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

Kovacevic and Secretary, Department of Social Services (Social services second review) [2021] AATA 76 (28 January 2021)

Division:GENERAL DIVISION
File Number(s): 2019/0909
Re:Adrian Kovacevic
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

Decision

Tribunal:Member G Hallwood
Date of decision: 28 January 2021
Place:Adelaide

The decision under review is set aside and the matter is remitted to the Chief Executive Centrelink for reconsideration in accordance with the direction that:

Mr Kovacevic’s claim for disability support pension is to be reassessed on the basis that he satisfies ss 94(1)(a), (b) and (c) of the Social Security Act 1991 and has done so since the date of claim. This means that subject to all other requirements of the Act being met, Mr Kovacevic is eligible to receive DSP from the date of claim.

....................[sgnd]....................................

Member G Hallwood

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – claim for disability support pension rejected – whether applicant’s conditions were fully diagnosed, fully treated and fully stabilised during the qualification period – whether applicant’s conditions attracted an impairment rating of at least 20 points – whether applicant participated in a program of support – whether applicant exempt from program of support - whether applicant had a continuing inability to work – decision under review set aside

LEGISLATION

Social Security Act 1991

Social Security (Administration) Act 1999

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

Social Security (Active Participation for Disability Support Pension) Determination 2014

CASES

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

Gallacher v Secretary, Department of Social Services [2015] FCA 1123

Hudson and Secretary Department of Family and Community Services [2000] AATA 502

REASONS FOR DECISION

BACKGROUND

On 7 July 2017 Mr Kovacevic lodged a claim for Disability Support Pension (DSP) dated 5 July 2017.[1] Mr Kovacevic’s claim included a list consisting of the following conditions:
[1] T10, pages 114-145
¾Gout
¾Hypertension
¾Obesity
¾Osteoarthritis
¾Problems with right hip and thigh due to back
¾Left hip wearing out
¾Knees wearing out
¾Carpal Tunnel
¾Sleep Apnoea
¾Right leg 9mm shorter than left leg
¾Cholesterol
¾Pins and needles down both legs and feet[2]
[2] T10, page 141
The Department of Human Services (the Department) rejected the DSP claim on 19 January 2018[3] and on 24 July 2018 an Authorised Review Officer (ARO) found the decision to reject the claim was correct[4].
[3] T19, pages 364-365
[4] T3, pages 16-24
The ARO had found that Mr Kovacevic did not have an impairment rating of 20 points or more and that as a result he did not satisfy s 94(1)(b) of the Social Security Act 1991 (the Act).
Mr Kovacevic sought a review of the ARO’s decision and on 29 January 2019 the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT 1) affirmed the decision under review.[5]
[5] T2, pages 7-15
On 18 February 2019 Mr Kovacevic applied for a further review by the General Division of the Administrative Appeals Tribunal (the Tribunal) and that is the matter currently before the Tribunal.
Mr Kovacevic appeared before the Tribunal on 22 January 2020. He also called two witnesses; his GP Dr Anthony Crentsil, and his previous employment services provider, Ms Angela Sunman. The Secretary was represented by Ms Odgers. After taking evidence and hearing from both parties, and due to difficulties reaching Ms Sunman by telephone, the hearing was adjourned to 14 February 2020 when this evidence was heard, and the hearing completed.
The Secretary provided 336 pages of tribunal papers (T). Mr Kovacevic provided various further documents which were admitted as evidence as items A1-A20. The Secretary provided program of support calculations at R1. The Secretary also provided a Statement of Facts, Issues and Contentions (SoFICs) of 15 pages including the Secretary’s list of authorities, together with SoFICs Annexures A through H. The Tribunal’s decision has regard to the documented evidence as well as the oral evidence given at the hearing.

