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

[2017] AATA 401

Dujmovic and Secretary, Department of Social Services (Social services second review) [2017] AATA 401 (30 March 2017)

Division:GENERAL DIVISION

File Number:           2016/1967

Re:Marino Dujmovic

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Mr D.J. Morris, Member

Date:30 March 2017

Place:Perth

The Tribunal affirms the decision under review.

......................[SGD]..................................................

Mr D.J. Morris, Member

CATCHWORDS

SOCIAL SERVICES – Disability Support Pension (DSP) – whether qualified – whether conditions have functional impact warranting 20 or more impairment points – not qualified for DSP – decision affirmed

LEGISLATION

Employment and Workplace Relations Legislation Amendment (Welfare to Work and Other Measures) Act 2005 – sch 2 s 13

Social Security Act 1991 – ss 94(1)(a) – 94(1)(b) – 94(1)(c)

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 – ss 5(2) – 6(1) – 11(5) – Table 4

REASONS FOR DECISION

Mr D.J. Morris, Member

30 March 2017

BACKGROUND

1. The Applicant, Mr Marino Dujmovic, has been in receipt of Disability Support Pension (DSP) since August 2002.  On 21 August 2015 his DSP was cancelled by the Department of Human Services (the Department) on the grounds that he was no longer qualified for the benefit (T25 pp 104-5; T26 pp 106-7). This decision to cancel is called in these reasons ‘the original decision’.

2. Mr Dujmovic sought a review of the original decision by an Authorised Review Officer (ARO), an officer of the Department not involved in the original decision. On 7 January 2016 the ARO affirmed the original decision (T30 p 113).

3. Dissatisfied with that decision, Mr Dujmovic sought a review by the Social Services and Child Support Division of this Tribunal (AAT1).  A hearing was held on 22 March 2016 and AAT1 affirmed the original decision (T2 p 4).

4. Mr Dujmovic has now sought a review by the General Division of the Tribunal.  That is this hearing.  At the commencement of the hearing, it was explained that the Tribunal’s task is to consider whether the original decision was the correct and preferable decision.

5. The hearing was held on 16 February 2017. The Applicant was represented by Mr Dangubic and the Respondent by Ms Sharon Sangha. The Applicant gave evidence and was cross-examined.  An interpreter in the Croatian language assisted in the hearing.

6. The Respondent tendered documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975 (‘T’ documents), which were admitted into evidence.

7. The following documents were also admitted into evidence:

   ·Respondent’s Statement of Facts, Issues and Contentions dated 17 November 2016 with one annexure (Exhibit R1);

   ·The Applicant’s Statement of Issues, Facts and Contentions dated 10 October 2016 with nine annexures (Exhibit A1);

   ·The Applicant’s Reply to the Respondent’s Statement of Issues, Facts and Contentions dated 25 November 2016 (Exhibit A2);

   ·Affidavit of Marino Dujmovic sworn on 13 February 2017, with five pages annexed (Exhibit A3); and

   ·Affidavit of Ljiljana Dujmovic sworn on 13 February 2017, with signed statements from Boris Dujmovic, Joachim-Ivan Dujmovic and Gorjan Dujmovic, each dated 9 October 2016 (Exhibit A4).

8. Mr Dujmovic was granted DSP in 2002 after being diagnosed with lower back pain with left side sciatica (T12 p 45; T24 p 114).  On 30 June 2015, he contacted the Department to inquire about indefinite portability of his DSP (T38 pp 137-139).  On 1 July 2015, Mr Dujmovic was told by the Department that his eligibility for indefinite portability would require him to undergo a medical review of his eligibility for DSP and he was asked to complete a Work Capacity and Medical Report for Disability Pension – Review for portability (T23 p 88; T38 p 138).

9. On 15 July 2015, Mr Dujmovic completed section A of the Work Capacity form and on the same date his general practitioner, Dr Adam Nuttall, completed section B, the Medical Report part of the form (T22 pp 80-87; T23 pp 88-97). This document was before the Tribunal.

   Qualification for DSP under the Act

10. The law applicable to the grant of DSP is the Social Security Act 1991 (the Act) and in particular section 94 of that Act.

