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

[2016] AATA 688

Heazlewood and Secretary, Department of Social Services (Social services second review) [2016] AATA 688 (7 September 2016)

Division	GENERAL DIVISION
File Number	2016/1160
Re	Kevin Heazlewood
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member A C Cotter
Date	7 September 2016
Place	Brisbane

The decision under review is affirmed.

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

Senior Member A C Cotter

Catchwords

SOCIAL SECURITY – disability support pension – whether condition fully treated – whether 20 points or more under the impairment tables – applicant did not qualify for DSP at the date of claim – decision under review affirmed.

Legislation

Social Security Act 1991 (Cth), s 26(1), s 94

Social Security (Administration) Act 1999 (Cth), ss 41, 42; cl 3 and cl 4(1), Schedule 2, Part 2

Cases

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Fanning and Secretary, Department of Social Services (2014) 144 ALD 133

Gallacher v Secretary, Department of Social Services [2015] FCA 1123

Secondary Materials

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth),

REASONS FOR DECISION

Senior Member A C Cotter

7 September 2016

INTRODUCTION

1. Mr Kevin Heazlewood lodged a claim for Disability Support Pension (“DSP”) in August 2015. That claim was rejected by Centrelink on the grounds that the medical conditions from which he was suffering were not considered fully treated and stabilised. They therefore did not attract any impairment points under the Impairment Tables, let alone the 20 points or more required by Mr Heazlewood in order to be eligible for DSP.

2. A review by an Authorised Review Officer (“ARO”) affirmed the original decision. A first tier review of the ARO’s decision by the Social Services and Child Support Division (“SSCSD”) of this Tribunal was similarly unsuccessful. Mr Heazlewood has therefore sought a review of that decision by the General Division of the Tribunal.

3. I have concluded that Mr Heazlewood is not eligible for DSP on the basis that his impairments did not attract 20 points or more at the relevant time. Consequently, the SSCSD’s decision is affirmed. My reasons follow.

   BACKGROUND

4. Mr Heazlewood’s claim was lodged on 27 August 2015. In it, he listed the disabilities, illnesses or injuries from which he was suffering as “neck and lower back degenerative disease”.[1]

   [1] Exhibit 1, T Documents, T 4, page 49, Disability Support Pension claim form dated 21 August 2015.

5. The background to Mr Heazlewood’s claim and the initial consideration of it by Centrelink is conveniently set out in the SSCSD’s decision and reasons for decision.[2] I summarise the key points below.

   [2] See Exhibit 1, T Documents, T 2, pages 5-6, Social Services and Child Support Division (“SSCSD”) decision and reasons for decision dated 1 February 2016, [11]-[14].

6. Mr Heazlewood was working as a concreter when he had a fall in March 2014. He developed increasing pain in his neck and lower back. On 16 November 2014, he ceased work. He has not returned to work since.

7. Doctors have diagnosed degenerative cervical and lumbar spondylosis and right trochanteric bursitis. Mr Heazlewood was also being treated separately for Emphysema.

8. By June and July 2015, doctors appointed respectively by WorkCover Queensland (“WorkCover”) and ACE Insurance, Dr Christopher Cunneen and Associate Professor Gordon Stuart, were advising their clients that the work related exacerbation of a pre-existing condition had resolved and been overtaken by the underlying degenerative condition. Mr Heazlewood’s WorkCover payments ceased and he then applied for DSP.

9. In his report of 10 July 2015 to ACE Insurance, Associate Professor Stuart, a consultant neurologist, remarked:

   Further investigations would include assessment at a multidisciplinary pain clinic for assessment and control of depression, introduction of cognitive techniques for pain management rather than continued use of narcotic analgesics and hopefully attempts at rehabilitation and resumption of a physically active lifestyle with an active exercise and walking program.

10. In view of that comment, Centrelink determined that Mr Heazlewood’s condition was not fully treated and stabilised.

11. Mr Heazlewood’s general practitioner, Dr Victor Shawpan, had in fact referred him to a pain management specialist, Dr Tim Grice, in October 2014. Dr Cunneen noted that Dr Grice had performed a number of superior cluneal nerve injections but they did not provide any pain relief.

