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

[2020] AATA 1137

Djuric and Secretary, Department of Social Services (Social services second review) [2020] AATA 1137 (6 May 2020)

Division:GENERAL DIVISION

File Number:          2019/4928

Re:Mile Djuric   

APPLICANT

Secretary, Department of Social Services And  

RESPONDENT

DECISION

Tribunal:Mr S Evans, Member 

Date:6 May 2020  

Place:Sydney

The reviewable decision dated 31 July 2019 to cancel the Applicant’s disability support pension, is affirmed.

.........[sgd]...............................................................

Mr S Evans, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – cancellation – whether the Applicant has an impairment rating of 20 or more points according to the Impairment Tables – whether the Applicant has a continuing inability to work – spinal condition – decision under review affirmed.

LEGISLATION

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

CASES

Freeman v Secretary, Department of Social Security [1988] 19 FCR 342

SECONDARY MATERIALS

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

REASONS FOR DECISION

Mr S Evans, Member  

6 May 2020

INTRODUCTION

1. Mile Djuric (“the Applicant”) seeks review of a decision made by the Social Services and Child Support Division (“SSCSD”) of the Administrative Appeals Tribunal (“the Tribunal”).  On 31 July 2019, the SSCSD affirmed a decision made by the Department of Social Services (“the Department” or “Centrelink”) on 29 April 2019 to cancel the Applicant’s disability support pension because he was no longer eligible.   

2. The hearing was held on 9 March 2020.  Mr Djuric appeared in person and provided evidence with the assistance of an interpreter.  The Tribunal also took oral evidence by telephone from Dr Kris Tomka.  The Tribunal has before it documentation relating to Mr Djuric’s appeal including the section 37 Tribunal documents.  The entirety of the evidence has been taken into consideration. 

3. Unless stated otherwise, the findings of fact are based on the evidence provided by the Applicant. 

4. For the reasons which follow, the decision to cancel Mr Djuric’s disability support pension will be affirmed. 

   BACKGROUND

5. Mr Djuric immigrated to Australia from Serbia in 2000.  In 2007, whilst working as a gyprock labourer at a construction firm, he injured his back.  Following his workplace injury he ceased working and later received a workers compensation payment. 

6. In May 2010, Mr Djuric was granted the disability support pension on the basis of his spinal disorder. 

7. From 2014 through 2018, Mr Djuric travelled each year to Serbia.  Except under certain circumstances, if he travelled overseas for more than 28 days during a 12 month period, the disability support pension would not be paid when he was outside the country.  Disability support pension recipients are entitled to apply for unlimited portability. For practical purposes, portability enables a successful applicant to spend in excess of 28 days each year outside Australia without detriment to their pension payments.

   Application for portability

8. In his application for review, Mr Djuric writes that he never requested to ‘take his disability support pension overseas’ and he told the Tribunal that he did not apply for portability.  This issue was explored in more detail at the hearing. 

9. Centrelink records indicate that Mr Djuric first enquired about portability for his disability support pension on 27 September 2018.  He planned to travel to Serbia on 2 October 2018 and would return on 11 November 2018.  A Centrelink service officer records: ‘Explained to customer through Serbian interpreter that DSP payment is only portable for 4 weeks during a 12 month period, & that this will recommence from 05.10.2018’. 

10. Mr Djuric travelled to Serbia as planned and, when he returned to Australia, he called Centrelink with a view to appealing the decision not to pay his disability support pension for the six week period during which he was in Serbia. 

11. A Centrelink record from 14 November 2018 provides details of the phone call.  It states that portability was discussed and indicates that Mr Djuric planned to travel again to Serbia on 10 January 2019 for an indefinite, but not permanent, period. A Centrelink record dated 15 November 2018, states that Mr Djuric ‘was advised of risk of cancellation following medical review.  Agreed to proceed with review’.

12. The documents before the Tribunal determine that Mr Djuric applied for portability on 14 November 2018 and attended a face to face assessment in relation to his application on 19 December 2018. 

13. Based on Mr Djuric’s testimony at the hearing, the Tribunal concludes that Mr Djuric did apply for portability and then sought to withdraw his application upon realising that his eligibility would be reviewed and there was a risk he may lose his disability support pension during the review process. 