11. In order to qualify for DSP, a person’s claim must be assessed under section 94(1) of the Act and the qualification criteria for DSP must be satisfied. For this reason, it must be established that the person applying has:

    (a)       a physical, intellectual or psychiatric impairment; and

    (b)the impairment or impairments must attract a rating of 20 or more points under the Impairment Tables; and

    (c)       a continuing inability to work.

12. The Impairment Tables referred to in section 94(1)(b) of the Act are to be found in subordinate legislation, namely a ministerial determination called the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination). This Determination came into effect on 1 January 2012 and is applicable to assessments of qualification for DSP from that date.

13. The applicable provision relating to the Applicant’s ability to “work” under

    
    

    subsection 94(1)(c) and section 94(5) of the Act is work that is for at least 15 hours a week.

14. However, when the law was changed in relation to a continuing inability to work by the Employment and Workplace Relations Legislation Amendment (Welfare to Work and Other Measures) Act 2005, transitional provisions were included in Schedule 2, Part 1, section 13 so that, in the words of the explanatory memorandum tabled by the Minister at the time, people who were receiving DSP on 10 May 2005 will not be affected by the changes to DSP qualification. As Mr Dujmovic is in the category of persons who were receiving DSP on this date, provided he satisfies the requirements of section 94(1)(a) and 94(1)(b) of the Act, he does have a continuing inability to work, and the Respondent Secretary conceded that in Exhibit R1.

15. So, therefore, for Mr Dujmovic to be qualified for DSP, he must have impairment within the meaning of the Act. Secondly, the impairment, or impairments if there is more than one, must be assigned a rating of 20 or more points under the Impairment Tables. That is the matter before the Tribunal.

    Does the Applicant have a physical, intellectual or psychiatric impairment?

16. In his medical report of 15 July 2015, Dr Nuttall stated that the condition with the most impact on Mr Dujmovic was osteoarthritis “affecting whole of spine: chronic severe back pain: Forestier’s disease: [left side] sciatica” (T23 p 90). He said that this condition had been confirmed by a diagnosis of ‘Professor Carroll’. He said that Mr Dujmovic was on a regimen of medication and physiotherapy and that future/planned treatment was “possible surgery” (T23 p 91). Dr Nuttall said that the first symptoms followed a motor vehicle accident the Applicant was involved in and that there has been slow deterioration since then.  In terms of the functional impact of this condition, Dr Nuttall said Mr Dujmovic had “variable time sitting – 150-60 mins” and was “unable to lift” (T23 p 92).  He expected the condition to deteriorate.

17. Dr Nuttall listed three other conditions of the Applicant in the part of the form provided for medical conditions that are generally well managed and caused minimal or limited impact on the person’s inability to function. The conditions listed were: Hypertension, Impaired Fasting Glucose; Obesity (T23 p 96).

18. The Tribunal had before it a medical letter from Dr Graeme Carroll, FRACP, consultant physician in rheumatology, dated 18 December 2015 (T28 p 110). Although this letter is dated after the date of the original decision, Dr Carroll relates that he last saw the Applicant some eight years ago and “sadly in the interim he has only continued to deteriorate”.  Dr Carroll stated:

    Mr Dujmovic has severe spinal disease Forestier’s disease causing significant and disabling thoracic pain and lumbar degenerative disease that is not amenable to cure, reversal, simplistic treatment and for which the likelihood of recovery is less than 1%.

19. On the basis of the medical evidence before me, I find that Mr Dujmovic satisfies the requirements of section 94(1)(a) of the Act. He did have impairment on the date of the original decision, namely a spinal condition, hypertension, impaired fasting glucose and obesity.

20. The next step is to consider Mr Dujmovic’s medical conditions in relation to the Determination. If he is correctly assigned 20 or more impairment points, he would satisfy the requirements to receive DSP.

    What is the correct rating under the Impairment Tables?

21. The Impairment Tables are function-based rather than diagnosis-based and describe functional activities, abilities, symptoms and limitations.  They are designed to enable the assignment of ratings to determine the level of functional impact of impairment and not to assess conditions (see Part 2, section 5(2)).

22. Section 6(1) of the Impairment Tables sets out that, when assessing functional capacity, a person’s impairment must be assessed on the basis of what a person can, or could do, not on the basis of what a person chooses to do or what others can do for the person.