12. At the SSCSD hearing, Mr Heazlewood confirmed that Dr Grice had administered a series of about eight injections which did not help. Since those injections, Dr Grice had just been adjusting Mr Heazlewood’s pain killing medication. His dosage of the medication Lyrica had increased from 75mg twice daily to 300mg twice daily. He ceased taking Mobic and replaced Tramadol with Palexia. He continued taking Panadol Osteo daily. Mr Heazlewood also commenced seeing a psychologist; by the time of the SSCSD hearing in February 2016, he had attended eight sessions which were designed to help him with techniques to manage the pain.

13. Before discussing the issues raised by this application, it is timely to highlight the key legislative provisions.

    THE LEGISLATIVE FRAMEWORK

14. Section 94 of the Social Security Act 1991 (Cth) (“Act”) prescribes the criteria necessary to qualify for DSP. For present purposes, the three primary requirements are: that the applicant has a physical, intellectual or psychiatric impairment; that the applicant’s impairment is of 20 points or more under the Impairment Tables; and that the applicant has a continuing inability to work.

15. The Social Security (Administration) Act 1999 (Cth) makes it clear that qualification for DSP and assessment of the relevant impairment ratings are to be determined as at the date of claim (in this case, 27 August 2015). There is, however, an exception where the person is not qualified on that date but “becomes qualified” within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[3] Therefore, the relevant period for considering whether Mr Heazlewood qualified for DSP is between 27 August 2015 and 26 November 2015. 

    [3] See Social Security (Administration) Act 1999 (Cth) ss 41, 42; cl 3 and cl 4(1), Schedule 2, Part 2.

16. Previous decisions of both the Tribunal and the Federal Court have emphasised that the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP and the 13 weeks which followed it. Evidence, such as medical reports that come into being after the relevant period, may still be relevant, but only insofar as they are referable to an applicant’s condition during the relevant period.[4]

    [4] See Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922, [34]; Fanning and Secretary, Department of Social Services (2014) 144 ALD 133, 139, [32] (Deputy President Handley); Gallacher  v Secretary, Department of Social Services [2015] FCA 1123, [25]-[28] (Besanko J).

17. The Impairment Tables are contained in the Social Security (Tables for the Assessment ofWork-related Impairment for Disability Support Pension) Determination 2011 (Cth) (“Determination”), a legislative instrument made under the Act.[5] The Tables are function based, rather than diagnostic based, and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impact of impairment, and not to assess conditions.[6] The impairment of a person is to be assessed on the basis of what they can, or could do, and not on what they choose to do or what others do for them.[7]

    [5] See Social Security Act 1991 (Cth) s 26(1).

    [6] See Social Security (Tables for the Assessment ofWork-related Impairment for Disability Support Pension) Determination 2011 (Cth), s 5(2).

    [7] See Ibid, s 6(1).

18. Under the Rules for applying the Impairment Tables, an impairment rating can only be assigned if the person’s condition causing the impairment is “permanent” and the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than two years.[8] In order for a condition to be considered “permanent”, it must have been fully diagnosed by an appropriately qualified medical practitioner; been fully treated; been fully stabilised; and be more likely than not, in light of available evidence, to persist for more than two years.[9]

    [8] See Ibid, s 6(3).

    [9] See Ibid, s 6(4).

19. In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, the following factors are to be considered: whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or is planned in the next two years.[10]

    [10] See Ibid, s 6(5).

20. 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.[11]

    [11] See Ibid, s 6(6).

21. “Reasonable treatment” is treatment that: is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[12]

    [12] See Ibid, s 6(7).

22. An impairment rating can only be assigned in accordance with the rating points in each table. A rating cannot be assigned between two consecutive impairment ratings. If an impairment is considered as falling between two ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[13]

    [13] See Ibid, s 11(1).

23. As regards the requirement that the applicant have a continuing inability to work, all the criteria in s 94(2) of the Act need to be satisfied. Essentially, they are that the applicant must:

    (a)have actively participated in a program of support (if he or she does not have a “severe impairment” as defined in s 94(3B)); and

    (b)be unable to work for at least 15 hours per week independently of a program of support; and

    (c)be unable to participate in a training activity, or if the impairment does not prevent the applicant from undertaking a training activity, such activity is unlikely (because of the impairment) to enable him or her to do any work independently of a program of support within the next two years.

24. A person’s impairment is a “severe impairment” if their impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are assigned under a single table.[14]

    [14] See Social Security Act 1991 (Cth) s 94(3B).