ISSUES

The Tribunal is asked to decide whether Mr Kovacevic qualified for a DSP on the date he lodged his claim or within 13 weeks of that date (‘the qualification period')[6] between 7 July 2017 and 6 October 2017.
[6] Schedule 2, s 4(1) of the Administration Act
The issues to be determined are whether, in the qualification period, Mr Kovacevic had:
¾A physical, intellectual or psychiatric impairment;
¾If yes, an impairment rate of at least 20 points against the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (‘the Impairment Tables’);
¾If yes, a continuing inability to work (‘CITW’).
THE LEGISLATION AND RULES
DSP is an income support payment for people with a disability that prevents them from working at least 15 hours per week.
The relevant law is contained in the Social Security Act 1991 (‘the Act’) and the Social Security (Administration) Act 1999 (‘the Administration Act’). Also of relevance are the Impairment Tables, and the Social Security (Active Participation for Disability Support Pension) Determination 2014 (‘the Participation Determination’).
To medically qualify for a DSP a person must meet the qualification criteria set out in subsections (a), (b) and (c) of s 94(1) of the Act:
94 Qualification for disability support pension
(1) A person is qualified for disability support pension if:
(a) the person has a physical, intellectual or psychiatric impairment; and
(b) the person's impairment is of 20 points or more under the Impairment Tables; and
(c) one of the following applies:
(i) the person has a continuing inability to work;
(ii) the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system…
The second requirement of s 94(1)(c) is not necessary if a person has a severe impairment of 20 points or more under a single Impairment Table.
To qualify for a DSP it is necessary to meet all of these criteria, and, the impairment must be present at the time of the claim or within the following 13 weeks, as set out in the Administration Act at s 4(1) of Schedule 2.
Section 26(1) of the Act provides that the Minister may, by legislative instrument, determine tables relating to the assessment of work-related impairment for DSP.
The tables to be applied are contained in the Impairment Tables in accordance with s 27 of the Act.
The rules for applying the Impairment Tables (’the Rules’) are contained in the Impairment Tables.
Section 6(1) of the Rules provides that a person's impairment is to be assessed on the basis of what the person can, or cannot do, not on the basis of what the person chooses to do or what others do for the person. Impairment is defined to mean a loss of functional capacity affecting a person's ability to work resulting from the person's condition.
Sections 6(2) and 6(3) of the Rules set out that the Impairment Tables may only be applied after the person's medical history has been considered, the condition causing the impairment is permanent, and the impairment is likely to persist for more than two years.
Sections 6(3) to 6(7) of the Rules require a condition to be fully diagnosed, fully treated and fully stabilised (‘FDTS’), and likely to persist for more than two years in order to be considered permanent.
Section 6(5) of the Rules requires that in determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner, and whether the condition is fully treated, consideration is to be given to:
(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 within the next two years.

Section 6(6) states that a condition is fully stabilised if:
(a)the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement enabling the person to undertake work within the next two years, or
(b)the person has not undertaken reasonable medical treatment for the condition and:
(i)significant functional improvement to a level enabling the person to undertake work in the next two years is not expected to occur, even if the person undertakes reasonable medical treatment, or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable medical treatment.

For the purpose of s 6(6), s 6(7) states that reasonable medical treatment is:
(a)available at the location reasonably accessible to the person;
(b)is at a reasonable cost;
(c)can reliably be expected to result in a substantial improvement in functional capacity;
(d)is regularly undertaken or performed;
(e)has a high success rate; and
(f)carries a low risk to the person.

CONSIDERATION

Mr Kovacevic is 54 years old. He reached year 11 at high school and took up the trade of fitter and turner.
Mr Kovacevic has not worked for over a decade and in 2016 his DSP was cancelled by Centrelink following a review of his qualification.
Mr Kovacevic described a long history of problems with his wrists and hands caused by carpal tunnel syndrome and joint problems. He also suffers from low back pain.
In 2014 Mr Kovacevic had a total hip replacement. He still has hip pain and his right leg is 9mm shorter than his left leg. He also has gout in his toes.
Mr Kovacevic also described obstructive sleep apnoea which causes him to sleep poorly. He uses a CPAP machine.
In describing why he claimed the AAT 1 decision was wrong Mr Kovacevic stated:

“Finished program of support early because I was advised to apply for DSP and mobility allowance as I could not even complete a course WISE Employment got me to do, couldn’t hold papers to read them or pen to write answers”.

Issue 1 – Does Mr Kovacevic have impairment?

In order to be considered for DSP it is necessary to have impairment. There is no dispute and the Tribunal finds on the medical evidence that Mr Kovacevic has impairments that can affect his ability to work and which satisfies the first criteria in s 94(1) of the Act.

Issue 2 – Does Mr Kovacevic’s impairment attract a rating of 20 points or more?

The second requirement for a person to qualify for DSP is to achieve a rating of 20 points or more under the Impairment Tables at the time of lodging the claim or within 13 weeks of that. The qualification period in this case is from 7 July 2017 to 6 October 2017. The Tribunal cannot consider medical problems or developments that have arisen after that time. Such issues can only be addressed by a new claim.
For a condition to be assigned an impairment rating under the Impairment Tables the condition must be considered permanent.[7]
[7] Sections 6(3) and (4) of the Impairment Determination
A condition is permanent if it is fully diagnosed by an appropriately qualified medical practitioner, fully treated and fully stabilised.[8]
[8] Sections 6(5), (6) and (7) of the Impairment Determination
Once a condition has been fully diagnosed, fully treated and fully stabilised, it is accepted as being permanent if the impairment that results from the condition is more likely than not, in the light of available evidence, to persist for more than two years.[9]
[9] Section 6(4) of the Impairment Determination
The conditions Mr Kovacevic listed in his claim form[10], and which were diagnosed as present and symptomatic by appropriately qualified medical practitioners within the qualification period were:
i.Upper limb conditions: bilateral carpal tunnel[11]; osteoarthritis in thumbs and fingers[12]; and right elbow olecranon bursa thickened.[13]