23. Section 6(2) also provides that the Impairment Tables may only be applied after a person’s medical history, in relation to the condition causing the impairment, has been considered.

24. Under section 6(3), an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent, and the impairment that results from that condition is more likely than not, in the light of available evidence, to persist for more than 2 years.

25. Section 6(4) of the Impairment Tables provides that, for a condition to be permanent, it must be fully diagnosed, fully treated and fully stabilised by an appropriately qualified medical practitioner.

26. The Impairment Table Determination also provides, at section 6(8), that the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating can be assigned.  In other words, a person may be diagnosed with a condition but, with appropriate treatment, the impairment rating from the condition may not result in any functional impact.

    Spinal condition

27. On 5 August 2015 Mr Dujmovic underwent a Job Capacity Assessment (JCA) (T24).  The JCA considered the Applicant’s spinal condition and recommended that it be regarded as fully diagnosed, fully treated and fully stabilised. The JCA noted that although Mr Dujmovic had seen Dr Carroll on a number of occasions, he had not seen him “for many years” (T24 p 99).  This is corroborated by Dr Carroll’s letter of 18 December 2015 where he wrote that he had last seen Mr Dujmovic eight years before, i.e. in 2007 (T28).  The JCA reported that there were “no imminent plans for surgery or other interventions” (T24 p 99).

28. Mr Dujmovic told the assessor that he takes up to eight Panadeine Forte a day, and also Indocid, an anti-inflammatory drug.  Mr Dujmovic said he was not enthusiastic about surgery and maintained a light exercise routine (T24 p 99).

29. In terms of the functional impact of this condition, the Respondent referred to evidence before AAT1 where the Applicant said he could bend and could take short trips in a motor vehicle.  The Respondent also noted that Mr Dujmovic has travelled annually overseas since 2012 and contended that this evidence is consistent with an assignment of 5 impairment points under Table 4 – Spinal Condition.

30. The Respondent submitted that the Tribunal should not give strong weight to Dr Carroll’s December 2015 medical letter because of the long hiatus between that date and when he had previously seen the Applicant.  The Respondent said that Dr Carroll’s conclusions about functional impact were not consistent with the evidence given to AAT1 and to the fact that Mr Dujmovic had worked as a taxi-driver: he can sit in a car, he does not need help to get out of bed and he is limited in his overhead activities.  The Secretary submitted that 5 impairment points are warranted, because the Applicant had difficulty turning his trunk (Exhibit R1 para 54).

31. In his evidence, Mr Dujmovic said that he sometimes cannot turn his head as his upper spine is affected.  He said his ability to turn right and left is limited and “sometimes, I can’t at all.”  When asked whether he had these problems before 21 August 2015 when the DSP was cancelled, the Applicant said that he did, but they were “slightly milder” than they are now.  He said that he did drive and could walk at that time between 200 and 300 metres.  He said on bad days he could not drive, but on a good day he could drive about one kilometre to the local shop to buy items.  He said he had made an application for portability because he finds the winter weather affects his spinal condition more.

32. When asked about his overseas travel, Mr Dujmovic agreed that he had travelled at the end of August 2015.  He was overseas for four months and his wife returned to Australia earlier.  He said that he stayed with family overseas and visited local doctors, but did not elucidate much on that.

33. He agreed that, when driving taxis, he could drive for some 15 to 20 minutes to Perth Airport and gave evidence about discomfort from continence problems, but although the Tribunal does not question this, there was no corroborative medical evidence before me about this condition.

34. The Applicant’s wife also gave evidence about the functional impact of her husband’s spinal condition on his daily life and how she assists him.  She confirmed his air travel to Europe and said he would have to get up to walk about the aeroplane cabin because of discomfort with his back. 

35. Mr Dujmovic does have difficulties in undertaking overhead tasks and in movement of his trunk.  However, he said he could walk up to 300 metres.  In his tax return for the 2014/15 financial year, Mr Dujmovic declared earnings of some $25,000 as a taxi driver, which is consistent with his own evidence about that work. He also travelled overseas for extended periods and, at least sometimes, travelled independently without family assistance. The Tribunal notes that he apparently travelled overseas at the end of April 2016.