    ISSUES FOR THE TRIBUNAL

25. Based on the evidence that has been provided, there is no dispute that, at the relevant time, Mr Heazlewood had impairments for the purposes of s 94(1)(a) of the Act.[15] Consequently, the first of the requirements is satisfied.

    [15] See Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 15 June 2016, [21].

26. The remaining issues for me to consider are therefore:

    (a)whether, at the relevant time, Mr Heazlewood’s impairments attracted 20 impairment points or more under the relevant Impairment Tables; and

    (b)if so, whether Mr Heazlewood had a continuing inability to work within two years of the relevant period.

    CONSIDERATION

    Did Mr Heazlewood’s impairments attract 20 or more impairment points?

27. I address this question by reference to the various conditions described in the medical reports.

    Degenerative cervical and lumbar spondylosis

28. The Secretary concedes that this condition is fully diagnosed, treated and stabilised.[16]  Having regard to the various medical reports before the Tribunal, I think that concession is appropriate. I note in particular that Mr Heazlewood received treatment from the pain management specialist, Dr Grice, for at least seven months prior to the date of claim, without any significant improvement.[17] If anything, Mr Heazlewood’s condition continued to deteriorate, considering the increase in dosages of medication prescribed by Dr Grice.

    [16] Ibid, [29].

    [17] See Exhibit 1, T Documents, T 14, page 85, medical report of Dr Christopher Cunneen to WorkCover Queensland dated 3 June 2015.

29. On the question of the appropriate impairment points to be assigned, the Secretary contends that Mr Heazlewood’s impairment is moderate and should be assigned 10 points under Table 4 (Spinal Function). In response to a “Dear Doctor” letter, Mr Heazlewood’s general practitioner, Dr Shawpan, also suggested that 10 points be assigned under Table 4, but that 10 additional points should also be assigned under Table 1 (Functions requiring Physical Exertion and Stamina) and five points under Table 2 (Upper Limb Function).[18] I deal later with the application of those other tables.

    [18] Exhibit 2, Annexure A to the Secretary’s Statement of Facts, Issues and Contentions dated 15 June 2016, response of Dr Victor Shawpan to “Dear Doctor” letter dated 8 March 2016.

30. As to his activities of daily living, Mr Heazlewood told Dr Cunneen that he cared for himself, self-toileting; dressing himself (although with some difficulty with socks and shoes); doing his housework; and being capable of preparing some meals. He said that he was able to drive a motor vehicle for 30 minutes. He did not perform any mowing or gardening. His hobbies were focused on walking his dog for 30 minutes daily and visiting the local pub; his previous pastimes included riding a motorcycle, playing golf and fishing.[19]

    [19] Exhibit 1, T Documents, T 14, page 86, medical report of Dr Christopher Cunneen to WorkCover Queensland dated 3 June 2015.

31. The neurosurgeon, Associate Professor Stuart, observed that Mr Heazlewood’s posture and gait were normal, and that he had no difficulty removing his shoes and socks and climbing onto and from the examination couch. He noted that Mr Heazlewood had a full range of active voluntary neck movements and a good range of spinal flexion (although he complained of some low back pain). He could drive and perform housework, but with difficulties. Associate Professor Stuart noted that Mr Heazlewood was able to walk on his heels, walk on his toes and was able to squat.[20]

    [20] Exhibit 1, T Documents, T 15, pages 94-96, medical report of Associate Professor Gordon Stuart dated 10 July 2015.

32. In his medical certificate of 10 August 2015, Dr Shawpan described neck, back and hip pain from the injury sustained in the fall as the condition having the most functional impact. Mr Heazlewood’s symptoms were recorded as pain, restriction of movement, weakness and mental deterioration.[21] A medical report prepared the following month noted Mr Heazlewood’s ongoing cervical neck pain with paraesthesia in both hands; lower back pain with sciatica like pain and paraesthesia radiating from the buttocks and hamstrings; and a “clickly [sic.] R hip with trochanteric pain ? bursitis.”[22]

    [21] Exhibit 1, T Documents, T 16, page 99, Medical Certificate of Dr Victor Shawpan dated 10 August 2015.

    [22] Exhibit 1, T Documents, T 18, page 104, medical report of Dr Victor Shawpan dated 18 September 2015.