    Cancellation

14. Disability support pension recipients applying for portability are required to undergo an assessment of their impairment and future work capacity. A Job Capacity Assessment (“JCA”) was performed in December 2018 and a JCA report followed in January 2019. 

15. The JCA report determined that Mr Djuric was ineligible for disability support pension; and on 13 March 2019, his disability support pension was cancelled.

    RELEVANT LEGISLATION

    Qualification for disability support pension

16. The Department’s decision to cancel Mr Djuric’s disability support pension was made under subsection 80(1) of the Social Security Administration Act 1999 (Cth) (“the Administration Act”), after finding that Mr Djuric did not satisfy paragraphs 94(1)(b) and (c) of the Social Security Act 1991 (Cth) (“the Act”).

17. The qualifying requirements for the disability support pension at subsection 91(1) of the Act require that a disability support pension applicant has:

    (a)… 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;…

18. The Impairment Tables[1] referred to in section 94(1)(b) of the Act, are used to assign ratings to determine the level of functional impact that a condition has on an applicant. Only medical conditions that are permanent, have been fully diagnosed, fully treated and fully stabilised and are likely to persist for at least two years, can be allocated points under the Impairment Tables.

    [1] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (“Impairment Tables”).

19. Subsection 6(6) of Part 2 of the Impairment Tables sets out the requirements for a condition to be fully stabilised: 

    (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.

20. Reasonable treatment is defined at subsection 6(7) of the Impairment Tables as treatment that: 

    (a)is available at a location reasonably accessible to the person; and

    (b)is at a reasonable cost; and

    (c)can reliably be expected to result in a substantial improvement in functional capacity; and

    (d)is regularly undertaken or performed; and

    (e)has a high success rate; and

    (f)carries a low risk to the person.

    THE ISSUE

21. The Tribunal must determine whether Mr Djuric qualified for the disability support pension at the date of cancellation, being 13 March 2019.

    EVIDENCE  

22. As the Secretary accepts that Mr Djuric has impairments, there is no contention that he meets the requirements of section 94(a) of the Act. The first issue for determination is whether his impairments rate 20 points or more under the Impairment Tables. If they do, it will be necessary to consider if the Applicant has a continuing inability to work.

    Spinal condition

23. The Secretary agrees that this condition was fully diagnosed, treated and stabilised on 13 March 2019. I am satisfied that this is appropriate.  The Secretary contends that the appropriate functional impairment resulting from this condition is zero points under Table 3 (lower limb function) and 5 points under Table 4 (spinal function) of the Impairment Tables. 

24. Mr Djuric contends that the appropriate rating for this condition is 30 points under Table 4 and 20 points under Table 5, a rating submitted by his treating general practitioner, Dr Tomka. 

25. The rules for applying the Impairment Tables require that where a single condition causes multiple impairments, each impairment must be assessed under the relevant Table.  When using more than one Table to assess multiple impairments resulting from a single condition, impairment ratings for the same impairments must not be assigned under more than one Table. 

26. Mr Djuric told the Tribunal that he has a metal plate in his back following an operation for his injury.  He has difficulty sleeping and is often uncomfortable because of the pain in his back. 

27. At hearing, the Tribunal heard oral evidence from Mr Djuric’s general practitioner, Dr Tomka.  Dr Tomka last saw Mr Djuric on 10 December 2019 in order to prepare a report for the present application.  He performed an examination which included consideration of his movement capabilities.  Dr Tomka did not keep his notes, but confirmed that Mr Djuric’s symptoms were unchanged from nine months ago.  He confirmed that Mr Djuric’s spinal condition had an ‘extreme’ functional impact on Mr Djuric and testified that a rating of 30 points under Table 4 was appropriate, as was 20 points under Table 5.  

28. Noting that the report from Dr Tomka was sometime after the date of cancellation, the Tribunal accepts his evidence given the nature of the condition. 

29. The Respondent’s representative questioned Mr Djuric about his activities.  Mr Djuric confirmed that he travelled each year from 2014 through 2018 to Serbia.  He prefers to get a seat next to the aisle so that he can get up mid-flight and walk about the cabin as it relieves the pain in his spine.  He does not book an aisle seat but may request it.  He carries his own luggage which he says is light. 

