Bozinovski and Secretary, Department of Social Services (Social services second review)
[2020] AATA 23
•13 January 2020
Bozinovski and Secretary, Department of Social Services (Social services second review) [2020] AATA 23 (13 January 2020)
Division:GENERAL DIVISION
File Number: 2018/5606
Re:Kiro Bozinovski
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Dr Damien Cremean, Senior Member
Date:13 January 2020
Place:Melbourne
The Tribunal affirms the decision under review.
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Dr Damien Cremean, Senior Member
Catchwords
SOCIAL SECURITY—disability support pension—whether Applicant satisfies relevant tests—medical conditions including (right) supraspinatus tear and tennis elbow and adjustment disorder with mixed anxiety and depressed mood—whether Applicant to be awarded 20 points under Impairment Tables—whether Applicant’s conditions fully diagnosed, treated and stabilised—decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension)Determination 2011 (Cth)
REASONS FOR DECISION
Dr Damien Cremean, Senior Member
13 January 2020
BACKGROUND
The Applicant, Mr Kiro Bozinovski, seeks review of the decision dated 31 August 2018 made by the Social Services & Child Support Division (‘Tier 1’) of this Tribunal. The decision of Tier 1 was to affirm the decision of the Centrelink authorised review officer dated 12 April 2018, which affirmed the original decision made on 2 May 2017 to reject Mr Bozinovski’s claim for the disability support pension (‘DSP’).
The DSP is payable under the Social Security Act 1991 (Cth) (‘Act’) if the following requirements of s 94(1) of the Act are satisfied:
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 Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and
…
HEARING
At the hearing of this matter, the Applicant represented himself and gave sworn evidence in person, with the assistance of an interpreter in the Macedonian language. He was also assisted by his son Mr Ilija Bozinovski.
The hearing was conducted over two days on 15 May 2019 and 16 December 2019.
The Respondent was represented by Mr Nguyen, a solicitor from Sparke Helmore Lawyers.
Affirmed evidence was also given by telephone by the Applicant’s General Practitioner (‘GP’), Dr J Ristevski.
ANALYSIS
Section 94(1)(a)
It was not in dispute that the Applicant satisfies s 94(1)(a) of the Act. In other words, it was not in issue that he has, and at the material time had, a physical, intellectual or psychiatric impairment.
In that regard it was not in issue that Mr Bozinovski lives with a number of conditions including (right) supraspinatus tear and tennis elbow; chronic adjustment disorder with mixed anxiety and depressed mood; diabetes mellitus (type 2); chronic back pain/degenerative lumbo-sacral spine disc disease; and chronic neck pain/degenerative cervical spine disc disease.
I am satisfied on the materials provided by the Respondent under section 37 of the Administrative Appeals Tribunal Act 1975, referred to as the ‘T documents’, and on the evidence given to me, that it was correctly conceded that Mr Bozinovski satisfies s 94(1)(a) of the Act.
Section 94(1)(b)
The real issue in this matter, as I see it, is whether Mr Bozinovski satisfies s 94(1)(b) of the Act; that is to say, whether he has an impairment rating of 20 points or more under the Impairment Tables.
The Impairment Tables are set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension)Determination 2011 (‘the Tables’) and are made under the Act.
If I am satisfied that the Applicant does satisfy s 94(1)(b) of the Act, it is still a matter of deciding whether he also satisfies s 94(1)(c) of the Act.
I am required to assess Mr Bozinovski’s eligibility for the DSP throughout the qualification period only; that is, during a period of 13 weeks from the date of his claim on 2 May 2017. This 13 week period (‘the qualification period’) is a period prescribed by the Act and by Schedule 2, s 4(1) of the Social Security (Administration) Act 1999.
To satisfy the requirements of the Tables, which are function based, the Applicant’s conditions must be fully diagnosed, treated and stabilised and likely to last for more than two years as set out in Part 2 of the Tables.
I shall deal with each of Mr Bozinovski’s conditions separately.
(Right) supraspinatus tear and tennis elbow
It was very plain to me that Mr Bozinovski suffers considerable pain and discomfort in his right arm and elbow, and I accept his evidence that this has been so for a long period of time, including during the qualification period.
In evidence, the Applicant said that his condition happened over a course of time. He said it happened over many years working a very hard job. However, he said there was not one specific incident at work that caused it.
Mr Bozinovski said in evidence I can’t sleep at night because of pain. He said his condition has slowed me down considerably and has disabled me doing what I used to [do in]… my everyday tasks.
Furthermore, it is clear to me on the evidence that the Applicant’s condition is quite debilitating and painful. I accept that the condition in his right arm, elbow and shoulder should be considered as described, and I base that finding on the medical report of Dr J Ristevski dated 26 August 2016.
However, in evidence the Applicant agreed that his doctor had said he should have an operation, but he had declined to follow this advice.
