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

Gulic and Secretary, Department of Social Services (Social services second review) [2019] AATA 1070 (30 May 2019)
Division:GENERAL DIVISION
File Number(s): 2018/2995
Re:Milenko Gulic
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Dr I Alexander, Senior Member
Date:30 May 2019
Place:Sydney

The decision under review is affirmed.
.........................[sgd]............................................
Dr I Alexander, Senior Member
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – impairment tables – whether applicant qualified for DSP during claim period – whether condition fully diagnosed, treated, stabilised and likely to persist for more than two years – whether the applicant’s impairment attracts 20 points or more under the Impairment Tables – whether applicant has a continuing inability to work – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999(Cth) sch 2
SECONDARY MATERIALS
Social Security (Active Participation for Disability Support Pension) Determination 2014
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Dr I Alexander, Senior Member
30 May 2019
BACKGROUND

Mr Gulic who is now 57 years old, had been receiving Disability Support Pension (DSP) since August 2005. He had qualified for DSP under the Social Security Act 1991 (the Act) when an earlier version of the Impairment Tables was in force.
On 11 April 2017 Mr Gulic contacted Centrelink about travelling to Serbia for longer than the maximum portability period.
In a letter dated 1 May 2017 Centrelink notified Mr Gulic that he had to undergo an assessment to determine whether he can be paid his DSP for an indefinite period of time.
The letter stated that “the assessment will consist of a medical review of your Disability Support Pension qualification and will apply the 1 January 2012 Impairment Tables which may mean you are no longer assessed as qualified for Disability Support Pension”.
On 25 May 2017 Mr Gulic submitted a Medical Report – Disability Support Pension Review Form. Dr Todorovic, Mr Gulic’s general practitioner (GP), completed section B of the Medical Report and listed several medical conditions which had an impact on Mr Gulic’s ability to function. The conditions that had most impact included various past musculo-skeletal injuries.
Mr Gulic’s impairment was assessed under the current Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Determination) which was introduced on 6 December 2011.
In a Job Capacity Assessment (JCA) report submitted on 15 August 2017 the assessor recommended a rating of 0 points under the current Impairment Tables and assessed a baseline work capacity as 15 to 22 hours per week.
On 21 February 2018 a Centrelink delegate decided to cancel Mr Gulic’s DSP on the basis that he did not have a rating of 20 points or more under the Impairment Tables. The decision was affirmed by an Authorised Review Officer on 10 April 2018.
On 23 May 2018, the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1) decided that, at the date of cancellation of DSP, Mr Gulic did not have a rating of 20 points or more under the Impairment Tables and, therefore, did not qualify for DSP.
In these proceedings Mr Gulic seeks review of the AAT1 decision.
On 23 April 2018 Mr Gulic attended the hearing in person and was assisted by a lay advocate as well as an interpreter of the Serbian language.
ISSUES
DSP is defined as a social security payment in s 23 of the Act.
Section 80 of the Social Security (Administration) Act1999 (the Administration Act) provides:
1If the Secretary is satisfied that a social security payment is being, or has been, paid to a person:
(a)who is not, or was not, qualified for the payment; or
(b)to whom the payment is not, or was not, payable;
the Secretary is to determine that the payment is to be cancelled or suspended.
Section 117 of the Administration Act provides that an adverse determination means a determination under sections 79, 80, 81 or 82.
Section 118 (1) of the Administration Act provides that
1The day on which an adverse determination takes effect in relation to a social security payment is worked out:
(b)in the case of carer payment—in accordance with this section and section 120; and
(c)in the case of any other social security payment—in accordance with this section.
Section 118 (13) provides for DSP as follows:
(13)In any other case, an adverse determination takes effect:
(a)on the day on which it is made; or
(b)if a later day is specified in the determination, on that day.
As the decision to cancel Mr Gulic’s DSP was an adverse determination within the meaning of s 117 of the Administration Act, he had to satisfy the requirements of s 94 of the Act as at the date of cancellation of his DSP, that is, 21 February 2018.
Section 94(1) of the Act provides that a person is qualified for DSP if:
·the person has a physical, intellectual or psychiatric impairment (s 94(1)(a));
·the person’s impairment is of 20 points or more under the Impairment Tables (s 94(1)(b)); and
·the person has a continuing inability to work as defined by the Act (s 94(1)(c)(i)).
The Respondent concedes, and the Tribunal accepts, that Mr Gulic suffered medical conditions that may cause impairment and, therefore, satisfied s 94(1)(a) of the Act.