33. At the SSCSD hearing in February 2016, Mr Heazlewood said that he could not reverse a car because he could not look over his shoulder. He could not turn sideways without stepping around. He said bending to reach below his knee level causes him great pain; if he bends down, he has trouble getting back up. Mr Heazlewood stated that he can sit for 15-30 minutes but then has to get up to walk around. He can drive for about 20 minutes and then needs a break. He said that he walks half a block to catch the bus to do his shopping, but his right leg drags and he gets a lot of pain from walking. He told the SSCSD that he lives alone and manages his own meals. He hangs washing on a low line and friends help with heavy housework.[23]

    [23] Exhibit 1, T Documents, T 2, page 6, SSCSD decision and reasons for decision dated 1 February 2016, [17].

34. At the hearing before me, Mr Heazlwood said that the answer in his claim form, that his disabilities did not make it difficult for him to care for himself,[24] was incorrect. He told me that he had trouble washing, going to the toilet in the morning, and doing housework such as laundry. He agreed that he told Dr Cunneen that he walked his dog daily, but said that was at the time of his examination (June 2015); his condition had worsened since then, such that he could no longer walk his dog for 30 minutes every night. As to Associate Professor Stuart’s report, he denied that at the examination he had no difficulty removing his socks and shoes; he said he had to sit down to take them off. He disputed the doctor’s observation that he had a full range of active voluntary neck movements and that his lower spine had a good range of spinal flexion. He also disagreed with the observation that he was able to walk on his heels and on his toes, and that he was able to squat. As to both Dr Cunneen’s and Associate Professor Stuart’s reports, he emphasised that they were both more than a year old and that his condition had degenerated since that time. He added that both reports would favour the insurers for whom they were written.

    [24] See Exhibit 1, T Documents, T 4, page 52, Question 180 in Mr Heazlewood’s Disability Support Pension claim form dated 21 August 2015.

35. While I do not dispute Mr Heazlewood’s evidence that his condition has degenerated since he saw Dr Cunneen and Associate Professor Stuart over a year ago, I am required to consider the position as it existed at the relevant period, not at the time of the hearing. As to the suggestion of bias by those doctors, there was no evidence to support that contention; both acknowledged in their reports that they were bound by the relevant provisions relating to the giving of expert evidence. In the absence of cogent evidence as to bias, I am not prepared to dismiss their respective reports.

36. Based on the medical evidence and observations close to, or during, the relevant period, I consider that Mr Heazlewood satisfied the descriptors for at least moderate impairment (10 points) under Table 4. At the relevant time, he was able to sit in or drive a car for at least 30 minutes, had difficulty moving his head to look in all directions, and had difficulty with overhead activities.

37. However, I agree with, and accept, the Secretary’s contention[25] that the medical evidence does not support a finding that Mr Heazlewood had a severe impairment. In particular, there is no evidence that he was unable to perform the following activities listed in the descriptors for severe functional impact: perform any overhead activities; turn his head, or bend his neck without turning his trunk; bend forward to pick up a light object from a desk or table; or remain seated for at least 10 minutes. 

    [25] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 15 June 2016, [35].

1. As I mentioned earlier, Dr Shawpan also thought that an additional 10 points should be assigned in respect of this condition under Table 1 (Functions requiring Physical Exertion and Stamina). I do not think that is permissible under the Rules for applying the Impairment Tables, since it would result in double counting. Section 10(2) of the Determination provides that the table specific to the impairment being rated must always be applied to that impairment unless there is an instruction otherwise. In the present instance, I consider that the table relating to spinal function is the most specific and appropriate table, rather than Table 1, dealing with more general activities involving physical exertion and stamina. Further, s 10(4) emphasises that if more than one table is used to assess multiple impairments resulting from a single condition, impairment ratings for the same impairment must not be assigned under more than one table.

2. I should also note s 6(9) of the Determination, which observes that there is no table dealing specifically with pain, and which sets out matters to be considered when assessing pain. The Guidelines to the Rules for Applying the Impairment Tables (“Guidelines”) helpfully provides some guidance as to the appropriate use of the tables in such instances:

   Where a permanent condition results in chronic pain, the first step is to consider the functional impact as outlined in the medical evidence, for example, does it impact spinal function, upper or lower limb function, concentration and memory or physical exertion and stamina (fatigue).

   The next step is to determine which Impairment Table/s apply to the impact while avoiding double-counting of the impairment. Selecting Tables for chronic pain:

   ·…

   ·where chronic pain does impact physical exertion and stamina and this is adequately assessed by another selected Table, there will be no need to consider the use of Table 1 – Functions Requiring Physical Exertion and Stamina,

   ·     …

   I believe the Guidelines should be followed in this case, there being no reason to suggest that they should not be applied or would work an injustice in this instance.[26] Based on that guidance, I do not consider there is any need to look beyond Table 4 and that it would be inappropriate to assign a further rating under Table 1.

