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

Govedarica and Secretary, Department of Social Services (Social services second review) [2019] AATA 4793 (19 November 2019)
Division:GENERAL DIVISION
File Number: 2018/6953
Re:Mr Branko Govedarica
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Ms Anna Burke AO Member
Date:19 November 2019
Place:Melbourne

The Tribunal sets aside the decision under review and in substitution determines that Mr Govedarica satisfies all the requirements of section 94 of the Social Security Act 1991 and is thereby qualified for the Disability Support Pension as at the date of his claim.
...........[sgd].................................
Ms Anna Burke AO Member
Catchwords
SOCIAL SECURITY – application for disability support pension – whether qualified – spinal condition; mental health condition and right hand condition (finger amputation) -whether impairment attracts rating of 20 points or more under Impairment Tables – whether program of support had been undertaken – decision under review set aside
Legislation
Administrative Appeals Tribunal Act 1975
Social Security (Administration) Act 1999
Social Security (Active Participation for Disability Support Pension) Determination 2014
Social Security (Administration) Act 1999
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Social Security Act 1991
Secondary Materials
Social Security Guide
REASONS FOR DECISION
Ms Anna Burke AO Member
19 November 2019
INTRODUCTION

Mr Govedarica (the Applicant) is seeking a second tier review of the decision made by the Secretary, Department of Social Services (the Respondent) to refuse to grant the Applicant a Disability Support Pension (DSP) pursuant to section 94 of the Social Security Act 1991 (the Act).
On 15 September 2017 Centrelink found that Mr Govedarica was not entitled to the DSP as he did not meet the requirements of the Act. Centrelink is the service provider for the Department of Human Services.
The application was heard on 4 October 2019. Mr Govedarica was self-represented and Ms Kellie Latta, of Sparke Helmore Lawyers, appeared for the Respondent. The Tribunal was assisted by an interpreter in the Serbian language. The Applicant gave evidence under affirmation and was cross-examined by Ms Latta. Dr Chris Minogue, medical advisor, of the Health Professional Advisory Unit (HPAU) gave evidence by telephone.
THE ISSUES IN CONTENTION
The issues in contention are whether Mr Govedarica:
(a)has a physical, intellectual or psychiatric impairment;
(b)has a condition which has been fully diagnosed, treated and stabilised and is likely to continue for at least two years;
(c)has a fully diagnosed, treated and stabilised condition or conditions which attract 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables); and
(d)has a continuing inability to work.
BACKGROUND
Mr Govedarica is a 62 year old Bosnian National who migrated to Australia in 1998. He is married, has three adult children and is a welder by trade, having worked as a welder/gas plumber before arriving in Australia as a refugee. In Australia he worked in various process roles until 2002 when his right hand was crushed in a machine press and four fingers were amputated. He spent a considerable period of time on workers compensation before returning to the workforce as a driver. In this role he predominantly drove concrete trucks until 2010, when he sustained a back injury in a motor vehicle accident on his way to work. He has not worked since that time. Mr Govedarica has limited English skills and has made several DSP claims.
On 18 April 2017 Mr Govedarica made an application for DSP, citing his medical conditions as “back injury – lower back”.
On 8 June 2017 Centrelink conducted a Job Capacity Assessment (JCA) on Mr Govedarica. The JCA awarded him nil points and assessed his baseline work capacity at 15 to 22 hours per week. The JCA found the following:
Spinal disorder: Condition is assessed as not fully treated and stabilised, as client is yet to access optimal treatment as recommended by the neurosurgeon (ie Pain Specialist), which could improve client’s clinical and functional outcome within the next 2 years. The client stated that he has the referral and is yet to have an appointment or commence any pain management treatment.
Depression: This condition is not considered fully treated and stabilised as further counselling/psychotherapy may improve the condition and thereby improve functional capacity.
Amputation/below elbow: as the condition occurred in 2002, over the past 14 years the client has developed strategies/adaptive techniques to perform most activities of daily living.
A higher rating of 5 was not assigned as, whilst the client reported he is unable to perform fine motor tasks such as laces and buttons, he reported no difficulties with larger tasks which use his whole hand and arm. Additionally, he has full use of the left hand.
In an internal review on 24 July 2018, a departmental Authorised Review Officer (ARO) affirmed the earlier Centrelink finding. The ARO awarded a total impairment rating of nil points, stating the following
Your doctor said you had an amputation of the 2^nd and 4^th fingers on your right hand due to a work related injury in 2002. You had 4 rounds of surgery. You are not having any further treatment for this condition. You told the Job Capacity Assessor your symptoms include loss of right hand function and pain radiating from your fingers up the right arm. You said that you can hold a pen, do up buttons/shoelaces and can lift more than a 1 litre carton of milk. You said that you have difficulties opening a jar/unscrewing a lid and with very small objects such as coins. You said you have no difficulty reaching up or out to pick up objects. You said that you can use a mobile phone and turn a page with the use of your left hand.
I have therefore decided that your amputation of right hand fingers is a permanent condition and can be given a rating of 0 points under Table 2 (Upper Limb Function).
I have found that your conditions of adjustment disorder with depression/post traumatic stress and anxiety and chronic lumbar spine pain cannot be considered permanent for the purposes of assessing your eligibility for Disability Support Pension.
