Dusan Kezic and Secretary, Department of Social Services

[2015] AATA 313

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2014/5769

Re

Dusan Kezic

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal
Senior Member CR Walsh

Date 8 May 2015

Place Perth
The Tribunal affirms the decision under review.
........(Sgd) CR Walsh................................................................
Senior Member CR Walsh
CATCHWORDS
SOCIAL SECURITY – disability support pension (DSP) – applicant has “impairments” (being disc facet degeneration of the cervical spine, diabetes mellitus type 2, Crohn’s disease, a mental health condition (delusional disorder), left knee osteoarthritis, gastro oesophageal reflux disease, sleep apnoea, asthma and hyperferritinism) – applicant’s impairments did not attract 20 points or more under the Impairment Tables on the date he claimed DSP or within 13 weeks thereafter – applicant does not have a “continuing inability to work” - decision under review affirmed
LEGISLATION
Social Security Act 1991 – s 94(1)(a) – s 94(1)(b) – s 94(1)(c) – s 94(2)
Social Security (Administration) Act 1999 – Schedule 2 - clause 3 - clause 4(1)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 – s 3 - s 6(1) – s 6(2) – s 6(3) – s 6(4) – s 6(5) – s 6(6) – s 6(7) – s 8(1) – s 11(5) - Table 1 – Table 4 – Table 5 – Table 10
CASES
Nil
SECONDARY MATERIALS
Nil
REASONS FOR DECISION
Senior Member CR Walsh
8 May 2015
INTRODUCTION

