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

Iliovski and Secretary, Department of Social Services (Social services second review) [2020] AATA 686 (31 March 2020)
Division:GENERAL DIVISION
File Number: 2019/3795
Re:Trajce Iliovski
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Dr Stewart Fenwick, Senior Member

Date:31 March 2020
Place:Melbourne

The Tribunal affirms the decision under review.
..............[sgd]..............................................
Dr Stewart Fenwick, Senior Member
Catchwords
SOCIAL SECURITY – application for disability support pension – whether qualified – conditions of the spine, right wrist and prostate – whether impairment attracts rating of 20 points or more under Impairment Tables – where program of support had not been undertaken – applicant did not meet the qualifying criteria – decision under review affirmed
Legislation
Social Security Act 1991 (Cth)
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
REASONS FOR DECISION
Dr Stewart Fenwick, Senior Member
31 March 2020
BACKGROUND

Mr Iliovski lodged an application dated on 25 June 2019 to review a decision refusing his application for the Disability Support Pension (DSP).
The Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT 1), in a decision dated 28 May 2019, affirmed the decision of an Authorised Review Officer (ARO) dated 23 January 2019 to reject his DSP claim.
Mr Iliovski had previously been advised by Centrelink on 8 September 2017 that his DSP application submitted on 2 March 2017 was unsuccessful.
The hearing took place on 13 March 2020, at which Mr Iliovski was assisted by an interpreter and a personal advocate.
The Respondent lodged ‘T’ documents and a number of documents lodged by Mr Iliovski’s advocate were received as Exhibits. Neither party’s representatives called the Applicant as a witness, however during the hearing I proposed that questions be put to Mr Iliovski due to the nature of the issues arising. Ultimately neither representative put any question directly to him and, consequently, I made inquiries of Mr Iliovski as to several matters.
Mr Iliovski is a 63 year old man of Macedonian heritage who arrived in Australia in 1986 at the age of 30, obtaining citizenship just under ten years later. He has not been in the workforce for several years following the resolution of a common law claim for a work related injury. His superannuation fund also accepted a claim for total and permanent disability. In the years prior to leaving the workforce, Mr Iliovski had physiotherapy treatment under WorkCover.
In addition to the review decisions referred to above, Mr Iliovski was also assessed by a Job Capacity Assessor (JCA) on 15 June 2017 (T4). In all decisions made to date, the Applicant has been considered to have a spinal condition attracting a 10 point impairment assessment.
In his DSP application (T7), Mr Iliovski cited as conditions: chronic back pain (spondylosis with referred pain); a prior right wrist condition (bones removed) and carpal tunnel; left shoulder pain; and significant anxiety/depression. The ARO found the wrist condition and depression were not able to be assessed. In its decision, AAT 1 found the wrist condition was capable of being assessed but attracted no points and the mental health condition was unable to be assessed.
A number of the documents lodged on the Applicant’s behalf and subsequently received into evidence address Mr Iliovski’s prostate condition, which did not form part of any prior application or decision. At the hearing, Mr Iliovski’s advocate submitted that only the spine, wrist and prostate conditions should be considered for an impairment assessment. It was conceded by the Respondent’s representative that the spine condition would attract a 10 point impairment assessment.
At the commencement of the hearing, I outlined in broad terms to the Applicant’s advocate the qualification requirements for DSP, including the qualification period which, in this case, expired some three years ago.
LEGISLATION
Qualification for the DSP is established in s 94(1) of the Social Security Act 1991 (the Act). Under this provision a person must be found to have:
(a)a physical, intellectual or psychiatric impairment; and
(b)an impairment rating of 20 points or more under the Impairment Tables; and
(c)(relevantly) a continuing inability to work.
The Impairment Tables are those found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination). The Determination provides in rule 6 that:
(a)impairment is based on an assessment of functional capacity;
(b)the Tables may be applied following consideration of the person’s medical history; and
(c)a rating can only be applied to an impairment if the person’s condition is permanent.