On consideration of the evidence before the Tribunal, I am satisfied that, for present purposes, the relevant medical conditions include several musculo-skeletal conditions involving, in particular, his right wrist, both shoulders, right ankle, cervical spine, and lumbar spine. Mr Gulic also claims to suffer a chronic mental health condition and as well as global “chronic pain”.
The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Impairment Determination”) requires that an impairment rating can only be assigned to an impairment if the condition causing that impairment is “permanent” (paragraph 6(3)(a)).
For the purposes of paragraph 6(3)(a), a condition is permanent if it is:
·fully diagnosed by an appropriately qualified medical practitioner (paragraph 6(4)(a)); and
·fully treated (paragraph 6(4)(b)); and
·fully stabilised (paragraph 6(4)(c)); and
·more likely than not, in light of available evidence, to persist for more than 2 years (paragraph 6(4)(d)).
The Introduction to each relevant Table of the Impairment Determination requires that the “self-report of symptoms alone is insufficient” and “there must be corroborating evidence of the person’s impairment”.
Also, the Introduction to Table 5 of the Determination, which is to be used where a person has a permanent condition resulting in functional impairment due to a mental health condition, states that the diagnosis of the condition “must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made a psychiatrist)”.
Mr Gulic contends that, at the date of cancellation of his DSP, his various medical conditions had a severe impact on his ability to function.
The Respondent contends that, at the date of cancellation, all the relevant medical conditions were not fully treated and fully stabilised and therefore not permanent for the purposes of the Impairment Determination and, therefore, a rating under the Impairment Tables cannot be assigned.
Therefore, the definitive issue in this matter is whether, at the date of cancellation, Mr Gulic’s impairment was 20 points or more under the Impairment Tables and, if so, whether he had a continuing inability to work.
MR GULIC’S EVIDENCE
At the hearing Mr Gulic’s oral evidence was somewhat limited in that he appeared to have some difficulty with communication despite the assistance of the Serbian language interpreter. He often appeared unable to understand questions and provide coherent answers. He also claimed that he was unable to understand or speak English.
However, Mr Gulic was able to confirm that, for the previous three years, he had lived alone in a single story two-bedroom townhouse. He agreed he was able to attend to most of his self-care needs but required assistance with domestic household tasks such cooking, cleaning and shopping, which was provided by his family.
Mr Gulic agreed that he is able to drive a car, use public transport and travel overseas alone.[1] He stated that he has difficulty with mobility and usually needs to use a walking stick but conceded that at times he can walk unaided.
[1] Centrelink electronic screen at T53: Departures from Australia – July 2008, March 2009, September 2009, August 2013 and November 2015.
Mr Gulic asserted that since 2003 he has had no operations because he was “afraid” and didn’t have anyone “to look after him”. He did recall an injection in his left shoulder in about 2011.
With respect to his claimed mental health condition Mr Gulic told the Tribunal that in about 2002 he was diagnosed as suffering from PTSD and was treated for several years by a psychiatrist. In about 2008 after he stopped seeing the psychiatrist his treatment continued but was supervised by his GP, Dr Todorovic.
Mr Gulic claimed that his mental health condition was reasonably stable until his pension was cancelled and that subsequently his condition had worsened such that he was referred to a psychiatrist, Dr Kuljic, and a clinical psychologist, Dr Tomic for further treatment. He indicated that his medication has been increased and that he continues to see Dr Kuljic every 2-3 months.[2]
[2] In Letter dated 24 September 2018, Dr Kuljic stated: I have been treating Mr Gulic in my rooms since 18/04/2018, for anxiety and mood related symptoms. His current medication is amitriptyline 75mg daily. He was advised to increase the dose to 100mg daily and to 125mg daily in a month if needed and if side effects not present.
JCA REPORT – 15 AUGUST 2017
The JCA report was prepared with the assistance of a Serbian language interpreter.
Relevant extracts from the report are as follows:
·Client reported using Voltaren, Brufen, Panadeine Forte.[3]
·Client was observed to remain seated without noticeable difficulty during the 60 minute assessment. He was observed to transfer from sit to stand independently. He stated he remains capable of sitting 30-60 minutes.
·Client demonstrated firm right handed grip strength on handshake. Client reported he remains capable of lifting/ carrying 2 kilograms. He reported nil difficulties with picking up small objects (e.g. coins). He was observed to undo and redo zippers during the assessment and turn pages of medical documents without noticeable difficulty. He stated he remains capable of opening jars and lids. Client was also observed to pick up a pen with normal grip and sign consent form documents without noticeable difficulty, using his right hand.
·He reported difficulty reaching above shoulder height.
·Client was observed to walk without any aids or assistance on the day of assessment. He was observed to transfer from sit to stand independently.