Mr Kezic seeks review of a decision of the Social Security Appeals Tribunal (SSAT), dated 17 October 2014, which affirmed the decision of a Centrelink Authorised Review Officer (ARO), dated 2 August 2014, to reject Mr Kezic’s claim for disability support pension (DSP), dated 24 April 2014, on the basis that he did not satisfy all of the requirements for qualification for DSP in s 94(1) of the Social Security Act 1991 (SSA).[1]
[1] The ARO’s decision affirmed an earlier decision of a Centrelink officer, dated 18 June 2014.
Specifically, the SSAT decided that whilst Mr Kezic had “impairments” for the purposes of s 94(1)(a) of the SSA, being type 2 diabetes mellitus, Crohn’s disease, degenerative disease of the cervical spine, a mental health condition (delusional disorder), asthma, gastro oesophageal reflux disease (GORD) and arthritis in his left knee, his impairments did not attract 20 points or more under the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables), on the date Mr Kezic claimed DSP (being 24 April 2014) or within 13 weeks thereafter (being 24 July 2014), as required by s 94(1)(b) of the SSA and, therefore, he did not qualify for DSP.
FACTUAL AND PROCEDURAL BACKGROUND
On 24 April 2014, Mr Kezic lodged a claim for DSP (DSP Claim). In the DSP Claim, Mr Kezic listed his “disabilities, illnesses or injuries” as “Hernia” and referred to an attached medical report.
Attached to the DSP Claim was a DSP medical report from Dr Karim Jabar (General Practitioner), completed on 24 April 2014 (First Dr Jabar Medical Report).
The First Dr Jabar Medial Report lists Mr Kezic’s medical conditions as diabetes mellitus type 2, chronic neck pain, inflammatory bowel disease, chronic knee pain and depression. The First Dr Jabar Medical Report is considered in more detail below under the heading “Relevant medical evidence”.
On 30 May 2014, Mr Kezic attended a Job Capacity Assessment (JCA) conducted by a registered psychologist and a registered occupation therapist (JCA Assessors). The report produced by the JCA Assessors (JCA Report), is considered in more detail below under the heading “Relevant medical evidence”.
On 18 June 2014, a Centrelink officer decided to reject the DSP Claim on the basis that Mr Kezic did not have an impairment rating of at least 20 points under the Impairment Tables (Original Decision).
On 2 July 2014, Mr Kezic lodged a further DSP medical report from Dr Jabar, completed on 1 July 2014 (Second Dr Jabar Medical Report).
The Second Dr Jabar Medical Report listed Mr Kezic’s conditions as chronic neck and back pain, diabetes mellitus type 2, Crohn’s disease, elevated ferritin, asthma, hypertension, knee pain, shoulder pain, hernia surgery and GORD. The Second Dr Jabar Medical Report is considered in more detail below under the heading “Relevant medical evidence”.
On 17 July 2014, the Original Decision was sent to a Centrelink ARO for review at Mr Kezic’s request.
On 2 August 2014, an ARO affirmed the Original Decision (ARO Decision).
In the ARO Decision, the ARO:
· accepted that Mr Kezic’s chronic neck and back pain was a fully diagnosed, treated and stabilised condition and assigned it 5 points under Table 4 (Spinal Function) of the Impairment Tables.
· considered that Mr Kezic’s diabetes was not fully treated and stabilised such that no impairment rating could be assigned to this condition under the Impairment Tables;
· considered that there was insufficient information to assess Mr Kezic’s other conditions as fully diagnosed, treated and stabilised and, therefore, no impairment rating could be assigned to any of those conditions under the Impairment Tables; and
· decided that Mr Kezic did not have a “continuing inability to work” because he had not completed a “program of support”.
On 5 August 2014, Mr Kezic applied to the SSAT for a review of the ARO Decision.
In support of his application to the SSAT, Mr Kezic provided a further DSP medical report from Dr Brenden Connor, completed on 25 August 2014 (Dr Connor Medical Report).
The Dr Connor Medical Report listed Mr Kezic’s conditions as neck pain – disc facet degeneration foramenal stenosis C 5/6, knee osteoarthritis, delusional disorder, and NIDDM (noninsulin-dependent diabetes mellitus), Crohn’s colitis, hyperferritinism, sleep apnoea, reflux disease and back pain.
On 17 October 2014, the SSAT affirmed the ARO Decision (SSAT Decision).
In the SSAT Decision, the SSAT found that:
(i)Mr Kezic suffered from type 2 diabetes mellitus which was “permanent” and “fully diagnosed, treated and stabilised” and assigned this condition 5 points under Table 1 (Functions Requiring Physical Exertion and Stamina) of the Impairment Tables;
(ii)Mr Kezic suffered from Crohn’s disease which was “permanent” and “fully diagnosed, treated and stabilised” and assigned this condition 10 points under Table 10 (Digestive and Reproductive Function) of the Impairment Tables;
(iii)Mr Kezic suffered from degenerative disease of the cervical spine which was “permanent” and “fully diagnosed, treated and stabilised” and assigned this condition 5 points under Table 4 (Spinal Function) of the Impairment Tables;
(iv)Mr Kezic suffered from a delusional disorder that was “permanent” and “fully diagnosed” but not “fully treated” and “fully stabilised” and, therefore, this condition could not be assigned an impairment rating under the Impairment Tables (i.e. Table 5 (Mental Health Function)); and
(v)there was insufficient medical evidence to make findings in relation to Mr Kezic’s asthma, GORD or left knee arthritis.
The SSAT also found that Mr Kezic did not actively participate in a program of support in the three-year period immediately prior to lodging the DSP Claim and therefore did not have a “continuing inability to work” (as defined in s 94(2) of the SSA) for the purposes of s 94(1)(c) of the SSA.
On 5 November 2014, applied to this Tribunal for a review of the SSAT Decision.
ISSUES
The ultimate issue for consideration by the Tribunal is whether Mr Kezic was qualified for DSP in the “relevant period” for the purposes of s 94(1) of the SSA: refer to paragraphs 22 and 23 below.
