Harris and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2008] AATA 988

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 988

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/1626

GENERAL ADMINISTRATIVE DIVISION		)
Re		DANNY HARRIS

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Dr K S Levy RFD, Senior Member

Date6 November 2008

PlaceBrisbane

Decision

The Tribunal determines:

(a)  Mr Harris’ lumbar spine impairment and his ankle injury are both permanent conditions;

(b)  Mr Harris has an impairment rating of 10 points in relation to his lumbar spine condition;

(c)  Mr Harris has an impairment rating of 20 points in relation to his ankle injury;

(d) With respect to the ankle injury, Mr Harris has “a continuing inability to work” in light of the “work” requirements of s 94(5); and

(e)  The matter is remitted to Centrelink for assessment on the basis that Mr Harris qualified for DSP in respect to the ankle injury with effect from the start date of 25 July 2007.

.................[Sgd]......................

Senior Member

CATCHWORDS

SOCIAL SECURITY – Pensions, Benefits & Allowances – disability support pension – qualification – lumbar spine, heel and ankle conditions – assessment of work-related impairment – applicant satisfies 20 points – definition of work – continuing inability to work – commencement of payment – start day – applicant qualifies for disability support pension.

Social Security Act 1991 ss 94(1), 94(5), Schedule 1B

Social Security (Administration) Act 1991 ss 41, 42, Schedule 2,    

Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444; (1999) 164 ALR 572

Re Crossland and Secretary, Department of Family and Community Services [2004] AATA 864

REASONS FOR DECISION

6 November 2008 Dr K S Levy RFD, Senior Member           

INTRODUCTION

2.      Mr Danny Harris applied for a disability support pension on 25 July 2007.  Centrelink rejected that application on 28 August 2007.  He then sought a review by an Authorised Review Officer (ARO) but the decision was affirmed on 23 October 2007.  He sought further review from the Social Security Appeals Tribunal (SSAT) but on 28 February 2008 the original decision was again affirmed.  He now seeks review from this Tribunal.

ISSUES

3. The Tribunal must determine whether at the date of the claim (25 July 2007) or within a period of 13 weeks thereafter (that is up to 24 October 2007), the Applicant can satisfy whether he had an impairment rating of 20 points or more under the Impairment Tables in Schedule 1 of the Social Security Act 1991 (“the Act”); and having a “continuing inability to work” as provided for in s 94(1) and 94(5), of the Act.

EVIDENCE

4.      The Applicant gave evidence before the Tribunal that he had provided all of the material that was available, including medical evidence, which he asserts, establishes that his condition was permanent.  He emphasised that he could not understand what information was not provided to show that the condition was permanent at least within the 13 week period following the date of application. 

5.      He referred to the report of the Job Capacity Assessor dated 30 July 2007 which indicated that Mr Harris’ conditions were not “fully treated and stabilised”[1].  It also showed that he had a future capacity for work of between 15 to 22 hours per week[2].  He objected to the content of the report as not being sufficiently comprehensive to document his circumstances.  He also indicated that he was interviewed on the phone at one stage subsequent to his application and advised that it was not a good reflection of his condition.  He told the Tribunal in particular, that there was no indication of the significant aspect of his requirement to use a walking stick. 

[1] Exhibit 1: T 16; folio 95.

[2] Exhibit 1: T 16; folio 97.

6.      In cross examination, the Applicant told Mr Guthrie that he used a walking stick for 90 per cent of every day.  In relation to the reference to surgery in              Dr Winstanley’s report, he said that he would never agree to have surgery on his ankle as he had had the injury which relates to the disability to his ankle, since he was 17 years of age and has used a walking stick for many years as a result.  He stated that surgery had been suggested to him even when he was younger but had refused to take that option because of the risks involved and that if the surgery was not successful, his disability would be even greater than what he presently has. 