·Client reported he has already had surgery to his left eye which has helped improve his vision. He stated he remains capable of driving, however he does not currently have a driver’s licence. He stated he lost his driver’s licence for 1 year (not related to visual impairment), and will regain soon. Client was observed to sign documentation accurately. Client was also observed to walk without noticeable difficulty through the office, being mindful of furniture and surroundings.
·It was noted that a Serbian interpreter was present during the assessment, however, the client was capable of communicating reasonably well in English for most the assessment. [sic] The client was also able to recall several incidents from the past.
[3] Report from GP, Dr Todorovic dated 24 May 2017 noted: diclofenac 50mg (commenced 1998), panadeine forte tablet (commenced 2003), and paracetamol 500mg (commenced 2003).
In a telephone discussion with the assessor, on 3 August 2017, Dr Todorovic confirmed that Mr Gulic had not attended any type of pain management program, relied on analgesic medication and had no recent specialist surgical review.
Dr Todorovic also commented that Mr Gulic suffers from “anger and other psychological symptoms” and requires “referral for psychological assessment”.
MEDICAL EVIDENCE
Liverpool Health Service
In a hospital Discharge Summary dated 10 December 2003 it was noted that Mr Gulic was admitted on 4 December 2003 following a “Fall from 3m”. Diagnosis was recorded as # distal (L) radius, #(R) lower ribs….right pleural effusion, basal atelectasis. It was also noted that that there were “degenerative changes of the lumbar spine”.
On 5 December 2003 a closed reduction of the left distal radius fracture was performed.
Dr Ireland – Orthopaedic Surgeon
In a letter dated 6 October 2004 Dr Ireland noted that Mr Gulic was complaining of “pain in the wrist, right ankle, his lumbosacral spine and left shoulder” and that there was some restriction of movement of the right wrist. However, the shoulder had “surprisingly good range of motion, but pain on palpation and on overhead movement.”
In a letter dated 11 November 2004 Dr Ireland noted that Mr Gulic was complaining of “increasing pain in his shoulders” and that his wrist X-ray showed “apart from some disuse atrophy the fracture is well healed”. Conservative treatment was recommended.[4]
[4] I note that there is no mention of injuries from a motor vehicle accident in February 2004.
Dr Ireland also added that “his bone scan once again, although it shows evidence of some past rib fractures and some increase uptake to his costochondral strains in the ribs, that he is generally improving”.
In a letter dated 4 March 2005 Dr Ireland noted that there had been no substantial change in Mr Gulic’s condition and that he was “still complaining of pain in his right ankle, his right wrist, his left shoulder and back”.
On examination Dr Ireland noted minimal restriction in the right wrist and ankle and equal range of motion in both shoulders with some “mild impingement type symptoms”.
Dr Ireland concluded that “objectively, although this gentleman has improved substantially over the last 12 months, he still has some residual restriction. I believe however he is fit to commence a graduated return to work”.
Imaging
An MRI Cervical Spine performed on 10 October 2008 is reported as showing “central and left C5/6 disc protrusion – no nerve compression” and “small disc bulges at C4/5 and C6/7”.
An MRI Right Ankle performed on 23 September 2011 is reported as showing “Complete chronic post traumatic tear of the anterior talofibular ligament and the posterior calcaneofibular ligament. Partial tear of the medial ligament complex. Moderately advanced arthritic changes in the subtibial, talocalcaneal and intertarsal joints”.
An MRI of the right wrist performed on 24 November 2011 is reported as showing “evidence of irregularity of the marrow with marrow oedema in the scaphoid and lunate ….thickening of the dorsal scapholunate ligaments ….a ganglion cyst on the volar aspect of the carpus on the ulnar side”.
An MRI Right Shoulder performed 27 November 2011 is reported as showing “Fluid within the joint space. Biceps tendon sheath effusion. Subacromial/subdeltoid bursitis, insertion supraspinatus tear. AC joint degeneration”.
An MRI Right Shoulder performed 27 November 2011 is reported as showing “A full thickness anterior supraspinatus tear. Subacromial/subdeltoid bursitis. Long head of biceps tendinosis”.
An MRI of the lumbar spine performed 27 November 2011 is reported as showing “multilevel disc degenerative disease” with bilateral facet joint changes. Wedging of L2, L3 and L4 was noted which may be “due to previous trauma”. There was no foraminal stenosis seen at L1/2, L3/4. At L5/S1 but there was “encroachment on the right sided exit foramen with neural compression”.
An X-ray of the right foot and ankle performed on 13 December 2011 is reported as showing “minimal bony degenerative changes with slight joint space narrowing laterally”.