Your doctor previously referred you to a pain specialist/pain management program however you never attended.
I have decided that as your condition has not been optimally treated and subsequently stabilised your ongoing functional impairment cannot be determined. As a result an impairment rating cannot be assigned.
Your doctor said that you may benefit from consistent and ongoing psychotherapy to assist with improving and stabilising your conditions.
I have decided that as your condition has not been optimally treated and subsequently stabilised your ongoing functional impairment cannot be determined. As a result an impairment rating cannot be assigned.
I accept that the types of work appropriate to you may be more limited due to your conditions. However, based on the Job Capacity Assessment, I consider that you have the capacity to undertake light less skilled work of at least 15 hours per week in the next two years. Your medical condition would also not prevent you from undertaking a training activity to prepare you for alternative work within two years.
I have found that you do not meet the program of support requirements as at the time of your claim you had not completed 18 months in the 36 months in a program of support immediately prior to your claim.
On 19 October 2018, the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT Tier 1) affirmed the decision of the ARO to reject Mr Govedarica’s DSP claim. The AAT Tier 1 awarded Mr Govedarica an impairment rating of five points, finding:
·Chronic lumbar spine pain was fully diagnosed, treated and stabilised during the qualifying period. An impairment rating of five points on table 4 was considered – spinal function was appropriate because he had some difficulty with overhead activities, is unable to bend to knee level and straighten up without difficulty.
·Anxiety and depression was fully diagnosed, treated and stabilised during the qualifying period as he was taking medication and having monthly consultations with his psychiatrist. However, the AAT Tier 1 concluded his depression/anxiety had no functional impact on his mental health function and as such nil impairment points were awarded for this condition.
·His conditions of right finger amputations were not causing any functional impact and nil impairment points were awarded for this condition.
·The AAT Tier 1 did not address the issue of whether Mr Govedarica had a continuing inability to work as he did not have the requisite 20 impairment points.
On 2 August 2019 Dr Chris Minogue, medical advisor to the HPAU, provided a report in respect of Mr Govedarica current DSP claim. He provided the following synopsis of his opinion:
In my opinion the available medical evidence supports an assessment that Mr Govedarica’s right hand, lumber spine and mental health conditions were reasonably deemable fully diagnosed, treated and stabilised during the subject DSP qualification period between mid-April and mid-July 2017. Impairment ratings of 5 points under each of Tables 3, 4 and 5 are recommended for a total of 15 points. In addition it is considered that a continuing inability to work (CITW), as defined, was not clearly established at the time.
On 27 November 2018, Mr Govedarica sought a review of the AAT Tier 1 decision by this division of the Tribunal, stating in his application:
I think the final decision is wrong and a different decision should be made. I greatly appreciate you taking time to read this and the attached documents. I am happy to meet you anytime to discuss this further.
In accordance with Schedule 2, Section 4(1) of the Social Security (Administration) Act 1999 (the Administration Act), Mr Govedarica’s qualification for the DSP is to be determined from the date of his claim to a date 13 weeks thereafter, that being 18 July 2017 (the qualifying period).
Relevant Legislation and Issues
Section 94(1) of the Act provides that a person is qualified for a DSP if:
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;
…
The Impairment Tables require that an impairment rating can only be assigned if the condition causing that impairment is “permanent”.[1]
[1] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011; section 6(3)(a).
Section 6(4) of the Impairment Tables states that a condition is “permanent” if:
the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)the condition has been fully treated; and
(c)the condition has been fully stabilised; and
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
The introduction to each relevant Impairment Table requires that “self-report of symptoms alone is insufficient” and that “there must be corroborating evidence of the person’s impairment”.
Section 6(5) of the Impairment Tables states:
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
Section 6(6) of the Impairment Tables states:
For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
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.
For the purposes of section 6(6), reasonable treatment is treatment that:
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 determinative issue in this review is whether, during the qualifying period, Mr Govedarica suffered an impairment of 20 points or more under the Impairment Tables; and, if so, whether he had a continuing inability to work.
The Impairment Tables are function-based rather than diagnosis-based. They 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) of the Impairment Tables).
Section 6(1) of the Impairment Tables sets out that a person’s impairment must be assessed on the basis of what a person can, or could do when assessing functional capacity. It is not to be assessed on the basis of what a person chooses to do or what others can do for the person.
Section 6(8) of the Impairment Tables further provides 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 from the condition may not result in any functional impact.
It is necessary, therefore, to consider the Applicant’s medical conditions with reference to the applicable Impairment Tables.
Part 2 of the Social Security (Active Participation for Disability Support Pension) Determination 2014 (POS Determination) sets out a number of exemptions to the general requirements and that a person must participate in a program of support (POS) for at least 18 months in cases where a person does not have a severe impairment.
Part 2—Requirements for active participation
7 Requirements for active participation
(4) This subsection is satisfied in relation to a person and a program of support if:
(a) the program of support was terminated before the end of the relevant period; and
(b) the program of support was terminated because the person was unable, solely because of his or her impairment, to improve his or her capacity to prepare for, find or maintain work through continued participation in the program.