This requires consideration of whether, in the “relevant period”:
(a)Mr Kezic has any physical, intellectual or psychological “impairments” (s 94(1)(a) of the SSA);
(b)if so, whether these impairments attract ratings of at least 20 points under the Impairment Tables (s 94(1)(b) of the SSA); and
(c)if so, whether Mr Kezic has a “continuing inability to work” as defined in s 94(2) of the SSA (s 94(1)(c) of the SSA).
ANALYSIS
Relevant period
The Social Security (Administration) Act 1999 (SSAA) provides that the “start-day” for a qualified DSP claimant is the date of claim: clause 3 of Schedule 2 of the SSAA. This means that qualification for DSP and impairment ratings must be determined as at the date of claim. The only exception is where the person is not qualified on the date of claim but “will … become qualified” and “becomes so qualified” within 13 weeks of lodging a claim, in which case the “start-day” is the day the person became qualified: clause 4(1) of Schedule 2 of the SSAA.
Consequently, the relevant period for consideration of Mr Kezic’s qualification for DSP is 24 April 2014 (being the date of the DPS Claim) to 24 July 2014 (being 13 weeks after the date of the DSP Claim) (Relevant Period).
Relevant Medical evidence
The following is a summary of the medical evidence that is relevant to this application as it relates to Mr Kezic’s medical conditions up to and including the Relevant Period: see paragraphs 22 and 23 above.
Letter from Lauren Brazier, Health Information Officer at Glengarry Private Hospital, dated 2 July 2014
Ms Brazier provided a range of medical records relating to Mr Kezic’s admission to Glengarry Private Hospital on 6 March 1998 for repair of a left inguinal hernia.
Letter from Renee Logan, Health Information Officer at St John of God Hospital , dated 1 July 2014
Ms Logan confirmed that Mr Kezic was admitted to Mercy Hospital (now St John of God Mt Lawley) on 27 July 1998 for repair of a recurrent left inguinal hernia and was discharged on 31 July 1998.
Laparoscopic surgery reports from Dr John Yovich (Consultant in Gynaecology, Andrology & Reproductive Endocrinology), dated 19 May 1999 and 16 June 1999
In his report of 19 May 1999, Dr Yovich stated that Mr Kezic was admitted for laparoscopic appraisal, and that:
quite an extensive laparoscopic adhesiolysis procedure was performed with good effect releasing all the bowel loops and leaving a clean peritoneal surface in the entire inguinal region.
Dr Yovich also recorded scarring of the right inguinal ring from a previous herniorrhaphy, and that he ligated Mr Kezic’s left testicular bundle “with a view to reducing arterial pressure into the congested left scrotum” with “an effective and neat result” being achieved.
In his report of 16 June 1999, Dr Yovich recorded that Mr Kezic had “recovered well from his laparoscopic surgery”. Dr Yovich recorded Mr Kezic’s wife’s description of “very severe depressive symptomatology in her husband and that this was not significantly improved with his previous treatment”, and noted that he had arranged for Mr Kezic to be evaluated and treated by Dr John Booth.
Dr Yovich also stated:
I am indeed expecting that Dusan’s entire physical symptomatology will now become normal but unfortunately, I cannot guarantee that as there are some aspects beyond my control or management, (particularly relating to the degree of tightness of the inguinal herniorrhaphy and perhaps some odd response to the underlying mesh). If there are persisting symptoms I would suggest referral to an andrologist/urologist.
Letters from Dr Paul W Skerritt (Psychiatrist), dated 18 January 2005 and 28 April 2005
In his letter dated 18 January 2005, Dr Skerritt stated that he reviewed Mr Kezic on 12 January 2005 for the first time since 22 July 2002. Dr Skerritt noted that Mr Kezic had been admitted to Graylands Hospital on two occasions in 2002 and that Mr Kezic had stopped taking antipsychotic medication in favour of “what he regards as optimum treatment” via antidepressant medication (paroxetine or Aropax).
Dr Skerritt stated that Mr Kezic’s irritability which led to his admissions was “consistent with the depressive illness which I described previously and [for which Mr Kezic] has been treated throughout”, and that “this depression is far from controlled on the antidepressant medication which [Mr Kezic] mentioned” (page 1).
Dr Skerritt also stated that Mr Kezic “continues to experience quite significant symptoms of anxiety and depression”, that these “stop him from working completely at the present time” and that “having been present since 1998, the likelihood of complete resolution of his symptoms and return to work is small” (page 2).
Dr Skerritt diagnosed Mr Kezic with major depressive disorder and panic disorder, and recommended putting Mr Kezic on a more powerful antidepressant, possibly in combination with other medication (page 2).
Dr Skerritt’s opinion regarding the likely impact of Mr Kezic’s psychiatric condition on his future working capacity was that Mr Kezic “will never work again” (page 3). Dr Skerritt also considered that “Mr Kezic’s present state stands against a score of 30” on the Psychiatric Impairment Tables then in force under the SSA (page 3).
In his 28 April 2005 letter, Dr Skerritt noted “a suggestion of a psychiatric diagnosis made by his general practitioner, Dr Terry, and a referral to Swan Clinic, which did not seem to have generated particular treatment”.
Dr Skerritt also recorded that his contact with Mr Kezic was limited to two related consultations on 15 July 2002 and 27 July 2003 and a follow up on 12 January 2005 (page 1).
Dr Skerritt further stated that a diagnosis of:
a disorder of personality is not supported by the information available to me. The most likely scenario would be that he has a potential for episodes of depression, which in his case, not too unusually, show themselves as violent but with typical confirmatory symptoms indicating the depressive origin of the episodes.
Discharge Summary from Graylands Hospital, dated 13 March 2009