Dr Manohar – Rehabilitation and Pain Physician
In a report to Morgan Ardino & Co Solicitors (MACS) dated 5 September 2012 Dr Manohar stated, inter alia, as follows:
Mr Milenko Gulic was referred to me by Dr Todorovic and I saw him on 11 October 2011. He told me that he had a motor vehicle accident on 2 February 2004 …….he felt pain in his head, chest left shoulder, right arm, low back, legs, right ankle and neck.[5] He was driven to hospital where he spent five days and underwent x-rays, was given pain relief and a splint in his right arm. [emphasis added]
He had suffered previous injuries: he had a neck injury from a car accident in 1997; in 2001 his neck injury was aggravated during an assault; in 2003 he fell from a roof and fractured right wrist, suffered injuries to his right shoulder, chest, face and had four rib fractures.
Currently he complained of neck pain with headaches which extended down the left arm and shoulder to the wrist with associated weakness and sensation of pins and needles …right wrist pain … pain down the length of the spine.
[5] There is no mention of 5 left sided rib fractures.
Dr Manohar noted the reports of the various MRI examinations and recommended orthopaedic surgery consultations with Dr Dave and Dr Viswanathan.
In a subsequent report dated 10 May 2018 Dr Manohar noted that he had not seen Mr Gulic since 5 February 12 and restated the facts as recorded in his earlier report. However, he did add that following the motor vehicle accident on 2 February 2004 Mr Gulic was taken to Liverpool Hospital and found to have “fractures to the 5^th 6^th 7^th 8^th 9^th ribs on the right side and injuries to his right wrist, low back region, his neck and left shoulder and right ankle.” [emphasis added]
Dr Manohar referred to the consultations by Dr Dave and Dr Viswanathan, listed the findings of the various imaging studies performed in 2008 and 2011 as diagnoses and then stated inter alia as follows:
He states that his condition has deteriorated. He walked in using a walking stick for ambulation. I understand he is planning further operations. He is planning to undergo back surgery and bilateral shoulder surgery as advised by the surgeons.[6]
He states that he feels generalised weakness and his current symptoms are headaches neck pain, right shoulder pain, left arm pain, sternal region pain, whole spine pain, pain in both hips, knees and ankles.
His symptoms are aggravated by walking 50-100 metres, sitting for 5-15 minutes, lifting and carrying in excess of 2kg. He has difficulty with gripping his right hand and has a tendency to drop things. He avoids, bending, lifting and twisting activities….he is unable to drive longer distances ….he uses Panadeine forte 1tds, Voltaren tab 1tds, Panamax 3 tabs every day, Brufen and Nurofen[7] for pain relief.
He describes his emotional status as feeling upset, angry and depressed….He states that he is given approximately 20 hours of gratuitous care by his sons, and daughter- in-law and a cousin who provide assistance with grass cutting, cleaning the house, washing, caring for his dog, cooking shopping and driving.
[6] This is not consistent with Mr Gulic’s own evidence at the Tribunal and if correct would clearly suggest that Mr Gulic’s shoulder and spine condition were not fully treated and stabilized as at 10 May 2018. Also, there is no evidence of any recent advice with respect to the need for surgical intervention.
[7] Brufen and Nurofen are brand names for ‘ibuprofen’, Voltaren and ibuprofen are non-steroidal anti- inflammatory drugs (NSAIDs).
Dr Dave – Orthopaedic Surgeon

In an undated letter to (MACS) Dr Dave stated, inter alia, the following:
Mr Milenko Gulic was seen by me on 16 November 2011……. His history went back to 2 February 2004 where he was involved in a motor vehicle accident. He describes a motor vehicle accident where there was significant property damage and had injured his shoulders, his cervical spine, his lower back, his right ankle and his right wrist.[8] He was taken to Liverpool Hospital and was admitted for approximately four days. Subsequent to this accident, he has had painful restriction of all the joints including pain……He described pain anterolaterally in both shoulders with difficulty lifting his arms up …..he also had generalised cervical spine pain as well as some dysesthesias. I was not able to demonstrate any radicular distribution or peripheral nerve distribution in the upper or lower limbs……. As far as his shoulders are concerned, he had features of impingement and possibly a rotator cuff tear. His symptoms were not severe enough to proceed straight to surgery, and in view of this, he was recommended to have subacromial injections of cortisone as well as physiotherapy……as far as his wrist was concerned, he has a ganglion, which was going to be assessed by Dr Manohar with a view to cortisone injection. His cervical and lower lumbar spine was managed with physiotherapy and pain management……..his foot and ankle were being managed by Dr Viswanathan who planned for foot and ankle surgery …..Regards to his shoulder, he was keen to be placed on the waiting list for a decompression and this was organised.[9] [emphasis added]
[8] I note that there is no mention of the 2003 accident and no reference to 5 left sided fractured ribs.