7.      The Applicant stated that he has worked hard throughout his life.  He demonstrated his determination to not allow his disability to limit his achievements and indicated that he had completed three trades and had done hard manual work and had other achievements despite some limitation to his mobility.  Because of the hard physical work he had done throughout his life, he said that his condition has deteriorated although he exercises daily to try to maintain movement in his joints.

8.      His limitations are that he now can sit for no longer than an hour before he needs to stand and likewise, he can stand, with the aid of a walking stick usually for about an hour at a time.  He gets some tingling sensations after that time.  To assist his condition, he now takes long relief panadol although he had resisted medication for a long period of time. 

CONSIDERATION

9.      I have considered the relevant law and the relevant facts in issue in arriving at a determination of the issues.  The issues to be determined are governed by the following legislative provisions:

“SOCIAL SECURITY ACT 1991

s 94 Qualification for disability support pension

(1)  A person is qualified for disability support pension 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;

(ii) the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system;”

…

(2)  A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

(a)  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)  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.

Note:          For work see subsection (5).”

…

(5) In this section:

"work" means work:

(a)  that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and

(b)  that exists in Australia, even if not within the person's locally accessible labour market. “

“SOCIAL SECURITY (ADMINISTRATION) ACT 1999 

s 41 Commencement

(1)  Unless another provision of the social security law provides otherwise, a social security payment becomes payable to a person on the person's start day in relation to the social security payment.

(2)  Unless another provision of the social security law provides otherwise, a concession card takes effect on the person's start day in relation to the card.

…

s 42 Start day

For the purposes of the social security law, a person's start day in relation to a social security payment or a concession card is the day worked out in accordance with Schedule 2.

…

Schedule 2 Rules for working out start day

Part 2 -- General rules

3 Start day – general rule

(3)  If:

(a)  a person makes a claim for a seniors health card or a health care card under Subdivision B of Division 3 of Part 2A.1 of the 1991 Act; and

(b)  the person is qualified for the card on the day on which the claim is made; the person's start day in relation to the card is the day on which the claim is made.

4   Start day--early claim

(1)  If:

(a)  a person (other than a detained person) makes a claim for a relevant social security payment; and

(b)  the person is not, on the day on which the claim is made, qualified for the payment; and

c)  assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and

(d)  the person becomes so qualified within that period; the claim is taken to be made on the first day on which the person is qualified for the social security payment.

10. Also relevant to an assessment of the legal propositions associated with the issues here, is the subordinate legislation which explains the assessment of work related impairments to determine eligibility for disability support pension. Specifically, this is contained in Schedule 1B to the Social Security Act 1991.  Paragraphs 4, 5 and 6 are relevant to determining whether the Applicant satisfies the legislative provisions and are as follows:

“SOCIAL SECURITY ACT 1991

SCHEDULE 1B Tables for the assessment of work-related impairment for disability support pension

4.  A rating is only to be assigned after a comprehensive history and examination.  For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised.  The first step is thus to establish a working diagnosis based on the best available evidence.  Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating.  In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.

5.  The condition must be considered to be permanent.  Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future.  This will be taken as lasting for more than two years.  A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.

6.  In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:

·what treatment or rehabilitation has occurred;

·whether treatment is still continuing or is planned in the near future;

·whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years.

In this context, reasonable treatment is taken to be:

·treatment that is feasible and accessible ie, available locally at a reasonable cost;

·where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient.

It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment, unless that treatment has associated risks or side effects which are unacceptable to the person.  In those cases where significant functional improvement is not expected or where there is a medical or other compelling reason for a person not undertaking further treatment, it may be reasonable to consider the condition stabilised.