The Discharge Summary, signed by Dr B Mathew (Consultant Psychiatrist) and dated 13 March 2009, records that Mr Kezic was discharged from Graylands Hospital on 5 March 2009 with a “Final Diagnosis” of “Delusional Disorder Enduring Personality Change”, with discharge medication of Risperidone, Imipramine, Mesalazine, Clotrimazole, Seretide, Tramadol and Hypromellose .
The Discharge Summary also records that Mr Kezic had previously been admitted three times with near identical presentations and diagnoses of delusional disorder and enduring personality change, and that Mr Kezic had “not been attending his follow-up appointments” and “not taken antipsychotic medication for a long time”.
The Discharge Summary notes Mr Kezic’s medical history, including diagnoses of perineal pain of unknown origin, inflammatory bowel disease and haemorrhoids, and sleep apnoea.
Report on cervical spine x-ray from Dr Heino Kaard, Sterling Radiology, dated 11 November 2010
An x-ray scan of Mr Kezic’s cervical spine was reported on by Dr Kaard as follows:
The sagittal images demonstrate narrowing of the discs from C3 through to C7 most marked at C5/6. Multi level fact arthropathy is present with degenerative changes at most levels more severe on the left at C3/4 and on the right at C2/3.
In his report, Dr Kaard also commented that the x-ray showed:
Multi level disc and facet joint degeneration. Forminal stenosis most severe at C5/6, C4/5 and on the left at C3/4.
Report from Dr Chris Rowling (Urologist), dated 17 May 2011
Dr Rowling reported that Mr Kezic was admitted to Osborne Park Hospital on 14 June 2011 for a procedure to repair his left hydrocele.
Report from Dr Sing Jack Yap (Neurology Registrar), dated 18 July 2012
Dr Yap reported that Mr Kezic had complained of pain on the plantar surface of his wrist in November 2011, and that he had complete recovery from symptoms of pain on the left plantar surface of his wrist and weakness in his finger and wrist extension after six or seven weeks.
Dr Yap stated that electromyography (EMG) performed on Mr Kezic on 7 May 2012 showed “normal neurophysiology of left redial nerves” and that there was “no neurophysiological evidence of left radial neuropathy nor a left C7/C8 radiculopathy”.
Dr Yap also noted that the EMG was performed when Mr Kezic’s symptoms were resolved, and that the symptoms were likely to have been radial nerve palsy which did not seem to have been from vasculitis, and which had completely resolved.
Various Pathology Results
A Pathology Result for Mr Kezic, dated 4 April 2013, notes Crohn’s disease and HBP (high blood pressure) and states:
Mildly elevated CRP [C-reactive protein] levels are a nonspecific marker of an underlying inflammatory condition. Active, severe infection would be unlikely at this value.
That Pathology Result also records ferritin levels of 624 ug/L, and states that “full iron studies are recommended to assess the significance of the raised ferritin”.
A Pathology Result for Mr Kezic, dated 16 May 2013, notes “NIDDM on Lipitor 40 mg Crohn’s disease HBP” and records Hb Alc(%) at 11.1 and HbAlc (mmol/mol) at 98, suggesting that the results indicate “poor glycaemic control”.
Reports from Dr Daya Durugiah (Radiologist), dated 21 October 2013 and 4 February 2014
In his report dated 21 October 2013, Dr Durugiah recorded that 36mls of straw coloured fluid was aspirated from the left knee joint followed by an injection of 2 mls of Kenacort A10 mixed with 2mls of 0.5% Bupivacain.
In his report dated 4 February 2014, Dr Durugiah reported “moderate osteoarthritic changes are seen in the patella-femoral joint, as well as the medial compartment of the knee joint. No loose bodies or obvious effusion is seen”.
In that same report, Dr Durugiah also recorded that 6mls of straw coloured fluid was aspirated from the left knee joint followed by an injection of 2 mls of Kenacort A10 mixed with 2mls of 0.5% Bupivacaine.
Letter from Dr Malcolm Webb (Clinical Haematologist) to Dr Karim Jabar (General Practitioner), dated 4 March 2014
Dr Webb diagnosed Mr Kezic as suffering from elevated ferritin, left lower quadrant abdominal pain, and depression.
First Dr Jabar Medical Report (dated 24 April 2014)
In the First Dr Jabar medical Report, Dr Jabar recorded Mr Kezic as having been his patient since 4 February 2014, and a patient of the practice since 10 February 2003.
Dr Jabar described Mr Kezic’s condition with the most impact as diabetes mellitus type 2. The diagnosis was said to be confirmed but was not supported by further specialist opinion and no date of onset was recorded. Current treatment was Diamicron 60mg SR, Nexium 40mg, Prednisolone and Irbesartan and future/planned treatment was to “continue monitoring and managing [Mr Kezic’s] diabetes mellitus’.
Dr Jabar described the impact on Mr Kezic’s ability to function as “some effect to energy level”. The impact of the condition was assessed as expected to persist for more than 24 months and the effect of the condition on Mr Kezic’s ability to function in the next 2 years was uncertain.
Dr Jabar recorded Mr Kezic’s second condition as chronic neck pain, and the diagnosis was said to be confirmed but not supported by further specialist opinion. The date of onset was 2011, and current treatment was analgesics.
Mr Kezic was not recorded as having been referred to a specialist in respect of this condition, and future/planned treatment was “continue analgesic, modified physical activities”.
The impact of the condition on function was described as “reduce ability to use physical power to handle physical job”. The impact was assessed as likely to persist for more than 24 months and the effect of the condition on Mr Kezic’s ability to function in the next 2 years was uncertain.
Dr Jabar recorded Mr Kezic’s other medical conditions causing minimal or limited impact as inflammatory bowel disease, chronic knee pain and depression.
Letter from Dr Jabar to Dr Webb, dated 21 May 2014
Dr Jabar referred Mr Kezic to Dr Webb for an opinion and management of his haematological condition of elevated ferritin. Dr Jabar referred to Mr Kezic’s medical history, including a condition of “psychosis”, dated 6 February 2009.
Second Dr Jabar Medical Report (dated 1 July 2014)