[9] There is no evidence before the Tribunal that Mr Gulic was placed on a waiting list for shoulder surgery.
Dr Viswanathan – Orthopaedic Surgeon
In a letter to MACS dated 13 December 2011 Dr Viswanathan noted that Mr Gulic was involved in a car accident in 2004 and now presents “complaining of right ankle pain” and “difficulty with walking”.
Dr Viswanathan noted the findings of the MRI scan of the right ankle which suggested “some arthritis in the ankle joint as well as a tear to his ATFL and calcaneo fibular ligament” as well as “moderately advanced arthritic changes in his ankle joint in his talar calcaneus joint and his intertarsal joints”. He concluded that Mr Gulic had “early ankle arthritis and some ankle instability” and suggested initial treatment with non-operative measure which would include strapping and physiotherapy before progressing to a surgical procedure.
In a letter to a solicitor dated 26 April 2012 Dr Viswanathan confirmed a diagnosis of “arthritis of his ankle joint and talocalcaneal joint as well as intertarsal joint from bilateral cavovarus deformities to his feet associated with ankle sprain”. He added that Mr Gulic “could have sustained the ATFL and calcaneal fibula ligament sprain and tears at the time of injury however the arthritic changes in my opinion would be longer standing than the injury at 2004”.
Dr Viswanathan indicated the “down the track he may need surgical management of his arthritis including fusions of various joints in his feet and in his ankle”.[10]
[10] Attached to the letter was a “surgical quotation” from Campbelltown Private Hospital but no evidence of being placed on any waiting list.
Dr Giblin – Orthopaedic Surgeon
In a letter to Margiotta Solicitors, dated 14 May 2015, Dr Giblin stated that on 2 February 2004, following a motor vehicle accident, Mr Gulic was admitted to Liverpool Hospital, where he was an inpatient for 5 days. His injuries included “fractured left 5^th, 6^th, 7^th, 8^th and 9^th ribs, soft tissue injury to his right wrist, low back and neck, right ankle and left shoulder”.[11] [emphasis]
[11] This appears to be the first time that an injury to the 5 left sided ribs has been attributed to the motor vehicle accident in 2004 with no corroborating evidence. I note that in his 2018 report Dr Manohar noted right sided rib fractures following the accident in February 2004.
Dr Giblin listed Mr Gulic’s symptoms in order of severity: severe left shoulder pain and stiffness, constant low backache with intermittent sharp stabbing pains, pain in the lateral aspect of his right ankle, permanent pain and stiffness in his right wrist, neck pain and stiffness in with headaches and chest pain.
Dr Giblin noted that the symptoms were causing severe limitation in terms of Mr Gulic’s personal and household activities and that he is heavily reliant on “gratuitous support from family members for heavy housework, shopping, lawns and gardens”. Also, Mr Gulic can still drive a car “only for a short distance”, can only walk 100 metres, cannot stand for more than 10 minutes or sit for more than 30 minutes.
On physical examination Dr Giblin noted that Mr Gulic had “trouble making a fist”, restricted active range of motion in the right wrist, full active range of motion in the left wrist, severe adhesive capsulitis with significant restricted active range of motion of both shoulders and severe restricted range of passive motion of both ankles.
Dr Giblin noted the various imaging studies and expressed the opinion that “Based on the history and examination, he has the provisional diagnosis of a soft tissue injury to his neck and back, right wrist, right ankle and left shoulder, reasonably causally related to the subject road traffic accident. He added that Mr Gulic’s condition “is stable” and that “it is unlikely that he is going to have any improvement”.
In note that Dr Giblin did not provide any convincing reasons to support his opinion.
Dr Todorovic – GP
In a Centrelink Medical Report DSP review for portability Section B form, dated 24 May 2017, Dr Todorovic indicated that Mr Gulic has been his patient 25 March 2004.
Medicare date of service records confirm that Dr Todorovic was Mr Gulic’s primary GP from 25 February 2013 to 4 October 2018.
At the hearing the lay advocate told the Tribunal that Mr Gulic had recently changed his GP, and now sees Dr Tomka, because he was unhappy with Dr Todorovic’s reports to Centrelink.
In the report Dr Todorovic lists “neck injury with MRI evidence of disc protrusion of C5/6 level and disc bulge at C6/7” as the condition with most impact on Mr Gulic’s ability to function.
