impairment rating level includes a person who can:
(a) move around independently using a wheelchair and can independently transfer to and from a wheelchair (e.g. can use a wheelchair accessible toilet independently); or
(b) move around independently using walking aids (e.g. quad stick, crutches or walking frame).
Note: The person may require additional time and effort to move around a workplace, may need to use disabled access entries, lifts and toilets, and may not be able to access some areas of a workplace or training facility.20 There is a severe functional impact on activities using lower limbs.
(1) The person:
(a) is unable to do any of the following:
(i) walk around a shopping centre or supermarket without assistance;
(ii) walk from the carpark into a shopping centre or supermarket without assistance;
(iii) stand up from a sitting position without assistance; and
(b) requires assistance to use public transport.
(2) This impairment rating level includes a person who requires assistance to:
(a) move around in, or transfer to and from a wheelchair (e.g. the person needs personal care assistance to use a toilet); or
(b) move around using walking aids (e.g. a quad stick, crutches or walking frame) i.e. the person needs assistance from another person to walk on some surfaces and could not move independently around a workplace or training facility, even when using a walking aid.
To assign 20 points to a lower limb impairment, the applicant must have a severe functional impairment which prevents him from undertaking various activities.
The evidence of the applicant was that he can walk from the car park into the shopping centre and around the shopping centre without assistance and he can stand up from a sitting position without assistance. The applicant informed the ARO that when he goes to the shopping centre he walks behind his housemate.[26] The applicant does not satisfy any descriptor in paragraph (1)(a) of the severe impairment rating criteria in Table 3.
[26] Exhibit A, T-Documents, T9 at p. 93.
To obtain a severe impairment rating the applicant must also satisfy paragraph (1)(b) which requires assistance to use public transport (as indicated by the conjunction “and” at the end of the paragraph). In his claim form for DSP he stated that he could use public transport. I do not give weight to his later assertion to the ARO that he could not use public transport because of his condition.
For completeness I should state that paragraph (2)(b) of the severe impairment rating criteria is not satisfied. The applicant does not use a wheelchair and he does not use a walking stick or any aid.[27]
[27] Ibid.
My conclusion is that under the evidence before me the lower limb condition cannot be assigned an impairment rating of 20 points under Table 3.
Table 4 – Spinal function
I cannot assign an impairment rating to the spinal function condition because I am not satisfied that the condition is permanent.[28] However, for completeness, I have considered what impairment rating would be assigned to the condition if it were permanent.
[28] Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (Cth) s 6(3).
The relevant Impairment Table where the applicant has a permanent condition resulting in functional impairment when performing activities involving bending or turning the back, trunk or neck is Table 4.
The relevant portions of Table 4 are:
5 There is a mild functional impact on activities involving spinal function.
(1) The person has some difficulty in:
(a) activities over head height (e.g. activities requiring the person to look upwards); or
(b) bending to knee level and straightening up again without difficulty; or
(c) turning their trunk or moving their head (e.g. to look to the sides or upwards).10 There is a moderate functional impact on activities involving spinal function.
(1) The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following 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).20 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.
In considering Table 4 I have had regard to both the medical evidence as well as the self-report of the applicant. In determining whether paragraph (1)(a) of the severe impairment criteria has been satisfied for the 20 point rating I have considered the medical certificate dated 29 October 2015.[29] Dr Kuppusamy was asked to describe the impact of spinal injury on overhead activities. He stated that the applicant can look up as any pain is in the lumber spine region, not in the neck. So I cannot find that the applicant is unable to perform any overhead activities.
[29] Exhibit A, T-Documents, T33.
Paragraph (1)(b) of the severe impairment criteria refers to turning the neck. The applicant stated in evidence that he was able to turn his neck 50 degrees. I cannot find that paragraph (1)(b) for the 20 point rating can be satisfied.
In relation to paragraph (1)(c) of the severe impairment criteria, there was evidence that the applicant is able to bend forward to pick up an item from a table.[30] In evidence he said that he is able to pick up material at eye level. He also can pick up his Foxtel remote control although he prefers to leave the Foxtel control on the chair to press the buttons.
[30] Exhibit A, T-Documents, T2 at p. 8.