In the Second Dr Jabar Medical Report, Dr Jabar described Mr Kezic’s condition with the most impact as chronic neck and back pain. The diagnosis was said to be confirmed but was not supported by further specialist opinion (although Dr Jabar referred to an enclosed CT cervical spine report) and the date of onset was 2010. Current treatment was Zydol SR 150, and past treatment was analgesic. Dr Jabar indicated that Mr Kezic had been referred to a specialist (again referring to the attached CT report), and stated future/planned treatment as “to continue analgesic, modified physical activities”.
Dr Jabar described the impact on Mr Kezic’s ability to function as “affect ability to carry heavy object – not able to sit/stand for prolonged period of time”. The impact of the condition was assessed as expected to persist for more than 24 months and the effect of the condition on Mr Kezic’s ability to function in the next 2 years was uncertain.
Dr Jabar recorded Mr Kezic’s second condition as diabetes mellitus type 2, with a date of onset of 2011 and a date of diagnosis of 11 November 2011. Current treatment was Diamicron 60 mg SR, past treatment was diet control, and future/planned treatment was “continue monitor blood sugar and diabetes”. Dr Jabar described the impact on Mr Kezic’s ability to function as “low energy”. The impact of the condition was assessed as expected to persist for more than 24 months and the effect of the condition on Mr Kezic’s ability to function in the next 2 years was uncertain.
Dr Jabar recorded Mr Kezic’s other medical conditions causing minimal or limited impact as Crohn’s disease, knee pain, elevated ferritin, shoulder pain, asthma, hernia surgery, hypertension and GORD.
Letter from Dr Webb, dated 15 August 2014
In a letter dated 15 August 2014, Dr Webb states that Mr Kezic was initially referred to him because of markedly elevated ferritin of 1,190ug/L and that:
hyperferritinaemia was secondary to an acute inflammatory state and he was diagnosed with inflammatory colitis for which he takes Prednisolone and Sloafac. His ferritin has sometimes returned almost back into the normal range.
Dr Connor Medical Report (dated 25 August 2014)
The Dr Connor Medical Report (dated 25 August 2014) is outside the Relevant Period (refer to paragraphs 22 and 23 above) but does contain some evidence relating to Mr Kezic’s medical conditions up to and including the Relevant Period.
In the Dr Connor Medical Report, Dr Connor described Mr Kezic’s condition with the most impact as “neck pain – disk facet degeneration foramenal stenosis. C 5/6” and stated that the diagnosis was dated 2012 and confirmed by “neurologist Kevin O’Connor, Sing Yap”. Current treatment was Voltaren Mobil and Tramadol commenced in 2014, and previous treatment was Voltaren commenced in 2012. Dr Connor described the impact on Mr Kezic’s ability to function as “poor general functioning due to intractable pain – neck”. Dr Connor assessed the condition as likely to persist for more than 24 months and expected to deteriorate Mr Kezic’s ability to function over that time, and stated “chronic degeneration of cervical spine – chronic pain” by way of explanatory details.
Dr Connor recorded Mr Kezic’s second condition as knee osteoarthritis in his left knee, with a date of onset and diagnosis of 2013, and confirmation by x-ray. Current treatment was stated as Tramadol, past treatment was steroid injection on 4 February 2014, and planned/future treatment was “orthophedic review 2 yrs”. Dr Connor described the impact on Mr Kezic’s ability to function as “poor walking and standing endurance”. Dr Connor assessed the condition as likely to persist for more than 24 months and as expected to deteriorate Mr Kezic’s ability to function over that time.
Dr Connor record Mr Kezic’s third condition as delusional disorder, with a date of onset of 2009. The diagnosis was stated to be confirmed by a psychiatrist or clinical psychologist, and a relevant specialist report was stated to be attached. Current treatment was stated as “nil”, past treatment was “Respiridone” and future/planned treatment was “nil”. Clinical history was stated to be “Involuntary Inpatient 2009. Graylands. Poor Compliance and Insight”. Dr Connor described the impact on Mr Kezic’s ability to function as “poor ability to concentrate and relate interpersonally” and assessed the condition as likely to persist and remain unchanged over the next 2 years.
Dr Connor recorded Mr Kezic’s other medical conditions causing minimal or limited impact as NIDDM, Crohn’s colitis, hyperferritinism, sleep apnoea, reflux disease and back pain.
JCA Report (dated 18 June 2014)
In the JCA Report, the JCA Assessors considered that Mr Kezic had depression which was considered to be verified by medical evidence. The JCA Assessors recorded that Mr Kezic reported that his psychiatrist, Dr John Booth, treated him with antidepressant medication which proved effective, that he no longer has serious problems with depressed mood, and that he had discontinued treatment for financial reasons and had no plans to resume it.
The JCA Assessors also considered that Mr Kezic had lower limb deficiencies, gastroenterological condition and non-insulin dependent diabetes, all of which were verified by medical evidence. The lower limb deficiencies and non-insulin dependent diabetes were considered to be fully diagnosed.
The JCA Assessors considered that Mr Kezic had a neck disorder that was fully diagnosed, treated and stabilized and recommended that Mr Kezic’s neck disorder be assigned 5 points under Table 4 (Spinal Function) of the Impairment Tables. The functional impact of Mr Kezic’s neck disorder was described as follows:
Mr Kezic has some difficulties with overhead activities due to the shoulder pain arising from his spinal condition. He is able [to] turn his head to look up and sideways, and bend forward to knee level.
The JCA assessors also considered that Mr Kezic had a baseline work capacity of 8-14 hours per week in light semi-skilled work, and a capacity for work within 2 years with intervention of 15-22 hours per week in light semi-skilled work.
Qualification for DSP – s 94(1) of the SSA
The requirements for qualification for DSP are set out in s 94(1) of the SSA, as follows:
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; and
[Emphasis added]
(i)        Does Mr Kezic have “impairments” (s 94(1)(a) of the SSA)?
The term “impairment” is not defined in the SSA. However, s 3 of the Impairment Tables defines “impairment” to mean:
A loss of functional capacity affecting a person’s ability to work that results from the person’s condition.