(5) This subsection is satisfied in relation to a person and a program of support if:
(a) at the end of the relevant period, the person is participating in the program of support; and
(b) the person is prevented, solely because of his or her impairment, from improving his or her capacity to prepare for, find or maintain work through continued participation in the program.
THE TRIBUNAL’S CONSIDERATION AND FINDINGS
Evidence before the Tribunal
The evidence before the Tribunal included documents provided under section 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act), referred to as the “T documents”, supplementary T documents, and additional medical reports which were provided by Mr Govedarica.
DOES MR GOVEDARICA HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT?
Section 94(1)(a) of the Act provides that to qualify for DSP in the first instance a person must suffer from an impairment.
The Respondent accepts that Mr Govedarica is suffering from a spinal condition, mental health condition and right hand condition (finger amputation). The Tribunal finds that Mr Govedarica was suffering from impairments during the qualifying period and therefore meets the requirements of section 94(1)(a) of the Act.
As noted above, section 94(1)(b) of the Act states that the second requirement to qualify for DSP is that the person’s impairments rate 20 points or more under the Impairment Tables.
DOES MR GOVEDARICA HAVE MEDICAL CONDITIONS THAT CAN BE RATED AT 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES?
Spinal Condition
Dr Jane Mitchell, radiologist, reported on an MRI lumbosacral spine performed on Mr Govedarica on 11 October 2010 concluding:
Moderate disc bulges at L3/4 and L4/5, with disc and facet joint degenerative change. No marrow oedema or changes to suggest ligamentous injury.
Mr Brian Barrett, orthopaedic surgeon, in a report of 25 November 2010 opined:
In summary this man appears to have disc lesions at the L3-4 and L4-5 lumbar levels and I carefully explained to him the nature of these disc lesions and the way in which his symptoms are produced. I further explained that these disc injuries have minimal capacity to heal or repair and he must continue to rest, avoid all bending, lifting, pushing activities and allow his symptoms to improve over the subsequent few months.
I explained that these injuries take time to settle, he must avoid vigorous physiotherapy and other vigorous exercises, particularly avoiding bending, lifting and pushing.
Mr Brian Barrett, in a report of 3 February 2012, opined:
Both L3-4 and L4-5 discs are desiccated with modest posterior disc bulges seen at each of these levels, close to the passing cauda equina nerve roots. In addition there is some closure of the intervertebral foramina at these levels bilaterally, slightly more than at the earlier MRI.
Your patient has 2 serious mid lumbar disc disruptions, his pain is genuine and is consistent with the clinical and radiological investigations.
Apparently the question of operative treatment has been raised, which would need to be a 2 level decompression and fusion procedure – nothing short of this would offer him much relief.
We discussed the question of operation and that is clearly a choice for the patient to make, considering his ongoing pain which is unlikely to improve, balanced against the risk of the operative procedure, which in my opinion would offer him a reasonable chance of some relief, although not a cure that will allow him to get back to work again.
Ms Silvana Rizk, physiotherapist, in a report to Mr Govedarica’s general practitioner of 10 August 2017 opined:
Branko reported that he has constant pain in his low back region which is radiating distally down his legs. He complains of neurological symptoms such as numbness, pins and needles as well as weakness in the extremities. He reported that this ongoing pain has affected his quality of life, which in turn has affected his psychology. He also reports pain in the left shoulder region, where he had a recent cortisone injection.
On assessment, Branko has muscle spasm in his lumbar spine, stiffness in the thoracic and lumbar region, poor scapular stabilisers, kyphotic type of posture, poor core activation, altered sensation and temperature in bilateral legs and weakness in general.
I have advised him to continue with heat therapy as he finds it effective in managing his pain. All of these exercises and interventions are in situ to help Branko in managing his pain, rather than completely curing it as it is not likely to be completely pain free, which is a common nature for chronic pain.
Currently Branko is just getting by with his activities of daily living (ADLs). He struggles to participate in his ADLs and being slow frustrates him at times. Ongoing physiotherapy would also benefit him to manage such a challenging chronic condition.

Dr V. I. Karlov, consultant physician, in a report for Mr Govedarica’s general practitioner dated 28 August 2017 opined:
..CT scan of his lumbar spine. This showed a mild to moderate disc bulge at L3/4, mild to moderate compression of anterior theca, there are short pedicles and prominent degenerative facet joints and there is moderate canal stenosis.
There is also moderate canal stenosis at the L4/5 level with some thecal compression. There are also further facet joint degenerative changes there and there is a disc bulge at the L5/S1 level in contact with the S1 nerve root.
Thus he has significant amount of spinal pathology both congenital and acquired. He has narrowed pedicles so a small canal with a relatively small disc bulge having the potential to produce significant pathology.
The canal stenosis makes it difficult for him to walk leading to spinal claudication and the disc lesions prevent him from lifting or repetitive spinal movements. I think he could try some physio but the lesions are too extensive to expect a good result. They are also too extensive for surgery and therefore all he can do is take Analgesics which really isn’t curing the condition.
Dr Jim Ristevski, general practitioner, in reports to these proceedings of 28 September 2017 and 29 March 2019, opined:
Chronic pain associated with lumbar spine, fully assessed and treated. Disability in associated physical function exceeds 20 per cent.