In exceptional circumstances, where a condition was considered not stabilised and a permanent impairment rating not assigned because reasonable treatment for a specific condition has not been undertaken, the assessor should:

·evaluate and document the probable outcome of treatment and the main risks and or side effects of the treatment; and

·indicate why this treatment is reasonable; and

·note the reasons why the person has chosen not to have treatment. “

11.     I make the following findings of fact:

(a)  Mr Harris was regarded as a truthful witness;

(b)  Mr Harris has a degenerative lumbar spine condition with sciatica in the left side;

(c)  Mr Harris has degenerative osteoarthritis in the right foot, as a result of injury when he was 17 years of age. He is now 57 years of age;

(d)  Radiological evidence shows disc protrusion in his back[3];

(e)  Specialists medical evidence from Dr Winstanley dated 4 July 2007 recommended rehabilitation for Mr Harris’ back and a possibility of surgery for his ankle to improve symptomatology (pain).  There was no expectation of improvement in his functionality[4].

[3] Exhibit 1: T8a; Folio 37.

[4] Exhibit 1: T12; Folio 68-69.

issue 1 – is there an impairment of 20 points or more?

lumbar spine condition

12.     In considering this fact in issue, I noted the report of his general practitioner, Dr Campbell where on 15 June 2007 he reported that the Applicant required analgesia; that he had been referred to an orthopaedic specialist Dr Winstanley; he was also referred for back rehabilitation at Nambour Hospital; and that he had pain when walking and standing.  I note also that Dr Campbell had been his general practitioner for approximately one week at that time.  The evidence of Dr Winstanley in his report dated 4 July 2007 states:

“The treatment options which are open to us for his lumbar spine I feel is not surgery.  He would benefit from a muscle rehabilitation and strengthening program.  Reduction in his heavier-type cleaning activity would prove beneficial to him.  He would be best suited for light activity.”

13.     The Respondent’s position is that this indicates that the Applicant’s condition is not “fully treated and stabilised” and therefore no rating under the impairment tables can be assigned. 

right heel/ankle condition

14.     Dr Campbell’s report of 15 June 2007 in relation to this condition refers to this as being a past injury and referred again to Mr Harris taking analgesia, that he had pain while walking and standing and that he had been referred to Dr Winstanley for this condition also.  At the time of completing that report, Dr Campbell’s assessment was that he expected this condition to persist “for more than 24 months”[5].  He also noted that the effect of this condition for the future was “uncertain”.

[5] Exhibit 1: T11, folios 61- 66.

15.     Dr Winstanley’s report of 4 July 2007 commented on the heel condition as follows:

“With his right foot, he has advancing osteoarthritic change present within his subtalar joint.  This could be surgically corrected with a fusion of his subtalar joint.  This would give him significant improvement in his foot symptomatology, but he would have lost his pain.  I have discussed with him the long term prognosis for his situation and advised him that if he continues in his heavier-type work activity surgical correction of his right subtalar joint would improve his back symptomatology.”

assessment of both conditions

16.     The Respondent has taken the view that these specialist reports indicate that both of these conditions are not fully treated and stabilised and therefore no rating can be implied under the impairment tables.  The oral evidence given by Dr Winstanley at the hearing clarifies the emphasis that should be put on his report. The phraseology “….improve his symptomatology” refers to improving (lowering) the level of his pain but there was no suggestion that his functionality could be expected to be improved by this treatment.  It seems to me that officers of Centrelink have not interpreted that report with that emphasis.  Indeed, subsequent to that report, notes in the T-documents show a telephone conversation of 20 September 2007 between an officer of the department and a number of relevant people, including the Applicant.  That is the telephone conversation to which the Applicant objects and the report of which makes no mention of his need to use a walking stick. The Applicant therefore argues that it conveys an inaccurate perception for someone making an assessment on the record of his eligibility for disability support pension. 

assessment of permanency -  lumbar spine conditions

17.     The Respondent’s advocate submitted that the Applicant’s back injury could only be allocated a 10 point rating in Table 4 (Functions of the Lower Limbs).  He submitted similarly in relation to Table 20 (Chronic Fatigue or Pain).  In relation to Table 5.2, Mr Guthrie says that to achieve 20 points the Applicant would need three quarters loss of movement whereas Dr Winstanley had provided evidence that there was only a 50 per cent loss of movement. 