A condition is considered ‘permanent’ under rule 6(4) if it is ‘fully diagnosed’, ‘fully treated’ and ‘fully stabilised’, and ‘more likely than not, in light of available evidence, to persist for more than 2 years’.
In considering whether a condition is fully diagnosed and fully treated, the following must be considered in accordance with rule 6(5):
(a) 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.
Rule 6(6) states that a condition is fully stabilised if:
(a) either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b) the person has not undertaken reasonable treatment for the condition and:
i.significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment …
‘Reasonable treatment’ is defined under rule 6(7) of the Determination as treatment that:
(a) is available at a location reasonably accessible to the person; and
(b) is at a reasonable cost; and
(c) can reliably be expected to result in a substantial improvement in functional capacity; and
(d) is regularly undertaken or performed; and
(e) has a high success rate; and
(f) carries a low risk to the person.
In addition to particular requirements qualifying the application of particular tables, each Impairment Table carries these two general qualifications: ‘self-report of symptoms alone is insufficient’; and, ‘there must be corroborating evidence of the person’s impairment’.
By operation of s 94(2)(aa) and s 94(3B) of the Act, a person with a severe impairment (one that attracts an impairment assessment of 20 points or more under a single Table) is considered to have a continuing inability to work. Otherwise, this can also arise where the Secretary is satisfied:
(a)the impairment is sufficient to prevent a person doing any work ‘independently of a program of support within the next 2 years’; or
(b)if the person is able to undertake training, it would be unlikely (because of the impairment) to enable them to do any work independently of a program of support within the next 2 years.
For persons without a severe impairment, under s 94(3C) of the Act it is necessary that they have ‘actively participated in a program of support’ as established in the Social Security (Active Participation for Disability Support Pension) Determination 2014 (‘the Active Participation Determination’). The Active Participation Determination requires a person to have participated in such a program for 18 months during the period of 36 months prior to making their DSP application. It also establishes certain conditions under which the requirement may be satisfied (s 7(3)-(5)).
CONSIDERATIONS
The issues for consideration are:
(a)what medical conditions Mr Iliovski has;
(b)which of them are ‘permanent’ and so attract an impairment assessment; and
(c)if there is no severe impairment rating for any individual condition, do the conditions attract 20 points overall, and does Mr Iliovski have a continuing inability to work?
As noted above, it was contended by Mr Iliovski’s advocate that the Applicant suffers from conditions of the spine, right wrist, and prostate. It was submitted that both the spine and prostate conditions are severe, and that each attracts an impairment assessment of 20 points. It was also submitted that Mr Iliovski’s wrist condition is moderate-to-severe, and attracts an impairment assessment of 10 points.
As noted, the representative for the Respondent conceded on the Secretary’s behalf that Mr Iliovski has a spine condition that should attract an impairment assessment of 10 points. It was submitted that the evidence does not support a higher impairment rating. In relation to Mr Iliovski’s wrist condition, it was submitted that he was indeed apparently functionally challenged, but on the evidence overall, it did not attract an impairment assessment. It was submitted that Mr Iliovski’s prostate condition was not yet optimally treated, however even if this were the case, this condition would not attract an impairment rating of greater than 5 points.
With respect to the continuing inability to work, it was submitted on Mr Iliovski’s behalf that he was attending WorkCover-funded physiotherapy in the years leading up to his DSP application. Accordingly, he was unable to also participate in a Program of Support, and if this inability satisfied the requisite legal test, he should be considered to have met the continuing inability to work requirement. I understand from communications lodged with the Tribunal on behalf of the Applicant prior to the hearing that Mr Iliovski has engaged with an employment services provider since November 2018.