Mr Govedarica indicated to the Tribunal his frustration with the entire process and that his physical conditions were the result of serious injuries; one where his hand was crushed at work and the second from a car accident. He could not understand why he did not qualify for a pension when the Transport Accident Commission had indicated his injury from the car accident was serious, resulting in 30% impairment. He stated that he had been told for 10 years that he was eligible for a pension but he was still waiting. He stated he could not understand why the system does not take into account the opinion of his long-term treating doctors who all support his claim and he questioned the independence of the Tribunal.
Mr Govedarica indicated to the Tribunal that on some days he can do things such as sit, walk and drive but on other days he was unable to perform tasks or leave the house because of pain or his depression. He relies upon his wife and children to perform all of his daily living tasks and stated that he is in constant pain and on heavy medication.
The Tribunal explored the functional impact of Mr Govedarica’s impairment under Table 4 of the Impairment Tables because Mr Govedarica’s accepted condition primarily impacts on his spine. In particular, the Tribunal explored his capacity in respect of a moderate functional impact. Table 4 states:
Table 4 – Spinal Function – 10 points
There is a moderate functional impact on activities involving spinal function.
1The 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).
Mr Govedarica advised the Tribunal that:
·on some days, he could sit in a car and drive for 30 minutes but on other days he couldn’t at all. It depended on how much pain he was experiencing;
·he often drove to swimming about seven kilometres from his house, but other times he needed other people to take him places;
·moving was important and swimming was the best exercise;
·some days the pain was so great he couldn’t even go to the toilet;
·he was sometimes able and sometimes unable to perform overhead activities;
·he could move his head to look in all directions;
·on some days he would be able to bend to pick up a light object placed at knee height, but on others he would not be able;
·he relied heavily on his children to assist with all his daily living activities; and
·he did not need assistance to get out of a chair.
The Respondent accepted that Mr Govedarica’s spinal condition was fully diagnosed, treated and stabilised during the qualifying period and that a maximum five impairment points could be awarded to this condition under Table 4 - Spinal Function. The Respondent concurred with the HPAU assessment that surgery or pain management therapy would not improve Mr Govedarica’s functionality.
The Respondent did not accept Dr Ristevski’s assessment that Mr Govedarica’s lumbar spine condition causing chronic pain was having a severe functional impairment on activities involving the spine. They argued that Dr Ristevski’s report did not corroborate that Mr Govedarica was unable to sustain overhead activities, had difficulty moving his head to look in all directions, was unable to bend forward to pick up a light object placed at knee height and needed assistance to get out of a chair.
Dr Minogue, medical advisor for the HPAU, advised the Tribunal that he did not rely upon Dr Ristevski’s assessment of Mr Govedarica as Dr Ristevski was unfamiliar with the operation of the Impairment Tables. Dr Minogue preferred the assessment of the JCA which noted Mr Govedarica reported difficulties with bending to knee level but could bend to table level with no difficulties. It also noted that his sitting and driving tolerance were between 20 to 30 minutes and 10 to 15 minutes respectively, that he was observed to sit for the entirety of the assessment 45 minutes and that he routinely swims two to three times per week which suggested he had adequate neck extension without troublesome pain or discomfort.
Having considered all the evidence before it and relying on the evidence of Mr Brian Barrett and Dr V. I. Karlov, the Tribunal is satisfied that Mr Govedarica’s spinal condition was fully diagnosed, treated and stabilised during the qualifying period.
Additionally, the Tribunal was informed by the medical reports of Mr Govedarica’s general practitioner Dr Ristevski who has consistently reported that Mr Govedarica has been suffering from chronic lumbar pain since 2011.
The Tribunal considers that Mr Govedarica’s spinal condition was having a moderate functional impact on activities requiring spinal function in accordance with Table 4. Mr Govedarica reported that during the qualifying period he had difficulty sitting for long periods of time, walking distances, engaging in overhead activities and often had difficulty bending. The Tribunal preferred the reports of Mr Govedarica’s treating doctors over the HPAU and JCA assessments, as these reports relied upon clinical examination and treatment of Mr Govedarica over many years.
The Tribunal therefore awards Mr Govedarica 10 points under Table 1 of the Impairment Tables in respect of this condition.
Mental Health Condition
Mr Stojanka Stefanovic, clinical psychologist, in a report dated 17 September 2016 in support of an earlier DSP claim states:
Mr. Govedarica was referred to me for counselling in 2016 regarding depressive symptoms.
Mr Govedarica has been living in Australia since 1998. He and his family came here as refugees from the war in Bosnia. During the war, Branko was imprisoned and subjected to physical and mental torture. He is married and has two adult daughters and son. In 2002 he sustained injury at work, and he lost fingers on his left arm. Branko continued to work, but in 2010 he was involved in traffic accident when his back was injured, and it took him two years to partly recover. Branko is a severely traumatised person. He is also experiencing mood swings, agitation and irritability on a daily basis.
In our monthly sessions, the focus is on the following symptoms:
·Poor sleep
·Mood swings with prevalence of depression
·Social anxiety
·Loss of joy in life
·Poor attention and difficulty to concentrate
·Low self-esteem
The diagnosis of Adjustment Disorder with depression/ PTSD has been made.