It is clear from the “Relevant medical evidence” set out above (and it is not in dispute) that in the Relevant Period Mr Kezic suffered from “impairments” (being disc facet degeneration of the cervical spine, diabetes mellitus type 2, Crohn’s disease, a mental health condition (i.e. a delusional disorder), left knee osteoarthritis, GORD, sleep apnoea, asthma and hyperferritinism) and satisfied s 94(1)(a) of the SSA.
(ii) Do Mr Kezic’s impairments attract 20 points or more under the Impairment Tables (s 94(1)(b) of the SSA)?
What is in dispute, and what the Tribunal must consider, is whether in the Relevant Period Mr Kezic’s “impairments” attracted 20 points or more under the Impairment Tables, as required by s 94(1)(b) of the SSA.
If “yes”, the Tribunal must then consider whether Mr Kezic had a “continuing inability to work” within the meaning and for the purposes of s 94(1)(c) of the SSA.
An impairment rating can only be assigned a rating under the Impairment Tables in accordance with the provisions in the Impairment Determination, which contains the Impairment Tables and rules for applying the Impairment Tables when deciding if a person is qualified for DSP.
The Impairment Tables are “function” based rather than “diagnosis” based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impact of impairments and not to assess conditions.
A person’s level of impairment must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person: s 6(1) of the Impairment Tables.
The Impairment Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered: s 6(2) of the Impairment Tables.
An impairment rating can only be assigned to an impairment where:
(i) the condition causing the impairment is “permanent”; and
(ii)the impairment that results from the condition is likely to persist for 2 years or more: s 6(3) of the Impairment Tables.
A condition will be “permanent” if it:
(i) has been “fully diagnosed” by an “appropriately qualified medical practitioner”;
(ii) has been “fully treated” and “fully stabilised”; and
(iii)is more likely that not to persist for more than 2 years: s 6(4) of the Impairment Tables.
An “appropriately qualified medical practitioner” is a medical practitioner whose qualifications and practice are relevant to diagnosing a particular condition: s 3 of the Impairment Tables.
In determining whether a condition is “fully diagnosed” by an “appropriately qualified medical practitioner” and “fully treated”, the decision-maker should consider:
(i)whether there is corroborating evidence of the condition;
(ii)what treatment or rehabilitation has occurred in relation to the condition; and
(iii)whether treatment is continuing or is planned in the next 2 years: s 6(5) of the Impairment Tables.
A condition is “fully stabilised” if the person has either:
(i)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
(ii) not undertaken “reasonable treatment” for the condition; and
(a)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
(b)there is a medical or other compelling reason for the person not to undertake “reasonable treatment”: s 6(6) of the Impairment Tables.
The phrase “reasonable treatment” is defined as 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: s 6(7) of the Impairment Tables.
Symptoms reported by a person in relation to their condition can only be taken into account where there is corroborative evidence: s 8(1) of the Impairment Tables.
A diagnosed condition which results in no impairment should be assessed as having no functional impact and an impairment rating of zero must be assigned: s 11(5) of the Impairment Tables.
The relevant impairment rating to be assigned to each of Mr Kezic’s “impairments” under the Impairment Tables (if any) is considered, in turn, below.
(i) Disc facet degeneration of the cervical spine
It is not in dispute that Mr Kezic’s cervical spine condition was “permanent” and “fully diagnosed, treated and stabilised” in the Relevant Period.
Table 4 of the Impairment Tables, titled “Spinal Function”, is the table used where a person has a “permanent” condition resulting in functional impairment when performing activities involving spinal function. That is, bending or turning the back, trunk or neck.
Table 4 of the Impairment Tables provides that an impairment rating ranging from 0 to 30 should be assigned to an impairment involving spinal function, depending upon whether functional impact on activities involving spinal function is nil, mild, moderate, severe or extreme.
An impairment rating of 5 points applies under Table 4 where there is “mild” functional impact involving spinal function. This is the case where:
(1) The person has some difficulty in:
(a)activities over head height (e.g. activities requiring the person to look upwards); or
(b)bending to knee level and straightening up again without difficult; or
(c)turning their trunk or moving their head (e.g. to look to the sides or upwards).
An impairment rating of 10 points applies under Table 4 where there is “moderate” functional impact involving spinal function. This is the case where:
(1) The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies
(a)the person is unable to sustain overhead activities (e.g. accessing items over head height); or
(b)the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or
(c)the person is unable to bend forward to pick up a light object placed at knee height; or
(d)the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair)
The Tribunal considers that the appropriate impairment rating for Mr Kezic’s cervical spine condition under Table 4 of the Impairment Tables is 5 points as, in Mr Kezic’s case, there is “mild” functional impact involving spinal function. That is, Mr Kezic has some difficulty with overhead activities, as recorded in the JCA Report: refer to paragraph 75 above.
Whilst there is other medical evidence before the Tribunal in relation to Mr Kezic’s cervical spine condition it provides limited guidance on the “functional impact” of this condition on Mr Kezic in the Relevant Period.
Based on the “Relevant medical evidence”, the Tribunal considers that Mr Kezic does not meet the criteria listed for a rating of 10 points under Table 4 of the Impairment Tables (i.e. “moderate” functional impact), as set out in paragraph 99 above.
(ii) Diabetes Mellitus type 2
It is not in dispute that Mr Kezic’s diabetes mellitus type 2 was “permanent” and “fully diagnosed, treated and stabilised” in the Relevant Period.
Table 1 of the Impairment Tables, titled “Functions requiring Physical Exertion and Stamina”, is the table used where a person has a “permanent” condition resulting in functional impairment when performing activities requiring physical exertion or stamina.