18.     As stated earlier, Dr Winstanley provided evidence that his pain symptomatology could improve with treatment but his functionality could not be expected to improve.  In addition there is the radiological evidence which shows a disc protrusion.  Dr Winstanley also concludes that surgical intervention is not an option for Mr Harris’ back condition.

19.     I therefore determine that the only reasonable conclusion is that the lumbar spine condition is not likely to improve, at least from the point of view of functionality or normal range of movement.  It is therefore permanent.

assessment of permanency -  ankle condition

20.     While there is potential for at least the ankle injury to have a surgical correction, the Applicant has refused to accept that option.  He has stated that he has had this injury since he was 17 years of age and had previously rejected suggestions of surgery because of the risk.  Dr Winstanley, in his evidence, stated that there were risks although the risks were rather low.  However, if the surgery was unsuccessful, then the Applicant would probably be left with a condition where he had a frozen ankle joint which may be perceived as being worse than his present situation.  I accept that the Applicant has lived with this condition for a very long time and I find that it is now a permanent condition. I also accept that his decision to reject surgery is not unreasonable given his age and he has clearly been cautious of any such option for almost 40 years. I regard his circumspection about the risk of surgery as being a compelling reason as, even if surgery was successful and his pain improved, he could not anticipate any improvement in functionality. In particular, there is a risk, if the surgery was unsuccessful, that his functionality would be detrimentally affected.

21.     In relation to the ankle injury I therefore accept that the ankle condition should be regarded as being permanent.  The Respondent’s advocate conceded that point at the hearing, that is, in relation to the ankle injury, although he did not concede the permanency of the back condition.  In relation to the ankle condition, Mr Guthrie acknowledged that it may satisfy a 20 point rating.

Impairment rating scale

22.     While I have found both those conditions should be regarded as permanent, the Applicant must still demonstrate that his impairments would attract a rating of 20 points.  The Respondent says that the descriptions based on evidence given by Mr Harris at the hearing would at best warrant a 10 point rating.  This is based on evidence that the Applicant could walk 500 metres (Table 4, 10 points).  While Mr Harris did agree he could walk 500 metres, it was only after some vacillation that he agreed with that point but said it would depend on the day of the week and how much pain he was in, how long it would take him to walk 500 metres and whether he could walk the distance with or without rest.  He clearly was equivocal about whether he could walk 500 metres in the ordinary course of events and without difficulty.  The next criterion in the table refers to walking at 4 km per hour for 50-250km (Table 4, 20 points).  That criterion also refers to demonstrable loss of function such as mobility, stability, balance, coordination and/or sensation which causes a major interference with walking and one of the following: climbing, squatting, sitting or breathing.  A similar description about loss causing a moderate interference would justify a 10 point rating, whereas a major interference justifies a 20  point rating.

23.     In final submissions, Mr Harris said that as he uses a walking stick and has done so for a very long time, he more appropriately fits the 30 point rating.  Mr Harris was unrepresented and did not put this to Dr Winstanley to seek his specialist medical opinion about this point.  Neither did the Respondent’s advocate. 

24.     In relation to the lumbar spine condition, I believe Table 5.2 – Thoraco – Lumbar - Sacral Spine, permits a more detailed assessment of the back condition.  To achieve 20 points, Mr Harris would need to show either:

(a)  Loss of half the normal range of movement, plus back pain or referred pain with most physical activities, with standing for about 15 minutes and with sitting or driving for almost 30 minutes; OR

(b)  Loss of three quarters of the normal range of movement.

25.     Dr Winstanley referred to a loss of half the normal range of movement only.  In any event, Mr Harris gave evidence of having sensations after an hour of sitting or standing.  The evidence of either of these factors indicates he cannot satisfy 20 points on this scale.  The evidence does however justify a 10 point rating in relation to his lumbar spine condition.  I determine accordingly.