36. Considering the Descriptors in Table 4, the evidence weighs towards the assignment of 5 impairment points.  While I do not necessarily dispute Mr and Mrs Dujmovic’s evidence about the effect on daily activities at home, the Tribunal requires independent medical evidence which would complement what they say.  The allocation of 20 or more impairment points at the time of cancellation, for this condition, is plainly not made out.

37. In Exhibit A1, the representative of the Applicant urged the Tribunal to take into account medical reports from Dr Nuttall and Dr Carroll which post-date the date of cancellation.  While some of these conclusions may be referrable to Mr Dujmovic’s condition before 21 August 2015, on his own evidence he is now unable to perform a number of tasks that he could do at that time, so it is clear to me that the spinal condition was not stabilised and, as Dr Carroll’s opinion in December 2015 stated, is deteriorating.

38. However, the bald statement in Exhibit A1 (para 16):

    “Dr Carroll has been the applicant’s doctor for many many years”

    is misleading, because it implies a continuing and regular relationship between patient and clinician, which is not the case here. The Tribunal had before it clear evidence from Dr Carroll that, while he had seen Mr Dujmovic in the past after his car accident, he had not seen the Applicant for eight years before his December 2015 examination.

39. The Tribunal notes Dr Carroll’s particular medical expertise, but the grant of DSP is because a person has a functional inability to work, not purely because they have a particular medical diagnosis, and in the case of cancellation, that functional inability must be assessed at that time, not subsequently.

40. Exhibit A1 also contended that Dr Nuttall’s opinion was that Mr Dujmovic was unable to walk for longer than 200 metres and struggled with travel (para 25). That may possibly be the case now, but it was factually not the case, including on the Applicant’s own evidence, at the time of cancellation.  He said he could walk for up to 300 metres and he travelled annually to Europe.

41. In Exhibit A2, the Tribunal was urged to consider assigning impairment points under Table 1 – Functions requiring Physical Exertion and Stamina, Table 3 – Lower Limb Function and Table 5 – Mental Conditions, but Mr Dangubic did not provide any specific or detailed arguments to support this contention. The Tribunal notes there was nothing before it that Mr Dujmovic had permanent conditions, in the terms of the Determination, relevant to assignment of points under these Tables, at the time his DSP was cancelled. If he has such conditions now, that would be relevant to a fresh claim for DSP.

    Other conditions

42. The evidence about other medical conditions affecting Mr Dujmovic is somewhat scant.  In evidence he said that his high blood pressure condition had existed “way before” 2015 and that his weight had remained “pretty constant”. In answer to a question from the Tribunal, Mr Dujmovic said his weight at December 2015 was around 128 kilograms but now he was 143 kilograms, and noted he had been taking steroids for the last six months.

43. The Tribunal therefore concludes that, under section 11(5) of the Determination, zero points should be assigned for Mr Dujmovic’s hypertension and impaired fasting glucose conditions. Dr Nuttall says that these conditions cause minimal or limited functional impact and, although the Applicant told the JCA that his high blood pressure had meant he was not “medically cleared” to continue as a taxi driver, there was no independent documentation of this, nor the remarks in his statement to Centrelink in December 2015 that his delay in returning from his overseas trip was “caused by high blood pressure.”  There was an absence of evidence about treatment and stabilisation of this particular condition.

44. No assignment of points can be assigned at the time of cancellation for the obesity condition recorded by Dr Nuttall, because there is no evidence of treatment and, on the Applicant’s evidence to the Tribunal of his weight gain, that condition was not stabilised at that time.

    Conclusion

45. The Tribunal finds that the Applicant is assigned a total of 5 impairment points, under Table 4, at the date of cancellation. Section 94(1)(b) of the Act requires the assignment of 20 or more impairment points for a person to be qualified for DSP. The consequence is that the original decision that Mr Dujmovic was not qualified for DSP when it was cancelled was the correct decision.

    DECISION

46. The Tribunal affirms the decision under review.

I certify that the preceding 46 (forty -six) paragraphs are a true copy of the reasons for the decision herein of Mr D.J. Morris, Member

........................[SGD]................................................

Administrative Assistant

Dated: 30 March 2017

Date of hearing:	16 February 2017
Representative for the  Applicant:	Mr V Dangubic
Solicitors for the Applicant:	Frichot & Frichot
Representative for the  Respondent:	Ms S Sangha
Solicitors for the Respondent:	Mills Oakley Lawyers