Dr Ristevski, in reports of 28 September 2017 and 29 March 2019 opined:
Anxiety with depression requiring psychiatric treatment. Chronic problem. Disability in associated mental function exceeds 20 percent.
Dr George Wahr, psychiatrist, in a report of 22 March 2018 opined:
Mr. Branko Govedarvica is a patient of mine suffering from back injury as well as significant agitated depression.
Mr. Govedavica has no work capacity from a psychiatric point of view and his psychiatric impairment is thirty-five (35) per cent according to the AMA guides.
Mr Govedavica has problems with concentration and memory as well as depression and anxiety and sleep disturbance.
Mr Govedarica advised the Tribunal that he had been having difficulty with depression for some time and believed it had started in 2002 when his fingers had been cut off. He said he had been seeing different doctors since the accident as it had caused him great stress and anxiety. He explained it had taken several years of hand therapy to be able to gain some functionality, which had caused him great stress. Although he had been able to return to work, after his second accident he had become crippled with pain and this had greatly aggravated his depression.
At the hearing, Table 5 – Mental Health Function (Table 5) of the Impairment Tables was explored in respect of the functional impact of Mr Govedarica’s mental health condition, with a focus on whether or not he has a moderate impairment.
Table 5 – Mental Health Function - 10 points
There is a moderate functional impact on activities involving mental health function.
1The person has moderate difficulties with most of the following:
(a)self care and independent living;
Example: The person needs some support (that is, an occasional visit by or assistance from a family member or support worker) to live independently and maintain adequate hygiene and nutrition.
(b)social/recreational activities and travel;
Example 1: The person goes out alone infrequently and is not actively involved in social events.
Example 2: The person will often refuse to travel alone to unfamiliar environments.
(c)interpersonal relationships;
Example: The person has difficulty making and keeping friends or sustaining relationships.
(d)concentration and task completion;
Example 1: The person finds it very difficult to concentrate on longer tasks for more than 30 minutes (such as reading a chapter from a book).
Example 2: The person finds it difficult to follow complex instructions (such as from an operating manual, recipe or assembly instructions).
(e)behaviour, planning and decision-making;
Example 1: The person has difficulty coping with situations involving stress, pressure or performance demands.
Example 2: The person has occasional behavioural or mood difficulties (such as temper outbursts, depression, withdrawal or poor judgement).
Example 3: The person’s activity levels are noticeably increased or reduced.
(f)work/training capacity.
Example: The person often has interpersonal conflicts at work, education or training that require intervention by supervisors, managers or teachers or changes in placement or groupings.
Mr Govedarica gave evidence that during the qualification period:
·he was mostly was able to look after himself, but sometimes he had problems motivating himself to shower;
·he did not partake in social activities, preferring to stay at home;
·he rarely saw his friends for coffee or went to church, interacting predominantly with his wife and children;
·he had no ability to concentrate or complete tasks and he would watch a movie with his wife to keep her company, but he simply could not follow what was going on;
·he had difficulty planning making decisions and again relied upon his family; and
·he did not believe he had any capacity to attend work or training.
The Respondent accepted that Mr Govedarica’s mental health condition was fully diagnosed, treated and stabilised during the qualifying period and that a maximum of five impairment points could be awarded to this condition under Table 5 – Mental Health Function. The Respondent contended that the opinion of the HPAU should be preferred to that of Dr Ristevski as the HPAU are experts in applying the impairment tables. It asserted that Dr Wahr’s opinion did not refer to the impairment tables and did not provide sufficient detail regarding Mr Govedarica’s mental health function during the qualification period.
Dr Minogue preferred the assessment of the JCA, which noted that Mr Govedarica reported no or mild difficulties with self-care and independent living; mild difficulties with social/recreational activities and travel; no difficulty with interpersonal relationships and mild difficulty with concentration and task completion. The JCA noted Mr Govedarica was able to maintain focus and attention through the 45 minute assessment. Dr Minogue, advised the Tribunal that Dr Ristevski had agreed with these descriptors and Dr Wahr did not confirm the JCA’s assessment.
Having considered all the evidence before it and relying on the evidence of Mr Stojanka Stefanovi and Dr Wahr, the Tribunal is satisfied that Mr Govedarica’s mental health condition described as depression was fully diagnosed, treated and stabilised during the qualifying period. The Tribunal draws upon the HPAU report where it recorded that Dr Wahr advised his management of Mr Govedarica’s case involves “a containment situation” of ongoing agitated depression and described his patient as “significantly unwell”.
Additionally, the Tribunal was informed by the medical reports of Mr Govedarica’s general practitioner Dr Ristevski, who has consistently reported that Mr Govedarica has been suffering from major depression since 2011.
The Tribunal considers that Mr Govedarica’s depression was having a moderate functional impact on activities requiring mental health function in accordance with Table 5. Mr Govedarica reported that during the qualifying period he:
·had poor concentration;
·did not want to socialise;
·preferred to stay at home;
·had difficulty planning;
·was often argumentative – regularly with Centerlink staff;
·suffered mood swings;
·was easily frustrated;
·suffered low self-esteem; and
·occasionally needed assistance from his family to undertake self-care.