30. Mr Djuric has relatives in Newcastle and would drive his car from Sydney to visit them, stopping along the way for food and to stretch for up to 15 minutes.  He does not drive as often as he used to because in the last six months the pain in his leg has gotten worse.  This, he told Tribunal, is why he has only been to the beach once in the last 12 months. 

31. The JCA report states that Mr Djuric ‘reported that he drives to the beach (approximately 2 hour return trip) most days to walk and swim in the ocean’.  Mr Djuric disputes this stating that he does not go to the beach more than once a year, but up until recently would swim at the council pool.  He said that the reference to daily activity was to his walking, which I accept. 

32. Mr Djuric enjoys walking and walks most days on a set circuit around his neighbourhood.  He likes to walk in nature and does this when he visits Serbia.  He particularly likes walking in Serbia as the climate helps with his condition and he generally feels better. 

33. Under questioning by the Respondent’s representative, Mr Djuric confirmed that he visits his son who lives nearby.  He walks there and it takes five minutes. He also has a brother who lives approximately 20 kilometres from his home.  Mr Djuric used to visit him often but does not visit as much now because he says the radiating pain in his leg has become worse in the last six months. 

34. Mr Djuric lives with his wife, one of his sons and his son’s girlfriend.  To get to his front door he needs to walk up 11 steps.  He says it is easier to climb the stairs than it is to descend.  He does not require help to perform daily tasks such as shaving, or cooking, which he does once a week.  He told the Tribunal that he was not ‘completely invalid’ and can put away items into overhead compartments.  He can go grocery shopping, he can drive, he can shower and he does not require any assistance walking. 

35. Following his November 2019 assessment, Dr Tomka reported:

    Mr. Djuric is suffering from multiple health conditions of which his spinal condition has the greatest impact on his everyday activities.  Mr Djuric had a lumbar spine fusion and laminectomy in 2020 for spondylolisthesis at L5/S level. 

    Unfortunately the results of the operation did not improve his symptoms…

    Mr. Djuric is not able to perform any overhead activities he also is not able to turn his head, neither bend his neck without moving his trunk. 

    Mr. Djuric is also not able to bend forward to pick up a light objects from a desk or table, he is not able to remain seated more than 10 minutes. 

    [errors in original]

36. Mr Djuric also has provided a letter from general practitioner, Dr Velibor Todorovic, who writes that Mr Djuric has a continuing inability to work and refers to being guided by Dr Simon McKechnie in his opinions. 

37. Dr McKechnie is a neurosurgeon who reports in May 2019, that he saw Mr Djuric for a review that month.  Prior to the review, he last saw Mr Djuric in 2010.  He writes that Mr Djuric has ‘chronic lower back pain radiating intermittently through both legs and into the calves’.  He notes that a CT scan has shown ‘mild degenerative changes and small disc protrusions at other levels’.  Dr McKechnie confirms that the Applicant has an ‘incapacity to work’. 

38. A subsequent report from Dr McKechnie is also before the Tribunal. The June 2019 report follows the results of an MRI scan, which Dr McKechnie concludes:

    …demonstrates a good appearance at the previous operative site with no significant residual canal foraminal stenosis apart from mild narrowing on the right side.  There is no nerve root impingement…

39. Dr McKechnie concludes that based on the MRI findings, he would recommend ‘nonoperative treatment’, specifically ‘Lyrica for neuropathic pain’ and ‘analgesics as required’. 

40. Mr Djuric was questioned by the Respondent’s representative about his travels to Serbia.  He confirmed that whilst he can no longer go to Serbia because he cannot afford to, he described his long-haul travels as not requiring any special assistance.  Whilst in Serbia he stays at his brother’s house, he walks to pass the time and regularly eats out in restaurants.  Time permitting, he walks every day. 

41. The available evidence and Mr Djuric’s own description of his capabilities and how he spends his time, accords most closely with the descriptors for a mild functional impact under Table 4, which attracts 5 points.  

    Hypertension

42. A letter dated May 2019 from Dr Todorovic confirms that Mr Djuric has been suffering from hypertension since 2009 and notes that he takes daily medication for the condition, but provides no further details. 

43. Mr Djuric told the Tribunal that when he experiences pain related to his hypertension it impacts his mental state.  He agreed that the medication he takes for his high blood pressure helps with symptoms. 