In a brief appendix to the report Dr Todorovic states that in July 1998 Mr Gulic was involved in a traffic accident and claims to have suffered fractures of two cervical vertebrae but indicated that he had seen no evidence to support the claim.
Dr Todorovic also stated that in January 2002 Mr Gulic was assaulted and suffered a “cervical spine injury” and implied that pathology seen in MRI of the cervical spine performed in October 2008 was caused by the assault.[12]
[12] The MRI of the cervical spine demonstrates no evidence of past vertebral fractures. Also, the described pathology is consistent with mild age-related degenerative change and there is no evidence to support a conclusion that Mr Gulic had suffered an acute traumatic cervical spine injury.
Dr Todorovic notes current treatment as diclofenac (Voltaren) commenced in 1998 and Panadeine Forte commenced in 2004. He describes impact on ability to function as “Difficulties walking long distances, standing for long periods, decreased hand grip, tingling both hands”. Future/planned treatment is noted as “analgesics physiotherapy”.
Dr Todorovic list a second condition as “…..fractured right distal radius, fractured right pisiform/triquetrum/fractured, right lower ribs, lower back injury, fractured left 5^th, 6^th, 7^th, 8^th, 9th ribs, right shoulder injury, (R) eye laceration sternum injury” with date of onset 4 December 2003. [emphasis]. Current treatment is noted as Diclofenac, Paracetamol and Panadeine Forte all commenced in 2003 and impact on ability to function as “difficulties using his right arm /hand, difficulties bending, sitting and walking for long period, difficulties with overhead activities (R) arm, prolonged standing”.
In a copy of an undated GP Health Summary Dr Todorovic noted “December/2003 (R) wrist surgery – work related injury, whole back injury, head injury; /2/2004 (R) ankle injury -soft tissue – MVA ; (L) shoulder injury”.
In a copy of a GP mental health treatment plan, dated 29 May 2018, Dr Todorovic noted presenting issues as “depression anxiety chronic pain” and that Mr Gulic had seen a psychiatrist from 2003-2007 for “depression, nightmares”. He also noted that past history included “2004 - MVA Injuries: head neck, (R) wrist, (R) ankle, (L) shoulder”.[13]
[13] There is no reference to left or right sided rib fractures.
In a letter dated 14 August 2018 Dr Todorovic provided a list of upper limb and lower limb diagnoses which is essentially a list of past imaging studies but provided no meaningful clinical assessment of these “conditions” as at February 2018.
Dr Todorovic relies on the single MRI scans performed in 2008 and 2011 to diagnose “post traumatic mechanical derangement” of the cervical and lumbar spine but provides no current meaningful clinical assessment of these conditions. Also, he provides no evidence or reasons to support his conclusion that the degenerative changes revealed by the scans were actually caused by trauma.
With respect to Mr Gulic’s mental health Dr Todorovic simply referred to the opinions of Mr Gulic’s current treating psychiatrist and psychologist. He provided no evidence that he had been treating Mr Gulic for his mental health symptoms between 2007 and 2018.
Dr Tomka – GP
In a report dated 7 November 2018 Dr Tomka stated he had been Mr Gulic’s treating doctor since 2014. However, Medicare date of service history records indicate that Mr Gulic was seen by Dr Tomka 5 times in 2014, 3 times in 2015, once in June 2016 and not seen again until after 4 October 2018. As noted above the records indicate that Dr Todorovic was in fact Mr Gulic’s primary treating GP until 4 October 2018.
Dr Tomka stated that Mr Gulic is suffering from multiple upper and lower limb conditions and provided a list of past imaging studies, to the list provided by Dr Todorovic. He expressed the opinion that, as at 21 February 2018 all these conditions were “fully diagnosed, investigated and treated and there is no room for improvement” but provided no analysis or reasons to support his opinion.
Dr Tomka did provide a summary of Mr Gulic’s self-reported impairment which included “Limited range of movement and co-ordination in both arms and hands; severe difficulty in handling, moving or carrying most objects; difficulty using a pen or pencil; not able to walk outside his home; not able to stand more than 5 minute, unable to navigate stairs without assistance”.
With respect to the cervical and lumbar spine Dr Tomka referred to the findings of the MRI scans performed in 2008 and 2011 and concluded that “all his spinal conditions have been fully investigated and treated and there is no room for improvement”. Again, he provided no analysis or reasons to support his conclusion.
Dr Tomka stated that Mr Gulic “is not able to perform any overhead activities or turn his head and bend his neck without moving his trunk and not able to remain seated for more than 10 minutes”.