The Tribunal prefers the reports of Mr Govedarica’s treating doctors over the HPAU assessment, as these reports relied upon clinical examination and treatment of Mr Govedarica over many years.
The Tribunal therefore awards Mr Govedarica 10 points under Table 1 of the Impairment Tables in respect of this condition.
Right Hand Condition (finger amputation)
Dr Ristevski, in a report of 28 September 2017, opined:
Amputation of right hand 2^nd to 4^th fingers due to crushed injury in 2002 causing loss of right hand function of significant degree above 10percent and limiting grip and fine hand movements and function. Permanent condition.
Mr Govedarica indicated to the Tribunal that perhaps his DSP application had been rejected because he had gotten into an argument with the JCA assessor. This occurred because the assessor had indicated that Mr Govedarica had only had two of his fingers cut off instead of four, failing to acknowledge the severity of the injury where his hand had been crushed. He emphasised that this had greatly upset him because the JCA assessor had not noted these injuries down correctly.
The Tribunal next explored the functional impact of Mr Govedarica’s impairment under Table 2 of the Impairment Tables (a moderate functional impact). Table 2 states:
Table 2 – Upper Limb Function – 10 points
There is a moderate functional impact on activities using hands or arms.
1The person has difficulty with most of the following:
(a)picking up a 1 litre carton full of liquid;
(b)picking up a light but bulky object requiring the use of 2 hands together (e.g. a cardboard box);
(c)holding and using a pen or pencil;
(d)doing up buttons or tying shoelaces;
(e)using a standard computer keyboard;
(f)unscrewing a lid on a soft-drink bottle.
Mr Govedarica gave evidence that during the qualifying period:
·he had pain in his arm every day and felt constant pain in the fingers that are not there anymore;
·it had taken years of hand therapy to be able to get back some use of his hands but when he uses them it is very painful;
·he has great difficulty in doing smaller/fine tasks and that he uses his other hand but it’s not the same;
·he had to adapt over time to be able to pick up a one litre carton full of liquid;
·he had to adapt over time to be able to pick up an object using two hands;
·he had difficulty holding and using a pen or pencil in his right hand and that he could use his left hand but it was not as good;
·he could not do up buttons or tie shoelaces;
·he could not use a standard computer keyboard; and
·he could unscrew a lid on a soft drink bottle, but with difficulty.
The Respondent noted that as a result of an incident at work in 2002, Mr Govedarica had the top of his fingers on his right hand amputated and accepts that this condition was fully diagnosed, treated and stabilised during the qualifying period. The Respondent contended that the available evidence indicated an impairment rating of five points was appropriate and preferred the opinion of the HPAU over that of Dr Ristevski.
The Respondent noted that Dr Ristevski’s earlier opinions had described the functional impact of Mr Govedarica’s finger amputation as generally well managed and causing limited or minimal impact on functions. Further, the Respondent contended that this opinion reflected Mr Govedarica’s ability to continue working after the workplace accident where his hand was crushed and fingers amputated.
Dr Minogue of the HPAU advised the Tribunal that the medical evidence provided to him did not clearly reference which fingers had been amputated and to what extent, but this had been cleared up during his discussions with Dr Ristevski who advised that substantial portions of three of Mr Govedarica’s fingers had been amputated. Dr Minogue therefore assumed this would impact dexterity resulting in difficulty handling small objects such as doing up buttons. Additionally, as Mr Govedarica was missing part of the index and middle finger on his right hand, this would impact reaching up or being able to pick up objects.
Dr Minogue did not concur with Dr Ristevski’s assessment that Mr Govedarica’s finger amputation had a moderate functional impact on activities using his hand or arms. Dr Minogue assessed Mr Govedarica and concluded he would have no difficulty picking up light objects and using his other hand. Further, Dr Minogue argued that Mr Govedarica’s amputation had occurred some 17 years ago and that he has obviously adapted as people do. He had indicated to the JCA he was able to write with his other hand and he would be able to use a standard keyboard, but that he would not be able to unscrew the lid on a bottle. He also indicated that, at most, three of the descriptors would apply to his condition but not all six.
Dr Minogue advised the Tribunal that the fact the amputation of fingers had occurred on Mr Govedarica’s dominant hand was of no relevance to functionality as he would have been able to adapt over time. He also advised that age was not a factor in his consideration of an individual’s ability to adapt and he did not consider Mr Govedarica as elderly by any estimation.

Having considered all the evidence before it and relying upon the physical appearance of Mr Govedarica at the hearing, the Tribunal is satisfied that Mr Govedarica’s right hand condition was fully diagnosed, treated and stabilised during the qualifying period.
Additionally, the Tribunal was informed by the medical reports of Mr Govedarica’s general practitioner Dr Ristevski, who has consistently reported on Mr Govedarica’s amputation of right hand second to fourth fingers due to the crush injury in 2002.
The Tribunal consides that Mr Govedarica’s right hand condition was having a mild functional impact on activities requiring upper limb function in accordance with Table 2. Mr Govedarica reported that during the qualifying period he had difficulty handling small objects, doing up buttons, tying up shoe laces, holding a pen and gripping objects.
The Tribunal therefore awards Mr Govedarica five points under Table 2 of the Impairment Tables in respect of this condition.