    Mental health

44. Mr Djuric contends that he suffers from post-traumatic stress disorder (“PTSD”); and the Tribunal has before it a letter dated 19 September 2019 from consultant psychiatrist, Dr Blagoje Kuljic.  Dr Kuljic writes that Mr Djuric has ‘presented today reporting ongoing symptoms of chronic war related (trauma from torture) Posttraumatic Stress Disorder’.  This is notably a report of symptoms rather than a diagnosis by Dr Kuljik. 

45. Dr Kuljik states that Mr Djuric ‘is still reluctant to engage in a treatment with medication as it was the case during the first assessment’.  Dr Kuljik attributes Mr Djuric’s reluctance to commence appropriate treatment to cultural considerations; but I note that in 2001 it was reported that Mr Djuric was taking medication for post-traumatic stress disorder. He advised Mr Djuric to engage in psychotherapy which is provided by NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors.  At the hearing Mr Djuric confirmed that he is yet to do so.  

46. An earlier report by Dr Kuljik from May 2019 provides a similar recommendation including that Mr Djuric consider medication. 

47. The Secretary submits that Mr Djuric’s mental health condition has not been diagnosed.  The evidence however does point to an indication of a diagnosis and description of his symptoms.  Dr Kuljic certainly recommends treatment which has not been commenced; and therefore the condition is not fully treated and the Tribunal is unable to allocate any points for this condition under the Impairment Tables. 

    Nephrolithiasis

48. Mr Djuric has kidney stones and there is no contention that the condition is fully diagnosed, treated and stabilised.  It was diagnosed in 2011 and he had surgery to address the condition in 2014. 

49. There is no medical evidence before the Tribunal which indicates that this condition continues to have a functional impact on Mr Djuric.  As such, it is appropriate that this condition is allocated zero impairment points. 

    CONCLUSION

50. During the hearing, Mr Djuric indicated that his spinal condition had deteriorated since cancellation of his disability support pension.  There is no medical evidence before the Tribunal to support this contention, but even if it were the case, the Tribunal cannot take this into consideration as the Tribunal is required to consider Mr Djuric’s impairments at the time his disability support pension was cancelled.  The Federal Court determined in Freeman v Secretary, Department of Social Security that the Tribunal could not consider facts which postdate a social security decision under review.  Davies J said:

    The function of the Tribunal was therefore to reconsider the decision of 19 May 1987 and to determine whether the decision to cancel Mrs Freeman's widow's pension at that time was the correct or preferable decision to have been made. In coming to its decision, the Tribunal was entitled to take into account all the facts proved before it. But the issue was whether, having regard to those facts, the decision to cancel made on 19 May 1987 was the correct or preferable decision, not whether Mrs Freeman had an entitlement to a widow's pension as at the date of the Tribunal's decision.

    …

    The ambit of the jurisdiction of the Administrative Appeals Tribunal in relation to the review of a decision to cancel a pension or benefit is therefore less than would be the jurisdiction of the Tribunal in respect of a refusal to grant a pension or benefit or a decision suspending the payment of a pension or benefit. In the latter cases, there may well be an ongoing entitlement to a pension or benefit which the Tribunal should recognise when formulating its decision. However, if the Tribunal comes to the view that the decision to cancel was the correct or preferable decision, then no further matter remains for the Tribunal's consideration. Any entitlement of the applicant to a pension or benefit at a subsequent time must be the subject of a further claim which, having been made, would only become the subject of review within the Tribunal's jurisdiction once a decision with respect to it had been made by an officer of the Department of Social Security and that decision had been the subject of appeal and reconsideration in accordance with s.19[2].

    [emphasis added]

    [2] [1988] 19 FCR 342.

51. For the reasons stated above, the Tribunal finds that Mr Djuric can be allocated a total of 5 impairment points under Table 4. As Mr Djuric’s conditions are not assigned 20 points or more under the Impairment Tables on the date his disability support pension was cancelled, he does not satisfy section 94(1)(b) of the Act; and is not qualified for the disability support pension. Therefore, it is not necessary for the Tribunal to determine whether Mr Djuric had a continuing inability to work.

    DECISION

1. The decision under review is affirmed. 

I certify that the preceding 52 (fifty-two) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member.

..........[sgd]..............................................................

Associate

Dated: 6 May 2020

Date of hearing:	9 March 2020
Applicant:	In person
Solicitors for the Respondent:	Dr Stephen Thompson, Services Australia