   [26] See Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 (Brennan J, President)

3. It follows from what I have said that this impairment should be assigned 10 points under Table 4 and no points under Table 1.

4. As I mentioned earlier, Dr Shawpan also thought that five points should be assigned under Table 2 (Upper Limb Function). However, I consider there is little or no evidence to satisfy the descriptors for that rating under the table. Any limitations relating to overhead activities have already been adequately assessed under Table 4.

   Emphysema

5. The Secretary accepts that this condition was fully diagnosed, treated and stabilised during the relevant period.[27] Considering the length of time that Mr Heazlewood has suffered from the condition and the absence of any significant improvement despite the treatment provided by Dr Shawpan,[28] I think that concession is appropriate.

   [27] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 15 June 2016, [44].

   [28]  Exhibit 2, Annexure A to Secretary’s Statement of Facts, Issues and Contentions dated 15 June 2016, response of Dr Victor Shawpan to “Dear Doctor” letter dated 8 March 2016.

6. In response to a “Dear Doctor” letter, Dr Shawpan indicated that this condition caused Mr Heazlewood difficulty with most household tasks and shopping; most tasks he undertakes have to be sedentary.[29]

   [29] Ibid.

7. Mr Heazlewood told the SSCSD that his condition causes him shortness of breath on exertion. He has to cough a lot and has a lot of mucous in the mornings. He becomes short on breath on stairs and walking up an incline.[30]

   [30] Exhibit 1, T Documents, T 2, page 7, SSCSD decision and reasons for decision dated 1 February 2016, [21].

8. Having regard to that evidence, I agree with, and accept, the Secretary’s submission that Mr Heazlewood’s impairment attracts five points under Table 1 (Functions requiring Physical Exertion and Stamina). I do not consider there is sufficient evidence to warrant assigning a higher rating at the relevant time.

   Mood disorder

9. The first mention of this condition in the medical evidence was in a response to a “Dear Doctor” letter from Mr Harry Theodore, a clinical psychologist, in about February 2016. The condition was not previously mentioned by Mr Heazlewood in his claim form.

10. Mr Theodore’s letter records “mood disorder due to degenerative disease cervical & lumbosacral with major depressive-like episode” as the condition having most significant impact on Mr Heazlewood’s ability to function.[31] The Secretary contends that this description is more related to the symptoms Mr Heazlewood was experiencing, and falls short of being a diagnosis of a mental health disorder that is recognised under DSM-V.[32] I am inclined to agree. Significantly, Mr Theodore’s letter does not reveal the basis on which the “diagnosis” was reached. While Mr Heazlewood may be experiencing symptoms of depression, Mr Theodore’s letter stops short of attributing those symptoms to any particular distinct and diagnosable medical condition. Without more, it is difficult to accept Mr Theodore’s remarks as a diagnosis for the purposes of the Impairment Tables. That is particularly so in the absence of a corroborating diagnosis by a medical practitioner. I therefore do not think it could be said that the condition was fully diagnosed at the relevant time.

    [31] Exhibit 2, Annexure B to Secretary’s Statement of Facts, Issues and Contentions dated 15 June 2016, Harry Theodore response to “Dear Doctor” letter, undated.

    [32] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 15 June 2016, [51].

11. Mr Theodore goes on to say that all reasonable treatments had been undertaken for the condition and that this could have first been stated affirmatively from 10 July 2015. However, no evidence is provided as to what treatment Mr Heazlewood had received, and when, or what treatment was planned for the future. Significantly, Associate Professor Stuart saw Mr Heazlewood on 9 July 2015, the day before the date nominated by Mr Theodore. There was no suggestion at that time that Mr Heazlewood was being treated for a mental health condition; on the contrary, Associate Professor Stuart noted that Mr Heazlewood had been advised to seek an opinion from a psychologist concerning his depression.[33] He went on to suggest that further investigations be undertaken, including assessment at a multidisciplinary pain clinic for, among other things, the control of the depression.[34]  At the time of the ARO review in November 2015, Mr Heazlewood had attended three counselling sessions with Mr Theodore for anxiety and depression.[35]  By the time of the SSCSD hearing in February 2016, Mr Heazlewood had attended about eight sessions with a psychologist (presumably Mr Theodore), which were aimed at helping him with techniques to manage his pain.[36]

    [33] Exhibit 1, T Documents, T 15, page 96, medical report of Associate Professor Gordon Stuart dated 10 July 2015.