IMPAIRMENT RATING
The Tribunal has found that Mr Govedarica has an overall impairment rating of 25 points, with 10 points allocated under Table 4 (Spinal Functions), 10 points allocated under Table 5 (Mental Health Function) and 5 points under Table 2 (Upper Limb Functions). Mr Govedarica therefore satisfies section 94(1)(b) of the Act.
DOES MR GOVEDARICA HAVE A CONTINUING INABILITY TO WORK?
To qualify for the DSP, Mr Govedarica must not only have an impairment with a rating of 20 points or more under the Impairment Tables, he must also demonstrate he has a continuing inability to work. Mr Govedarica would be considered to have a continuing inability to work if he has actively participated in a POS within the meaning of section 94(3C) of the Act prior to his claim for the DSP. His impairment also must be of itself sufficient to prevent him from doing any work independently of a POS. A person with a severe impairment is not required to satisfy the Secretary that they have actively participated in a POS. A person’s impairment is a severe impairment if it attracts 20 points or more under a single table.
The Tribunal has strictly applied the POS requirement, finding that no power exists to dispense with the operation of section 94(2)(aa) of the Act. It is also irrelevant whether an applicant was aware of the requirement or not.
Mr Govedarica has not been found to have a severe impairment of 20 points under a single table. Therefore, he must have participated in a POS for the requisite 18 months prior to his claim. The Respondent provided evidence which indicated that Mr Govedarica had not completed such a program within the required timeframe, as he had only actively participated in the POS for 479 days during the relevant period did not satisfy section 7(1) of the POS Determination.
The Respondent acknowledges that Mr Govedarica was participating in a POS at the end of the POS period. However, it argues that there was insufficient evidence indicating he was prevented from improving his capacity to prepare for, find or maintain work through continued participation solely due to his impairment (see 7(5) of the POS determination).
The Respondent contends that Mr Govedarica has a work capacity of greater than 15 hours per week. It relies upon the JCA report dated 11 July 2017 which noted Mr Govedarica had a baseline work capacity of 15 to 22 hours per week and, with targeted intervention, his capacity is likely to result in achieving 15 to 22 hours per week within 24 months. Additionally, the Respondent relied upon the opinion of the HPAU dated 2 August 2019, which concluded that Mr Govedarica’s overall level of disability did not preclude him from performing at least 15 hours of paid work within two years of qualification with intervention.
The Respondent contented that according to Matchworks records, (Mr Govedarica’s employment service provider), Mr Govedarica first attended on 16 December 2016. He continued to attend appointments and complete job searches, but had refused to participate in any job preparation, education, training or work experience. Matchworks stated it was unable to determine whether Mr Govedarica was unable to improve his capacity to prepare or find work solely because of his impairment. The Respondent argued that this supported its contention that Mr Govedarica could not be exempted from participating in a POS in accordance with section 7(5) of the POS Determination.
Mr Govedarica was adamant he had undertaken all his POS requirements, stating “everything they offered I accepted”. Additionally, he contended that he had completed all the time requirements for his POS and provided the Tribunal with a letter from Disability Employment Services dated 20 April 2016.
The Tribunal was provided with an undated letter and file notes from the Quality Manager of MatchWorks. The file notes consistently refer to Mr Govedarica’s belief that he is unfit for any work. The notes make two references to his wish to not attend any training courses due to his limited English and his inability to take English classes because of his health affecting his concentration. The file notes present a picture of Mr Govedarica’s frustration with Matchworks’ refusal to provide a letter of support for his DSP claim and his believe that Matchworks and Centerlink were torturing him.
The JCA assessment conducted on Mr Govedarica on 8 June 2017 provides the following rationale for a base work capacity of 15 to 22 hours per week:
Baseline work capacity is assessed as 15-22 hours per week due to the impact of permanent ongoing medical conditions (spinal, hand and mental health conditions). Medical evidence reports symptoms as poor sleep, mood swings with prevalence of depression, agitation and irritability, social anxiety, loss of joy in life, poor memory, attention and difficulties to concentrate, low self esteem, pain and limited mobility of the lumbar spine, limited (right) grip and fine hand movement. Symptoms will impact on concentration, endurance, ability to undertake physically demanding work, and will restrict the type and duration of work the client is able to engage in and sustain.
With specialised disability employment assistance to help the client to identify suitable vocational options, improve jobseeking skills, provide workplace modifications (if required) and provide post placement support, future work capacity is expected to increase within the 15 -22 hours per week bandwidth.
The JCA assessment conducted on Mr Govedarica as part of the appeal process on 21 June 2018 provides the following rationale for a base work capacity of 15 to 22 hours per week:
The client has been diagnosed with several permanent medical conditions. It is assessed that the symptoms and functioning impairments (limited physical abilities, reduced tolerance to sitting, standing and walking, mood swings, irritability, poor concentration) that the client experiences have an impact on daily functioning therefore the client’s work capacity is recommended to be 15-22 hours per week.
With ongoing medical intervention and Disability specific intervention including workplace modifications, training in suitable duties, consideration of hours of work (5 days of 3 hour shifts per week) and post placement support, the client’s work capacity with intervention is likely to result in the client achieving 15-22 hours per week within 24 months.