Table 1 of the Impairment Tables provides that an impairment rating ranging from 0 to 30 should be assigned to an impairment requiring physical exertion or stamina, depending upon whether functional impact on activities requiring physical exertion or stamina is nil, mild, moderate, severe or extreme.
An impairment rating of 5 points applies under Table 1 where there is “mild” functional impact on activities requiring physical exertion or stamina. This is the case where:
(1) The person:
(a)experiences occasional symptoms (e.g. mild shortness of breath, fatigue, cardiac pain) when performing physically demanding activities and, due to these symptoms, the persons has occasional difficulty:
(i)walking (or mobilising in a wheelchair) to local facilities (e.g. a corner shop or around a shopping mall, larger workplace or education or training campus), without stopping to rest; or
(ii)performing physically active tasks (e.g. climbing a flight of stairs or mobilising up a long, sloping pathway or ramp if in a wheelchair) or heavier household activities (e.g. vacuuming floors or mowing the lawn); and
(b)is able to perform most work-related tasks, other than tasks involving heavy manual labour (e.g. digging, carrying or mobbing heavy objects, concerting, bricklaying, laying pavers).
The Tribunal considers that the appropriate impairment rating for Mr Kezic’s diabetes type 2 mellitus under Table 1 of the Impairment Tables is 5 points. In reaching this conclusion, the Tribunal notes the following evidence:
·    The First Dr Jabar Medical Report in which Dr Jabar stated that Mr Kezic was on a range of medications including Predisolone and that the diabetes affected Mr Kezic’s energy levels: refer to paragraphs 56 and 57 above;
·    the JCA Report in which the JCA Assessors recorded that Mr Kezic was diagnosed three years ago, that he takes a number of medications for his diabetes, that he had not adjusted his diet or engaged in any other management strategies, that he is able to cook and wash dishes but findings heavier jobs taxing, and that he finds heavier jobs – mowing a lawn, for instance – too taxing;
·    the Second Dr Jabar Medical Report in which Dr Jabar states that Mr Kezic’s past treatment was “diet controlled”, planned/future treatment was to monitor blood sugar and diabetes, the diabetes resulted in Mr Kezic having low energy, and that in the next 2 years the effect on the Mr Kezic’s ability to function was uncertain. Dr Jabar also stated that Mr Kezic was on a range of medication including Predisolone: refer to paragraph 65 above; and
·    Mr Kezic’s evidence before the SSAT that his Prednisolone made his sugars hard to control.
Whilst the “Relevant medical evidence” indicates that Mr Kezic has difficulty performing heavier household activities such as mowing the lawn and is able to perform most work-related tasks, other than tasks involving heavy manual labour, it does not establish that Mr Kezic experiences “frequent” (as opposed to “occasional”) shortness of breath, fatigue or cardiac pain when performing day to day activities such that his diabetes should be assigned a 10 point (or “moderate” functional impact) rating under Table 1 of the Impairment Tables.
(ii) Crohn’s disease
It is not in dispute that Mr Kezic’s Crohn’s disease was “permanent” and “fully diagnosed, treated and stabilised” in the Relevant Period.
Table 10 of the Impairment Tables, titled “Digestive and Reproductive Function”, is the Table to be used where a person has a “permanent” condition resulting in functional impairment related to digestive or reproductive system functions.
Table 10 of the Impairment Tables provides that an impairment rating ranging from 0 to 30 should be assigned to an impairment involving digestive or reproductive function, depending upon whether functional impact on work-related or daily activities due to symptoms or personal care needs associated with a digestive or reproductive system condition is nil, mild, moderate, severe or extreme.
An impairment rating of 0 points applies under Table 10 where there is “no” functional impact on work-related or daily activities due to symptoms or personal care needs associated with a digestive or reproductive system. This is the case where:
(1) The person is not usually interrupted at work or other activity by symptoms or personal care needs associated with a digestive or reproductive system condition.
The Tribunal considers that there is insufficient evidence that Mr Kezic’s Crohn’s disease caused any functional impact on his “work related or daily activities” in the Relevant Period such that an impairment rating of 0 points applies to Mr Kezic’s Crohn’s disease under Table 10 of the Impairment Tables. In reaching this conclusion, the Tribunal notes the following evidence:
·    In the First Dr Jabar Medical Report, Dr Jabar which lists “inflammatory bowel disease” as a condition that is generally well managed and that causes minimal or limited impact on Mr Kezic’s ability to function: refer to paragraph 61 above;
·    In the JCA Report, the JCA Assessors state hat Mr Kezic’s gastroenterological condition causes symptoms that flare up on occasion, that Mr Kezic has been treated by a specialist for a number of years, that in January 2014 Mr Kezic ceased taking his medication prescribed by his specialist, and that he continues to take anti-inflammatories;
·    In the Second Dr Jabar Medical Report, Dr Jabar lists Crohn’s disease and hernia surgery as conditions that are generally well managed and that cause minimal or limited impact on Mr Kezic’s ability to function: refer to paragraph 66 above;
·    Dr Webb’s letter of 15 August 2014, Dr Webb states that Mr Kezic was diagnosed with inflammatory colitis for which he takes Prednisolone and Solafac but does not indicate the functional impact of the condition. In any event, Dr Webb’s report is outside the Relevant Period: refer to paragraph 67 above;
·    In the Dr Connor Medical Report, Dr Connor lists Crohn’s colitis as a condition that is generally well managed and that causes minimal or limited impact on Mr Kezic’s ability to function: refer to paragraph 72 above;.
· In the SSAT Decision, the SSAT refers (at [42]) to Mr Kezic’s oral evidence given on 17 October 2014 that the inflammatory colitis caused severe bowel problems when he suffered attacks, and that on bad days he could do nothing other than lie around. However, it is unclear whether Mr Kezic was referring to symptoms that he had experienced up to and including the Relevant Period; and
·    The reports from Mr Kezic’s treating doctor’s consistently state that Mr Kezic’s Crohn’s disease is well managed and that cause minimal or limited impact on Mr Kezic’s ability to function.
(iii)     Mental health condition (delusional disorder)