The Respondent’s representative submitted there was no evidence before the Tribunal that Mr Iliovski had participated in a Program of Support prior to submitting his DSP application, and there was no referral history prior to this date. It is also contended in the Respondent’s Statement of Facts, Issues and Contentions (SFIC) that none of the exceptions to participation under the Determination can be met. It is further contended in the SFIC that the JCA assessed Mr Iliovski as having a future work capacity within two years of 15-22 hours per week with intervention.
Medical conditions
I am satisfied on the basis of medical reports including Dr Gerald Quan, spinal and orthopaedic surgeon, 11 February 2014 (T5, p 53) and Dr Michael Lee, 18 February 2014 (T5, pp 51-52) that Mr Iliovski has a spinal condition. He suffers from spondylolisthesis at the L5/S1 joint, and has a large pars defect at this level. A further report of Mr Quan, 1 July 2015 (T5, p 50) confirms a degree of foraminal narrowing and irritation of the L5 nerve root.
I am satisfied that there is evidence Mr Iliovski has a condition in the right wrist. This is confirmed by the report of Dr A Kwiatkowski, 3 October 2006 (T7, p 64) who records the removal of the scaphoid and lunate bones and:
Moderate degenerative changes are seen with irregularity of the articular margins and peripheral osteophyte formation. There is widening of the distal radio-ulnar joint and degenerative change is seen at the base of the thumb.
I am satisfied that Mr Iliovski suffers the conditions elevated PSA and Benign Prostate Hypertrophy (BPH). This is evidenced by extensive medical material including the report of Mr Nanjit Rao, Consultant Urologist, 14 February 2020 (Exhibit A1), which confirms the Applicant has been treated at the Royal Melbourne Hospital for these conditions since 2015.
While not pursued at the hearing, I note that Mr Iliovski has received treatment from a psychologist for conditions including Major Depressive Disorder. This is evidenced by the reports of Mr Zac Stojcevski, Psychologist (Exhibit A3), who describes the genesis of these conditions as being his departure from the workforce in 2013. These reports do not meet the threshold requirement of diagnosis by a psychiatrist or clinical psychologist set out in the Impairment Tables for consideration of impaired mental health functioning.
Impairment assessment
Spine condition
I am satisfied on the basis of the medical evidence that Mr Iliovski’s back condition is permanent as defined in the Impairment Tables.
Mr Iliovski confirmed in his evidence at the hearing that the settlement he received in 2016 arising from his workplace injury was in relation to his back. He stated that he received physiotherapy for his back condition. Mr Iliovski’s advocate stated that receipts evidence this treatment (Exhibit A1). There was otherwise no new evidence provided at the hearing specifically addressing Mr Iliovski’s back. I accept that submissions were made by his advocate about a range of functional limitations, including that Mr Iliovski experiences pain when sitting for prolonged periods of time (including during the hearing itself).
It appears that the medical reports closest in time to the qualification period are from late 2017. The report of his treating general practitioner Dr Omar Wafek, 14 November 2017 (T9, p 72) describes chronic lower back pain with pain radiating into the left buttock and left leg. It states; Mr Iliovski walks ‘with difficulty’ and with a limp; has significant limited movement of the lumbar spine; and, pain is aggravated by sitting or standing for longer than 30 minutes.
Dr Quan reported on 7 December 2017 (T9, p 76) that he had treated Mr Iliovski since 2014 and that the Applicant experienced chronic, intractable back pain and radiating leg pain. This pain was ‘exacerbated upon any form a [sic] of heavy lifting, significant bending and twisting activities’, therefore precluding heavy labour. The report carries the caveat that Mr Quan does not consider himself qualified to make an impairment assessment as such.
Dr Wafek made a more detailed functional assessment in an earlier certificate of capacity dated 22 March 2016 (T5, p 49). Dr Wafek then considered that Mr Iliovski should avoid lifting over 5 kg, sitting or standing for over 30 minutes, and persistent bending. At that time he recommended Mr Iliovski could work 4 hours a day, 3 days a week.
AAT 1 heard evidence from Mr Iliovski (T2, p 6) that: he is able to walk and stand for approximately 10 minutes; he sometimes needs to use a table to lower himself into a chair; he finds it difficult to get out of bed; he is able to turn his neck; he can bend down although sometimes it is hard to get up; and he can lift a light item from knee level.