With respect to the mental health condition, Dr Tomic stated that Mr Gulic is “suffering from PTSD and depression with anxiety. He has extensive treatment with a number of psychiatrists and psychologists without any improvement in his symptoms”.[14]
[14] There is no evidence that Mr Gulic was seen by a psychiatrist or psychologist between 2007 and the date of cancellation on 21 February 2018. The first consultation with Dr Kuljic, Psychiatrist was on 18 April 2018. The first consultation with Dr Tomic, clinical psychologist, was on 14 June 2018.
Dr Tomic – Clinical Psychologist
In a report dated 14 June 2018 Dr Tomic concluded that Mr Gulic suffered from “Major Depressive Disorder” and “Pain Disorder associated with both physical and psychological factors”.
Dr Tomic also stated the following:
During the course of treatment, which commenced on 4^th June 2018,[15] I have provided Mr Gulic with three treatment sessions. The treatment has involved stress-focused cognitive therapy and pain management techniques. However, my treatment does not promise prominent results because Mr Gulic has been suffering for a long time without being properly treated at an early stage of his condition. He was previously treated by a Serbian speaking psychiatrist ……who prescribed antidepressants, but without providing a structured psychological treatment. Considering the severity and the duration of his condition, I estimate Mr Gulic will require psychological treatment and support over a long period. In addition to the psychological treatment he is taking an anti-depressive agent (Endep 25 mg twice a day).[16]
[15] More than 3 months after the date of cancellation of DSP.
[16] ‘Endep’ is a brand of amitriptyline- see footnote 2.
Dr Tomic also commented that that “although his pain has underlying organic pathology and is of sufficient severity to warrant clinical attention, I judge that psychological factors significantly contribute to the onset, severity, exacerbation and maintenance of his pain.”
CONSIDERATION
Mr Gulic contends that, at the date of cancellation on 21 February 2018, he suffered several medical conditions that were all fully diagnosed, treated and stabilised which had a severe impact on his ability to function and, therefore, he was qualified for DSP which should not have been cancelled.
The difficulty for Mr Gulic is that the evidence before Tribunal, in my view, does not provide sufficient support for his contention.
The medical evidence, which can best be described as incomplete with inconsistent history and opinions based on assumptions not supported by evidence or reasons. The available evidence does not provide a convincing explanation for the claimed severity of Mr Gulic’s symptoms or the reported severity of the functional impact of his various medical conditions. The recent medical evidence, in particular, does not provide a reliable objective assessment of Mr Gulic’s ability to function, as at the date of cancellation of his DSP.
Mr Gulic relies on the changes reported in the various MRI examinations performed in 2008 and 2011 with the assumption that these changes provide the diagnostic basis for his current symptoms and functional incapacity.
He also relies on the medicolegal reports provided in 2011, 2012 and 2015 as well as the more recent GP and psychology assessments provided after the date of cancellation.
The earlier medicolegal reports, which presumably were provided for the purposes of a compensation claim, focussed on the causal relationship between the MRI changes and certain musculo-skeletal injuries that were claimed to have occurred following a motor vehicle accident (MVA) in February 2004.
The assessments by the various specialists relied on a similar, but fairly superficial history of injury provided by Mr Gulic with no detail as to the precise nature or extent of the claimed injuries. In 2015, Dr Giblin, noted a history of injury which included 5 left sided fractured ribs which had not been noted in the histories provided to the other specialists and for which no corroborative evidence had been provided.
At this point I note that the Tribunal has not been provided with any contemporaneous documentary evidence with respect to the hospital admission and/or claimed injuries following an MVA in February 2004.
Furthermore, with respect to Mr Gulic’s musculo-skeletal conditions there is no documentary evidence from any treating doctor for the period between March 2005 and May 2017.
During that time Mr Gulic appears to have managed with no change in pain medication, intermittent physiotherapy and no specialist intervention. Also, he had been able to travel overseas on several occasions from 2008 to 2015.
The Centrelink medical report provided by Dr Todorovic in May 2017 is of limited value in that it provides a fairly superficial assessment of Mr Gulic’s medical conditions and the impact of these conditions on his ability to function.
Dr Manohar’s report in May 2018 was essentially the same as his earlier report in 2012 and, in my view, did not provide a satisfactory explanation for Mr Gulic’s claimed severity of symptoms and functional incapacity.
The reports provided by Dr Todorovic and Dr Tomka I found somewhat problematic and unconvincing. These, somewhat similar reports, were provided several months after the date of cancellation and essentially listed the past MRI findings and applied Mr Gulic’s self-report of symptoms to the Impairment Tables. There was no reliable objective clinical assessment of his current functional incapacity.
Furthermore, it is of some concern that there is no explanation for the apparent inconsistencies between Mr Gulic’s oral evidence and the post-date of cancellation medical assessments when compared with the pre-date of cancellation observations and record of interview as submitted in JCA report.