    [34] Ibid.

    [35] Exhibit 1, T Documents, T 6, page 60, Authorised Review Officer’s letter to Mr Heazlewood dated 2 November 2015.

    [36] Exhibit 1, T documents, T 2, page 6, SSCSD’s decision and reasons for decision dated 1February 2016,[14].

12. Having regard to that evidence, I am not convinced that the condition, even if fully diagnosed, was fully treated and stabilised at the relevant time. I say that for several reasons. First, I have difficulty with Mr Theodore’s claim that Mr Heazlewood was fully treated on 10 July 2015, when it appears likely that he did not start treating him until after that date. Second, there is no indication of what treatment Mr Theodore provided and whether it included pharmacological treatment in addition to counselling. Nor is there any intimation as to future treatment that might have been planned. Mr Heazlewood also appears to have been uncertain as to the purpose of his consultations, telling the SSCSD that they related to pain management techniques, and making no mention of counselling for anxiety and depression. Given those matters, I do not think it could be said with any confidence that the condition was fully treated and stabilised during the relevant period.

13. For those reasons, I do not consider that this condition, without more, could be said to have been fully diagnosed, treated and stabilised at the relevant time. Therefore, no impairment points can be assigned in respect of it.

    Impairment rating- summary

14. To summarise, I consider that at the relevant time, Mr Heazlewood’s impairments attracted a rating of 15 points in total, being 10 points under Table 4 (Spinal Function) and five points under Table 1 (Functions requiring Physical Exertion and Stamina).

15. On that basis, Mr Heazlewood did not qualify for DSP as he did not have the requisite 20 points at the relevant time.

    Did Mr Heazlewood have a continuing inability to work?

16. In light of my conclusion concerning Mr Heazlewood’s total impairment rating, it is unnecessary to address this question. However, for the sake of completeness, I make the following comments.

17. Based on my assessment, it appears that none of Mr Heazlewood’s impairments would be classified as severe during the relevant period, in that they did not attract 20 points on a single table.

18. In those circumstances, Mr Heazlewood would be required to satisfy the requirement that he actively participate in a Program of Support (“POS”). That means that he would have had to actively participate in a POS for a total of 18 months in the 36 months preceding the date of claim.

19. The Secretary contends that Mr Heazlewood did not meet this requirement. According to Mr Heazlewood’s Referral Summary, he had, at most, participated for 493 days (or close to 16.5 months) in the 36 months preceding his claim.[37] Mr Heazlewood offered no evidence to contradict that assertion.

    [37] Exhibit 1, T Documents, T 10, page 76, POS Referral Summary and Exhibit 2, Secretary’s Statement of Facts , Issues and Contentions dated 15 June 2016, [66].

20. Further, the Secretary relies on the JCA reports of September and October 2015,[38] which expressed the view that, with intervention, Mr Heazlewood has a capacity to work 15 to 22 hours per week within two years[39].  Again, Mr Heazlewood did not produce any evidence to contest that view.

    [38] Exhibit 1, T Documents, T 17, page 102 (JCA report dated 15 September 2015) and T 19, pages 111-112 (JCA report dated 26 October 2105).

    [39] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 15 June 2016, [75].

21. It follows from what I have said that, even if Mr Heazlewood could attract a total of 20 impairment points under the tables, he would still encounter obstacles in establishing that he had a continuing inability to work.

    CONCLUSION

22. To summarise, I consider that, at the relevant time, Mr Heazlewood had a total of 15 impairment points under the Impairment Tables. Consequently, he did not qualify for DSP at the relevant time.

23. I appreciate that this decision will be both disappointing and frustrating for Mr Heazlewood. However, it should not discourage him from making a fresh claim for DSP in the future, given both the deterioration in his spinal condition and the ongoing treatment he is apparently receiving for his mental health condition.

24. The decision under review is affirmed.

I certify that the preceding 61 (sixty -one) paragraphs are a true copy of the reasons for the decision herein of Senior Member A C Cotter

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

Associate

Dated 7 September 2016

Date of hearing	3 August 2016
Applicant	By phone
Solicitors for the Respondent	Department of Human Services