I am satisfied on the basis of the evidence that Mr Iliovski can be considered to have a moderate functional impairment under Table 4 – Spinal Function. I note that a number of the descriptors for only ‘no’ or ‘mild’ functional impairment appear to be met. However, on the basis of the finding by AAT 1 in regard to Mr Iliovski’s difficulties with getting in and out of a chair, he meets the moderate impairment rating. As noted, this was conceded by the Respondent.
I am not satisfied that there is sufficient evidence to support the submission made on Mr Iliovski’s behalf that his limitations meet any of the functional descriptors for a severe impairment under Table 4.
Wrist condition
I am satisfied that Mr Iliovski has a permanent condition of the right wrist.
In a report dated 9 September 2019 (Exhibit A4), Dr Wafek states that the condition affects the function of Mr Iliovski’s dominant right hand. Specifically, he reports that: there is ‘very limited’ flexion and extension across the right wrist; is unable to lift more than 2 kg; and is unable to use his dominant hand for grooming and personal hygiene. Dr Wafek states here that ‘His right wrist condition has been the same since February 2017’.
AAT 1 notes that evidence was given that Mr Iliovski was able to carry ‘perhaps two litres of milk or a few things in a shopping bag’. The evidence was also that he could ‘manage his personal care, slowly, as he lives alone’. Further, Mr Iliovski gave evidence that:
… he has adapted to his limited mobility in his right arm and uses his left hand to do most things, which sometimes causes him left shoulder pain. He can carrying [sic] shopping bags of about two kilograms and can do up buttons and pick up coins with his left hand. Mr Iliovski also reported being able to reach out and pick up objects such as an empty cardboard box.
At the hearing, Mr Iliovski stated that he has trouble using his right hand as his grip does not work, and needs to use his left hand instead. He finds normal hygiene very hard including having difficulty removing and cleaning his dentures. He ‘can hardly wash’ himself, has difficulty cleaning the house and holding a mop. His children take turns to visit and help with things including doing the laundry. Mr Iliovski stated that he cannot chop or carve food.
The relevant Impairment Table in this instance is Table 2 – Upper Limb Function. I note that this Table relates to conditions causing ‘functional impairment when performing activities requiring the use of hands or arms’. That is, notwithstanding any particular level of impairment in a single hand or arm, I understand the impairment assessment to be an overall assessment of upper limb function bilaterally.
I consider the oral evidence given by Mr Iliovski to AAT 1 and at the hearing in this application to be relatively consistent. This evidence indicates some weaknesses on the right side, and this accords with Dr Wakef’s assessment. This weakness appears to amount to a relatively pronounced disability of the right hand which interferes with a range of simple daily tasks. I accept that AAT 1 found that Mr IIiovski was able to compensate with his non-dominant hand.
There are some gaps in the evidence with respect to the state of Mr Iliovski’s functional impairment as at the qualification period. Notwithstanding this, I consider the medical evidence sufficient to evidence his condition as at this time. I also consider it sufficient to substantiate the more recent material, including evidence at the two hearings, as to Mr Iliovski’s functional capacity.
I am not satisfied, however, on the evidence as it currently stands, that the descriptors for a mild impairment assessment are met at all. I make this finding on the basis that the impairment must take into account functionality bilaterally, that is, based on both upper limbs.
Prostate condition
Before considering an impairment assessment for Mr Iliovski’s prostate condition I need to determine whether it is permanent in the required sense.
I set out below a summary of the condition based on reports from Royal Melbourne Hospital contained in Exhibit A2 (citing the dates of correspondence or reports):
(a)biopsy in 2010 for elevated PSA of 7 to 8 (10 June 2015);
(b)PSA was approximately eight in 2012 (28 January 2015);
(c)recent PSA has come down to 4.25 (15 February 2013);
(d)PSA level of seven in October 2013 (7 February 2014);
(e)PSA level of 5.5 in January 2014, if stays stable and does not go above 7.5 then follow up by GP (7 February 2014);
(f)PSA levels have ranged between four and eight over past three to four years (28 January 2015);
(g)‘On this occasion’ PSA is 8.95, ‘no troublesome urinary tract symptoms’, recommend repeat biopsy in three months if PSA levels higher (28 January 2015);
(h)prostate volume of 40 cc on 28 May 2015 (10 June 2015);
(i)re-referred with elevated PSA of 10.9 (10 June 2015); and
(j)severe benign prostatic hypertrophy, prostate volume of 73 cc (17 June 2019).