26.     In relation to the ankle disability, the evidence examined objectively and as a whole can best be assessed utilising Table 4 – Functions of the Lower Limbs.  In view of the fact that Mr Harris has had to use a walking stick for a number of years and in light of the evidence of Dr Winstanley that any treatment suggested may improve his pain but not functionality, I think it is reasonable that for a man of 57 years of age and with the longstanding disabilities which the Applicant has, he can fairly be regarded as fitting within the 20 point rating of Table 4 for right heel/ankle.  While he fits at least one of the criteria of the 30 point rating (and a rating of 30 points might be arguable), Dr Winstanley was not asked by either of the parties to provide a more definitive medical view on this point.

27.     There was evidence that he had sensations when sitting or standing for more than an hour.  Whether he can walk or stand for 500 metres with a walking stick is not accurately depicted by the criterion description for a 10 point rating.  The evidence as a whole in my view, having regard to medical opinions about the applicant’s functionality, indicates a rating higher than 10 points is appropriate. The limitation for 30 points for distance of up to 50 metres or requiring a walking stick in and around the home overstates Mr Harris’ condition. I think that 20 points is the fairest and most accurate categorisation. I make a finding of 20 points on the basis that his condition causes a major (not a moderate) interference with walking and also, affects at least sitting given that he cannot sit for more than one hour.  I therefore find he satisfies 20 points on the scale in Table 4in relation to the ankle condition.

issue 2 – is there a “continuing inability to work”?

28.     Even though a 20 point rating has been established above for the ankle injury, the Applicant must nevertheless show that he has additionally, a “continuing inability to work” (s 94(1)(c)).  That term is defined in s 94(2).  The Secretary says that the Applicant has no impairment which is “permanent” and therefore that the Applicant does not have an inability to work. I have found as a matter of fact, that his conditions are permanent.

29.     The evidence of Dr Winstanley is that the Applicant is best suited for light activity (report of 4 July 2007).  He gave oral evidence about the Applicant’s back condition that muscle rehabilitation would provide “some improvement” but the range of motion would be unchanged.  He emphasised that the treatment recommended would result in improvement in the pain level only. 

30.     In relation to foot surgery, Dr Winstanley provided oral evidence that the impact on symptomatology would be a reduction in pain only. 

31.     In making an assessment of this matter, the legislation must be strictly applied[6].  This requires the Tribunal to take no account of various factors including impairments which cannot be assigned a rating under the impairments tables; a person’s motivation for work; or other discretionary factors such as whether work is available in the local labour market where an Applicant may reside.

[6]Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444 at 452; Re Crossland and Secretary, Department of Family and Community Services [2004] AATA 864.

32. The evidence of Dr Winstanley shows that excluding those extraneous factors, the Applicant could theoretically work 15 hours per week, which is the definition of “work” in s 94(5) of the Act. He was asked whether the Applicant might be able to work in real estate, in retail or as perhaps as a service station console operator. Dr Winstanley indicated that the Applicant might be able to work in such industries or roles provided the work situation could accommodate the limitations of the Applicant.

33.     I was satisfied that the Applicant’s lack of work for the past 18 months was not because of a lack of motivation.  He had demonstrated in the course of the past 18 months that he tried to gain Commonwealth Rehabilitation Service (CRS) to fund a course in real estate for him.  That was not achievable.  He indicated that being idle and having lack of work is not something with which he is comfortable.  But in practical terms he argued that he had no rehabilitation, that he cannot afford the courses which have been suggested and that he is most unlikely at his age and level of skill, to gain employment. 

34.     In assessing this application, I take account of the fact that Dr Winstanley has conceded that the Applicant can work 15 hours but it would have to be in a sedentary occupation.  He has previously been in heavy manual jobs.  Dr Winstanley emphasised any employment would have to be suitable for the restrictions which Mr Harris now has.  I take account of that evidence. 

35.     Mr Harris suggested that it appears that he will just have to try and find something that he can do and he suggested that perhaps making crafts with woodwork and trying to sell them.  This, without any further evidence might not necessarily be expected to fit the definition of “work” in that where he may get work for the equivalent of “15 hours per week”, it may not be “... on wages that are at or above the relevant minimum wage”.  That is however, a matter in the realm of speculation. But given the Applicant’s age and station in life, as well as the fact that he resides in Noosa, such a question is probably less speculative than it appears to be at first.  I make no finding in that respect nor do I take account of it in reaching a conclusion as to whether there is a “continuing inability to work”.