Paragraph (1)(d) of the severe impairment criteria requires me to consider whether the applicant can remain seated for 10 minutes. The applicant informed the SSCSD that he can sit for at least 10 minutes with increasing discomfort after this time. The report of Dr Isaacs dated 4 June 2015 stated that sitting for more than 10 minutes aggravates the pain. However, this report is based on the self-report of the applicant. Dr Kuppusamy indicates that the applicant can remain seated for up to half an hour as he can drive for that period. Having regard to this evidence I cannot make a finding that the applicant was unable to remain seated for 10 minutes during the relevant period.
Based on the evidence before me it is doubtful that the applicant would achieve a 10 point rating under Table 4 because the evidence from Dr Kuppusamy is that the applicant is able to sit or drive a car for at least 30 minutes. On the claim form the applicant indicated that he is able to use public transport. It is legitimate for me to infer that he can sit for at least 30 minutes despite his assertion.
The applicant can lean forward to pick up a light object from a table (which would be at knee height). He can also get out of a chair. The evidence before me is that the applicant does not satisfy the descriptors in paragraphs (1)(a) to (1)(d) of the moderate impairment rating criteria.
Paragraph (1)(a) for the moderate impairment rating requires that a person be unable to sustain overhead activities. As highlighted above, Dr Kuppusamy indicated that the applicant can actually sustain overhead activities. In relation to paragraph (1)(b), the applicant has stated that he is able to move his head at least 50 degrees.
I have concluded that the spine condition of the applicant cannot be assigned an impairment rating under Table 4. Even if the lower limb condition of the applicant is assigned 10 points under Table 3, the applicant does not satisfy the required 20 point rating under s 94(1)(b) of the Act to be eligible for DSP.
Even if the applicant achieved a moderate impairment rating of 10 points for both conditions under Tables 3 and 4, he would still not be eligible for DSP. This is because he would not be regarded as having a continuing inability to work for reasons which are discussed below.
Does the applicant have a continuing inability to work?
Section 94(2) of the Act provides:
(2) 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 94(3B) of the Act defines “severe impairment” as an impairment of 20 points or more under a single Impairment Table. I do not consider that the applicant has such a severe impairment.
Section 94(1)(c) of the Act requires the applicant to have a continuing inability to work before he is eligible for DSP.
The report of Dr Isaacs dated 4 June 2015 contains a recommendation for the applicant to obtain evidence from an occupational therapist to give an assessment of work capacity. No such assessment has been provided to the applicant. The report from Mr Bartlett referred to options that were provided to the applicant. I appreciate that the applicant was concerned with potential costs associated with an occupational therapy assessment but there is no indication that assistance from the public hospital scheme was sought. Dr Isaacs stated that depending on that report then Dr Wan would be able to write to Centrelink to report that the applicant may not be eligible for any type of gainful employment. It is significant that Dr Isaacs uses the word “may”.
There is also a report from the JCA that is in evidence which indicates that the applicant is able to work with assistance from 15 hours or more a week. This has not been challenged by the applicant. The applicant has himself previously indicated that he has considered alternative employment to that of a painter such as a “real estate/investing role”,[31] or “truck driving or office work”.[32]
[31] Exhibit A, T-Documents, T16, p. 131.
[32] Ibid at p. 134.
Has the applicant participated in a program of support?
To be regarded as having a continuing inability to work the applicant must have actively participated in a program of support.[33] Section 94(5) of the Act provides that a program of support is a program that:
(a) is designed to assist persons to prepare for, find or maintain work; and
(b) either:
(i) is funded (wholly or partly) by the Commonwealth; or
(ii) is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.
[33] Social Security Act 1991 (Cth) s 94(2)(aa).
It was not in dispute between the parties that the applicant had not participated in a program of support for the required period of 18 months within the three years prior to making a claim for DSP.
CONCLUSION
I am satisfied that the applicant had a permanent physical impairment during the relevant period and that the lower limb condition should be assigned an impairment rating of 10 under Table 3. I cannot assign the spinal function condition an impairment rating as I am not satisfied that the procedure that has been recommended by Dr Isaacs is not reasonable treatment. The applicant has a continuing ability to work and he has not participated in a program of support. Therefore, he was not eligible for DSP during the eligible period.
DECISION
I affirm the decision under review.
I certify that the preceding 61 (sixty-one) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD ...........................[sgd].............................................
Associate
Dated 21 June 2016
Date(s) of hearing 27 May 2016 Applicant By telephone Solicitors for the Respondent Mr Robert Hamilton, Department of Human Services
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Appeal
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Standing
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