The medical report in the T documents dated 5 October 2012 from Mr E Raleigh, an orthopaedic surgeon specialising in shoulder and knee surgery, states that the Applicant’s x-rays and ultrasound show a full thickness 2cm retracted tear of the supraspinatous [sic] tendon. Mr Raleigh states in the report that at the Applicant’s age (then 54) I would always suggest an arthroscopic repair.
In reference to Mr Raleigh’s opinion (as I take it to be), Mr Bozinovski declined to follow this suggestion. He stated in evidence that even if I had an operation…he couldn’t guarantee that I could get better. And, if I did get better, he said that I should be very careful because it could happen again. It could be bad again.
The Applicant added, however, that he had had unsuccessful eye surgery in the past. He said that as a result, I felt with regard to the shoulder that the doctor didn’t give me enough arguments to go for it.
It is possible under the Tables to justifiably be excused from a requirement to have surgery if the choice being made is reasonable. I do not however regard Mr Bozinovski’s decision not to undergo surgery on his shoulder as reasonable. His eye surgery initially took place overseas and was redone in Australia. The eye is quite different to the shoulder. Furthermore, the suggestion to have surgery made by Mr Raleigh was the suggestion of an expert.
In failing to have the suggested surgery I am satisfied that the Applicant’s condition is not fully treated.
It follows that no points can be awarded for that condition under the Tables.
Chronic adjustment disorder with mixed anxiety and depressed mood
Mr Bozinovski gave evidence of his anxiety disorder, which he said did originate much further back. I consider he was then referring to his shoulder or back problem. Indeed, he said what I’m saying [is] that it is the shoulder and elbow injury that triggered this, but it has roots much further back. He said his anxiety leads to feeling low mood, worrying, not being able to cope with problems, having very low tolerance when there are problems.
I accept and find that Mr Bozinovski suffers the condition as described, and I rely in that regard on the report of Associate Professor Michael Wong, consultant psychiatrist, dated 24 May 2018. Professor Wong states that the clinical picture is that of Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood. I accept that this report is outside the qualification period but I am not troubled by that because it speaks of Mr Bozinovski’s longstanding anxiety and depression dating from 2012. I am satisfied in the circumstances that he has suffered this way throughout the qualification period.
I disagree with Tier 1 of this Tribunal in this regard, and am satisfied on the evidence that Mr Bozinovski’s condition is fully treated diagnosed and stabilised. I accept the expertise of Professor Wong and I note that the Applicant takes regular prescribed medication (Lexapro).
However, I am satisfied based on the evidence given by Dr Ristevski that in terms of Table 5 of the Tables, Mr Bozinovski experiences only moderate functional impact as a result of his condition. Dr Ristevski was quite clear in my view that it could not be said that the Applicant experiences severe functional impact.
I was somewhat surprised by this but I rely on Dr Ristevski’s evidence, which was not challenged, and find that in terms of Mr Bozinovski’s mental health function, he can be assigned only 10 points under Table 5 of the Tables.
Diabetes mellitus (type 2)
I accept and find that Mr Bozinovski suffers from this condition as described. I rely in that regard upon the written report of Dr Ristevski dated 26 August 2016.
In evidence the Applicant was asked how his diabetes affected him, and he referred to a need to control my vision, my eyes, look after my eyes and to be on a proper diet. He also referred to the number of times he must go to the toilet at night - for sure four times, he said.
The effects of this condition are of course most bothersome, but I was unable to detect from the evidence any functional impact on Mr Bozinovski’s life as a result of his condition.
Consequently, no points can be awarded under any of the Tables for this condition.
Chronic back pain/degenerative lumbo-sacral spine disc disease and chronic neck pain/degenerative cervical spine disc disease
I accept that Mr Bozinovski suffers this condition and in this regard I rely upon the written report of Dr Ristevski dated 26 July 2018.
However, on this occasion I am concerned that this report is made after the qualification period and also that there appears to be nothing else by way of medical evidence that is strongly in support of this condition. Nor was there detailed evidence given by Mr Bozinovski in respect of his condition, which Tier 1 noted was something he had suffered at that time for about 10 years.
As a result, I am unable to say whether the Applicant’s condition has been fully diagnosed or treated or stabilised during or before the qualification period.
I agree with Tier 1 and consider that there is insufficient evidence for me to be able to make any findings about the Applicant’s condition under any of the Tables. Further, I note that CT scans taken of the Applicant were done in late 2017 and 2018, a period outside the qualification period.
Section 94(1)(c)
In light of my findings regarding s 94(1)(b) of the Act, no occasion arises for me to consider s 94(1)(c) of the Act.
DECISION
Finding, as I do, that the Applicant does not satisfy s 94(1)(b) of the Act, the decision under review must be affirmed.
I certify that the preceding 41 (forty-one) paragraphs are a true copy of the reasons for the decision herein of Dr Damien Cremean, Senior Member.
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Associate
Dated: 13 January 2020
Dates of hearing: 15 May 2019 and 16 December 2019 Applicant: Self-represented Advocate for the Respondent: Mr Nam Nguyen Solicitors for the Respondent: Sparke Helmore Lawyers
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Statutory Construction
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Standing
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