Based on the “Relevant medical evidence”, the Tribunal considers that Mr Kezic’s mental health condition cannot be assigned an impairment rating under Table 5 of the Impairment Tables, titled “Mental health Function”, as it was not “fully diagnosed, treated and stabilised” in the Relevant Period. In reaching this conclusion, the Tribunal notes the following evidence:
·    Dr Skerritt’s two letters, dated in 2005, are of little assistance in assessing Mr Kezic’s mental health condition as they precede the Relevant Period by approximately 9 years: refer to paragraphs 31 to 38 above;
·    Dr Mathew (Consultant Psychiatrist, Graylands Hospital) diagnosed Mr Kezic with delusional disorder and enduring personality change in the Discharge Summary of 13 March 2009 and further noted that Mr Kezic had not been attending his follow up appointments and not taken antipsychotic medication for a long time: refer to paragraphs 39 and 40 above;
·    In the JCA Report, the JCA Assessors noted that Mr Kezic reported to them that he no longer has serious problems with depressed mood, that he has received effective treatment via antidepressant medication in the past, and that he discontinued this medication for financial reasons and does not plan to resume it: refer to paragraph 73 above;
· Mr Kezic told the JCA Assessors that antidepressant medication prescribed by Dr John Booth was effective, but that he ceased this medication for financial reasons. This is not sufficient to establish that further medication is not “reasonable treatment” as determined in accordance with s 6(7) of the Impairment Tables: refer to paragraph 91 above;
·    In the Dr Connor Medical Report, Dr Connor diagnosed Mr Kezic with delusional disorder (date of onset 2009), listed past treatment as Respiridone for several months in 2009, listed future/planned treatment as ‘nil’, described the impact on function as “poor ability to concentrate and relate interpersonally” and stated that Mr Kezic’s ability to function within the next 2 years as a result of this condition is expected to remain unchanged: refer to paragraph 71 above;
·    Mr Kezic has not been assessed or treated by a psychiatrist since 2009 and whilst Dr Connor stated, in the Dr Connor Medical Report, that Mr Kezic’s mental health condition results in a poor ability to concentrate, a poor ability to relate interpersonally and a propensity to suffer violent depressive episodes, he also notes that he, nor any other doctor from the practice has referred Mr Kezic for specialist medical treatment; and
·    there is no evidence that Mr Kezic has engaged in therapy treatment for his mental health since 2009.
(iv)     Left knee osteoarthritis
The Tribunal considers that there is insufficient relevant medical evidence to establish that Mr Kezic’s left knee osteoarthritis was “fully treated” and “fully stabilised” in the Relevant Period.
Consequently, an impairment rating cannot be assigned to Mr Kezic’s left knee osteoarthritis under Table 3 of the Impairment Tables, titled “Lower Limb Function”. In reaching this conclusion, the Tribunal notes the SSAT’s reference (SSAT Decision at [61]) to Mr Kezic stating, at his hearing before the SSAT on 17 October 2014, that he is “waiting to see a specialist to determine if surgery was indicated”.
(v) Other medical conditions
There is insufficient medical evidence establishing that Mr Kezic’s other medical conditions (namely, GORD, sleep apnoea, asthma, or hyperferritism) are “permanent” (i.e. fully diagnosed, treated and stabilised), or that they cause Mr Kezic any functional impairment.
Consequently, no impairment rating can be assigned to any of Mr Kezic’s other medical conditions under the Impairment Tables.
Conclusion - Mr Kezic’s total impairment rating
In conclusion, the Tribunal finds that Mr Kezic’s “impairments” attract a total of 10 points under the Impairment Tables in the Relevant Period, as follows:
(i)Disc facet degeneration of the cervical spine – 5 points (i.e. “mild” functional impact under Table 4);
(ii)Diabetes Mellitus type 2 – 5 points (i.e. “mild” functional impact under Table 1);
(iii)Crohn’s disease – 0 points (insufficient evidence of functional impairment);
(iv)Mental health condition – 0 points (not fully diagnosed, treated and stabilised);
(v)Knee osteoarthritis – 0 points (not fully treated and stabilised); and
(vi) GORD, sleep apnoea, asthma, and hyperferritism – 0 points (insufficient evidence of functional impairment).
Consequently, the Tribunal finds that Kezic did not satisfy s 94(1)(b) of the SSA in the Relevant Period.
(iii) Does Mr Kezic have a continuing inability to work (s 94(1)(c) of the SSA)?
Since the Tribunal considers that Mr Kezic’s “impairments” do not attract ratings of at least 20 points under the Impairment Tables, it is unnecessary for it to consider whether Mr Kezic has a “continuing inability to work” for the purposes of s 94(1)(c) of the SSA.
However, for completeness the Tribunal makes the following brief observations in relation to this issue.
To have a “continuing inability to work” as defined in s 94(2) of the SSA and for the purposes of s 94(1)(c) of the SSA, Mr Kezic would need to:
(i)have a “severe impairment” (being an impairment that attracts an impairment rating of at least 20 points on a single Table) or have “actively participated” in a         “program of support”;
(ii)be unable to work for a minimum of 15 hours per week in work that is at or      above the relevant minimum wage; and
(iii)be unable, because of his impairment, to participate in a training activity in the     next 2 years or, if he is able to participate in a training activity, such training      activity would not, because of his impairment, allow him to work independently of a program of support in the next 2 years.
In short, it is clear from the evidence that Mr Kezic does not have a “continuing inability to work” for the purposes of s 94(1)(c) of the SSA because he has not “actively participated” in a “program of support”, he is not unable to work 15 hours per week with the assistance of a program of support within the next 2 years and he is not prevented, because of his “impairments”, from participating in a training activity.
DECISION
For the above reasons, the Tribunal affirms the SSAT Decision.

I certify that the preceding 125 (one hundred and twenty five) paragraphs are a true copy of the reasons for the decision herein of Senior Member CR Walsh
......(Sgd) A Tran ..................................................................
Associate
Dated 8 May 2015

Date of hearing 17 April 2015

Applicant In person

Representative for the Respondent Mr D Carroll

Solicitors for the Respondent Australian Government Solicitor

[2015] AATA 313

8 May 2015

Key Legal Topics

Areas of Law

Social Security Law

Legal Concepts

Social Security - Disability Support Pension

Impairment Ratings

Continuing Inability to Work

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2014/5769
Re	Dusan Kezic
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

Tribunal	Senior Member CR Walsh
Date	8 May 2015
Place	Perth

Date of hearing	17 April 2015
Applicant	In person
Representative for the Respondent	Mr D Carroll
Solicitors for the Respondent	Australian Government Solicitor