The client is currently linked in with a Employment Support Service provider and would benefit from ongoing intervention.
The Tribunal has considered the nature and the severity of Mr Govedarica’s complex conditions and their impact on his physical and mental functions. It finds that they alone would prevent him from benefiting from a POS, as the program would not improve his capacity to prepare for or find work. Indeed, there is evidence that the program has not improved his capacity to prepare or find work. The Tribunal relies upon the assessment of the JCA assessor, who is considered to have specialised knowledge and experience in identifying barriers to employment, interventions, available programs and suitable occupations to determine a person’s work capacity. The assessments conducted on 8 June 2017 and 21 June 2018, quoted above, identifies serious functional impacts of Mr Govedarica’s numerous medical conditions and present complex barriers and restrictions on his ability to work. Additionally, the Tribunal relied upon the numerous medical experts and treating doctors who have all advised they consider Mr Govedarica is unfit to perform any work.
Therefore, the Tribunal finds that Mr Govedarica, in accordance with section 7(5) of the POS Determination, is a person who was prevented, solely because of his impairment, from improving his capacity to prepare for, find or maintain work through continued participation in the program; and that he subsequently satisfies section 94(3C) of the Act.
The Tribunal notes that there seems to be no uniform preference in the decisions of the Tribunal on whether the conclusions in a JCA or medical report should be preferred for the purpose of assessing a continuing inability to work. This Tribunal does not think an absolute preference should be expressed for either report. Rather, the preference should be made on a case-by-case basis, taking into account the usual matters relevant to assessing the probative value of a report. Such matters include the field of expertise and qualifications of the person who wrote the report (or who made assessments forming part of the report), the duration and frequency of the report, the writer’s relationship with the person who is the subject of the report, and the reliability and depth of the analysis within the report.
Dr Peter Kudelka, orthopaedic surgeon, in a medico-legal report associated with a WorkCover claim for Mr Govedarica’s car accident in 2012, opined:
I believe that, as a result of his back symptoms, the patient is incapacitated for his employment as a Truck Driver. I think the patient requires ongoing reassurance, analgesics and regular attendance at his general practitioner, perhaps monthly, to monitor his progress and prescribe whatever analgesic medication he finds appropriate. I do not think he requires spinal injections or spinal surgery.
I would think it likely that this patient would be permanent unfit for work involving prolonged standing, sitting, bending, stooping, lifting weights in excess of 5kg and any future alternative employment would have to accommodate these restrictions of function in his lumbar spine.
Ms Silvana Rizk, physiotherapist, in a report of 10 August 2017, opined:
Branko is definitely not fit for any type of work as it will aggravate his symptoms and will have a huge negative impact on his quality of life.
Mr Stojanka Stefanovic, clinical psychologist, in a report dated 17 September 2016, states:
In my opinion, Branko is not able to go back to work or to gain new skills. At his age, poor command of English language and physical and emotional difficulties there is no much potential to adjust to new circumstances. His memory, attention and ability to concentrate are affected by his condition. He also experiencing periods of poor sleep and depression when he is not able to drive or motivate himself to leave the house.
Dr Jim Ristevski, in a report of 29 March 2019, opined:
Mr Govedarica is effectively permanently unable to resume gainful employment.
The Respondent noted that Dr Wahr and Dr Ristevski have both reported that Mr Govedarica is unable to work, but the reports do not indicate whether they have considered all types of employment. Therefore the Respondent contends that the JCA’s opinion should be preferred as they are as they have specialist knowledge and experience. The Respondent argued that Mr Govedarica did not have a continuing inability to work during the qualifying period.
The Tribunal concludes that Mr Govedarica satisfied section 94(2) of the Act as he had a continuing inability to work. In reaching this conclusion, the Tribunal relies upon the assessment of Mr Govedarica’s treating doctors and notes the findings of the JCA reports, which identified numerous functional barriers faced by Mr Govedarica and the need for workplace intervention to overcome these barriers. As these interventions have been provided over the last two years and Mr Govedarica presents with no marked improvement, this is indicative that he has a continuing inability to work.
The Tribunal is therefore satisfied that Mr Govedarica has a continuing inability to work.
CONCLUSION
The Tribunal is satisfied that, at the date of application, Mr Govedarica was qualified to receive the DSP, as his impairments attracted 20 impairment points under the Impairment Tables and he satisfied section 94(1)(c) of the Act in that he had a continuing inability to work.
DECISION
The Tribunal sets aside the decision under review and, in substitution, determines that Mr Govedarica satisfied all the requirements of section 94 of the Act and is thereby qualified for the DSP as at the date of his claim.

I certify that the preceding 95 (ninety-five) paragraphs are a true copy of the reasons for the decision herein of Member Anna Burke

...............[sgd].......................................
Associate
Dated: 19 November 2019

Date of hearing: 4 October 2019

Applicant: Self-Represented

Advocate for the Respondent: Ms Kellie Latta

Solicitors for the Respondent:
Sparke Helmore Lawyers

[2019] AATA 4793

19 November 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Remedies

Date of hearing:	4 October 2019
Applicant:	Self-Represented
Advocate for the Respondent:	Ms Kellie Latta
Solicitors for the Respondent:	Sparke Helmore Lawyers