With respect to Mr Gulic’s mental health condition, apart from the evidence that he had treatment supervised by a psychiatrist between 2003 and 2007 for “depression, PTSD” there is no other evidence with respect to symptoms and/or treatment of this condition until April 2018, when Mr Gulic started seeing a psychiatrist who continues to monitor his current medication.
DHS prescribing history indicated that between July 2012 and February 2018 Mr Gulic was supplied with amitriptyline (50 tabs) only four times.
In his report in June 2018 Dr Tomic stated that Mr Gulic “has been suffering for a long time without being treated at an early stage” and that he had commenced a course of treatment. He also commented that psychological factors “significantly contribute to the onset, severity, exacerbation and maintenance” of Mr Gulic’s pain.
CONCLUSION
After having considered the available evidence I have decide the followings:
i)I am satisfied that there is sufficient evidence to accept that, as at the date of cancellation, Mr Gulic has suffered a longstanding degenerative lumbar spine condition, that is probably age related, and permanent for the purposes of the Impairment Determination. I am also satisfied that there is sufficient evidence to conclude that the condition has a mild functional impact on activities involving spinal function. However, I am not persuaded that there is sufficient reliable evidence to conclude that the condition has a moderate functional impact, therefore, 5 points under Impairment Table 4 can be assigned.
ii)I accept that the MRI of the cervical spine performed in 2008 showed mild degenerative changes, however, the relevance of these findings to Mr Gulic’s currently claimed symptoms and functional incapacity is unclear. As there has been no recent imaging, no recent reliable specialist assessment and no explanation for the claimed severity of Mr Gulic’s functional impairment I am satisfied that, as at the date of cancellation the cervical spine condition was not fully diagnosed. Therefore a rating under the Impairment Tables cannot be assigned.
iii)I am satisfied that there is sufficient evidence to accept that, as at the date of cancellation, Mr Gulic’s right ankle condition was permanent for the purposes of the Impairment Determination. I am also satisfied that there is sufficient evidence to conclude that the condition has a mild functional impact on activities involving lower limb function. However, I am not persuaded that that there is sufficient reliable evidence to conclude that the condition had a moderate functional impact, therefore, 5 points under Impairment Table 3 can be assigned.
iv)I accept that the MRI examinations of the upper limbs performed in 2008 showed various pathological changes, however, the relevance of these findings to Mr Gulic’s currently claimed symptoms and functional incapacity is unclear. As there has been no recent imaging, no recent reliable specialist assessment and no explanation for the claimed severity of Mr Gulic’s functional impairment, I am satisfied that, as at the date of cancellation the upper limb conditions were not fully diagnosed. Therefore, a rating under the Impairment Tables cannot be assigned.
v)With respect to Mr Gulic’s mental health condition, I accept that he has a long history of significant mental health symptoms, however, the available evidence clearly demonstrates that for several years prior to the date of cancellation he had no meaningful treatment for this condition. Psychological treatment and regular antidepressant medication started some months after the date of cancellation and is ongoing. I am satisfied that, as at the date of cancellation his mental health condition was not fully treated and fully stabilised and therefore, a rating under the Impairment Tables cannot be assigned.
vi)The issue of “chronic pain” is problematic as, apart Dr Tomic’s comment with respect to the significant contribution of psychological factors, there is no other convincing explanation for the claimed severity, extent and persistence of Mr Gulic symptoms. I am satisfied that, as at the date of cancellation his chronic pain condition was not fully diagnosed, fully treated and fully stabilised and therefore, a rating under the Impairment Tables cannot be assigned.
DECISION

For reasons set out above, the Tribunal is satisfied that, at the date of cancellation on 21 February 2018, Mr Gulic’s impairment was not 20 points or more and he did not satisfy s 94(1)(b) of the Act. Therefore, at that time, he did not qualify for DSP and the decision to cancel his DSP was correct. The Tribunal therefore does not need to consider whether the applicant has a continuing inability to work.
The decision under review is affirmed.

I certify that the preceding 109 (one hundred and nine) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Senior Member

…........................[sgd].............................................
Associate
Dated: 30 May 2019

Date(s) of hearing: 23 April 2019

Applicant: In person

Advocate for the Applicant: R Alexandrova

Solicitors for the Respondent: G Lozynsky- Department of Human Services

[2019] AATA 1070

30 May 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Date(s) of hearing:	23 April 2019
Applicant:	In person
Advocate for the Applicant:	R Alexandrova
Solicitors for the Respondent:	G Lozynsky- Department of Human Services