Two further recent reports (Exhibit A1) should also be cited in more detail. Mr Rao’s report of 14 February 2020 states Mr Iliovski’s PSA levels ‘have been stable around 10’, and he is quite satisfied Mr Iliovski is not harbouring prostate cancer. The following symptoms are described: worsening poor stream; urgency; frequency; incontinence; and, dribbling which ‘has a moderate to severe effect on his quality of life’. He notes that the prostate volume is 73cc and explains a change of medication: ‘has been on Tamsulosin and today I have switched him to Duodart which should give an additional 20-30% improvement’. Mr Rao states that surgery is also an option but only if medication fails to alleviate his symptoms and that ‘Adequate treatment will reduce his urinary bother’.
The report of Dr Wafek dated 2 March 2020 states that Mr Iliovski has had BPH since 2013 with: obstructive urinary symptoms of frequent urination; hesitancy; a feeling of incomplete emptying of the bladder; and, dribbling. With respect to the PSA condition, Dr Wafek states this has ‘remained unchanged since February 2017’.
Mr Iliovski has received medical treatment for this condition on a relatively regular basis for what may be the past ten years. During this time he has had a fluctuating PSA level which appears to have then risen over time and, as I read the evidence, possibly stabilised at around ten from approximately 2015. Over the same timeframe his prostate appears to have changed in volume, apparently quite significantly. This change takes place through the qualification period and up to 2019. Moreover, Mr Iliovski appears to be continuing to receive treatment recommendations with respect to the optimal response to his BPH.
While there is something of a lacuna in respect to diagnostic evidence for the qualification period, based on the material provided on the Applicant’s behalf, I am not satisfied that Mr Iliovski’s prostate condition can be considered permanent at that time. I accept that Mr Iliovski appears to be suffering certain symptoms that may well be inconvenient or disruptive, however I am not required to undertake the next step which is to assess the impairment caused by this condition.
Continuing inability to work
It is not necessary to consider this given the outcome of the considerations set out above.
Summary
Based on the above considerations, I find that Mr Iliovski’s conditions result in an overall impairment rating of 10 points for his spine. I am unable to allocate an impairment rating for the wrist, based on current evidence. As noted, I cannot rate the impairment arising from the prostate condition due to the fact that the evidence indicates it was not permanent as at the qualification period.
CONCLUSION
I explained to Mr Iliovski and his representative at the hearing that the Applicant is able to reapply for the DSP at any time. I also explained it was possible that even if a cumulative impairment rating reached 20 points, that the requirement for a continuing inability to work may deny Mr Iliovski the outcome he desired in respect of his current application. Ultimately, I am not required to consider this issue as the Applicant did not meet the qualifying criteria.
DECISION
For the reasons given above, the Tribunal affirms the decision under review.

I certify that the preceding 54 (fifty-four) paragraphs are a true copy of the reasons for the decision herein of Dr Stewart Fenwick, Senior Member

......................[sgd]..................................................
Associate
Dated: 31 March 2020

Date of hearing: 13 March 2020

Advocate for the Applicant: Mr Steve Taleski

Solicitors for the Respondent: Ms Maleah Underhill
Services Australia

[2020] AATA 686

31 March 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Appeal

Date of hearing:	13 March 2020
Advocate for the Applicant:	Mr Steve Taleski
Solicitors for the Respondent:	Ms Maleah Underhill Services Australia