36.     Certainly, the examples proffered by the Respondent would be difficult for the Applicant to achieve.  As mentioned, he had an interest in real estate but his attempts to undertake a course had been unsuccessful as he doesn’t have the funding himself to pay for such a course and he was unsuccessful in gaining financial assistance.  Retail positions also would have the requirement of standing for more than an hour at a time which the evidence shows would become very difficult for Mr Harris.  A similar result would be likely to occur as a console operator in a service station.  Mr Harris himself pointed out that (apart from a lack of technological competence by him which might be required – but which could undoubtedly be overcome by training), he would need to stand and use a walking stick with his right hand and he would also need his right hand to work a computer terminal, to write and perform other practical tasks in a service station.

37.     I accept the evidence that Mr Harris would, theoretically, be capable of performing 15 hours of work per week.  Having considered the evidence and the realistic options, and that his trade skills will not be of assistance to him in his present condition and for the future, his physical incapacity and limitations about standing and sitting for more than 1 hour at a time together with his need to use a walking stick, means his capacity for effective employment in positions requiring bending, lifting or administrative work of a prolonged nature are unfortunately, going to be impractical.  Even the retail types of positions suggested by the respondent are going to be extremely difficult to achieve and prospective employers are likely to be similarly sceptical about the realistic capability of the applicant.  There are also his interpersonal factors to which I refer below.

38.     I mention, merely as a contextual matter and which confirms my assessment of the evidence, that it was clear from the early part of the hearing that Mr Harris became emotionally distraught very quickly.  It is clear that he has felt highly stressed and frustrated in trying to deal with this matter.  But there is evidence of his interpersonal style, both from his engagement at the hearing and also in the documentary evidence, that he has not always been an easy client for the Department or CRS to deal with.  That cannot affect the assessment of the legal merits of the evidence and on review of all of the evidence his reactions might be understandable. It however tends to confirm the conclusion in the previous paragraph as to the ability of the applicant to be able to obtain work or to be able to effectively perform work for 15 hours per week.

CONCLUSION

39.     Some of the evidence upon which this decision is based may not have been as apparent to the original decision maker.  The oral medical evidence received at the hearing certainly amplified the written evidence upon which the original decision relied. That evidence has demonstrated the permanent nature of Mr Harris’ impairments.

40.     He has not satisfied the requirements of S.94 (1) in respect of his lumbar spine condition. He has however satisfied the requirements with respect to the ankle injury. He did so at the date of the application as Dr Winstanley’s report, upon which further interpretation was provided at the hearing, was available at that time and pre-dated the application. In any event, he provided the detailed evidence upon which I have relied to find in Mr Harris’ favour in relation to the ankle injury, by 20 September 2007, which is within 13 weeks of the application.

DECISION

41.     I find, after considering the whole of the evidence, that:

(a)  Mr Harris’ lumbar spine impairment and his ankle injury are both permanent conditions;

(b)  Mr Harris has an impairment rating of 10 points in relation to his lumbar spine condition;

(c)  Mr Harris has an impairment rating of 20 points in relation to his ankle injury;

(d) With respect to the ankle injury, Mr Harris has “a continuing inability to work” in light of the “work” requirements of s 94(5); and

(e)  The matter is remitted to Centrelink for assessment on the basis that Mr Harris qualified for DSP in respect to the ankle injury with effect from the start date of 25 July 2007.

I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Dr K S Levy RFD, Senior Member

Signed:         ..............................[Sgd]................................................
  Elizabeth Young, Research Associate

Date/s of Hearing  25 September 2008
Date of Decision  6 November 2008
For the Applicant  The Applicant was self represented
For the Respondent                  Mr J Guthrie, departmental advocate