ii.Lower limb conditions: left hip degenerative disease[14]; moderate synovial hypertrophy of left hip[15]; right total hip replacement[16] ; possible femoral fracture and complications of an intra medullary rod in right hip[17]; gout[18], modest medial tibiofemoral joint narrowing in knees bilaterally[19]; bilateral leg parasthesia[20]; and leg length discrepancy with right shorter than left.[21]
iii.Spinal conditions: lower lumbar spine degenerative joint disease[22]; L4-5 disc protrusion with nerve impingement[23]; advanced spondylosis at L5-S1[24]; and moderate thoracic kyphosis.[25]
[10] See paragraph 1 above
[11] A8, page 13
[12] T16, page 294
[13] A8, page 13
[14] T16, page 293
[15] A8, page 13
[16] T16, page 293
[17] T16, page 295
[18] T16, page 295; A7, page 12
[19] T16, page 294; A8, page 14
[20] A8, page 14
[21] T16, page 296
[22] T16, page 293
[23] T16, page 317; A7, page 12; T16, page 306
[24] T16, page 306
[25] T16, page 295
Mr Kovacevic’s hypertension, sleep apnoea, and diabetes, while diagnosed, had no symptoms attached to them during the qualification period and so were not considered to contribute toward preventing Mr Kovacevic from working, and were not assessed against the Impairment Tables.
Upper Limb Conditions
On 16 March 2009 Dr John Fewings, neurologist, confirmed bilateral carpal tunnel syndromes using nerve conduction studies;[26] and on 15 April 2009 Dr Buki Oloruntoba, orthopaedic surgeon, indicated that Mr Kovacevic’s left carpal tunnel should be treated initially using a wrist splint with a possible surgical release in the future.[27]
[26] T16, page 262
[27] T16, page 267
On 22 April 2016 Dr W Issah, GP, stated that Mr Kovacevic’s bilateral carpal tunnel syndrome (worse on left) had been treated using wrist braces and avoidance of prolonged handling but that consideration should be given to carpal tunnel release following further investigations.[28]
[28] T16, page 250
On 13 June 2017 Dr Marek Litwin, rheumatologist and general surgeon, in a report informed with the assistance of Andrew Spurrier, sonographer, stated:
“Andrew … did see quite significant carpal tunnel syndrome, symmetrical between two sides with proximal nerve enlargement and significant compression in the tunnel. The patient certainly has quite a positive Tinel’s sign at the carpal tunnels and modest wasting of the left thenar eminence”. [29]
[29] A8, page 14
Dr Litwin goes on to propose treatment, stating: “I think it would be most reasonable for him to have surgical release”.[30]
[30] A8, page 14
Mr Kovacevic indicated that he had been previously advised by a surgeon not to have a carpal tunnel release because of the long standing nature of his condition, but the Tribunal could find no evidence to corroborate this in the medical reports leading up to the qualification period which propose surgical intervention to treat this condition.
A report dated 13 June 2019 signed by Dr Oloruntoba states that he was not fully convinced surgery would alleviate the symptoms because of the challenges of other comorbidities and the chance of chronic regional pain syndrome following surgery.
Member Breen in Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs stated:
In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and in the subsequent 13 weeks).[31]
[31] [2012] AATA 922, [34]
The Federal Court in Gallacher v Secretary, Department of Social Services, affirmed the principle that medical reports written after the qualification period will only be relevant to the extent that they provide evidence as to the claimant’s condition during the qualification period.[32]
[32] [2015] FCA 1123, [25]-[29]
Based on the evidence available at the time of the application the Tribunal is satisfied that the carpal tunnel syndrome was fully diagnosed but not that it was fully treated or fully stabilised at the time of the application or within the qualification period. As such, the functional impact of this condition cannot be assessed against the Impairment Tables.
Mr Kovacevic’s osteoarthritis in his thumbs and finger joints is longstanding with excision recorded by Dr Felix Lim, orthopaedic surgeon, as far back as February 2001.[33]
[33] T16, pages 257-258
Just prior to the qualification period on 30 May 2017, Ms Rebecca Laurie, occupational therapist described Mr Kovacevic’s joint degeneration in his hands and its impact on his functioning.[34] There is nothing in medical reports leading up to lodgement of his claim that Mr Kovacevic’s arthritic hand conditions could be further treated, and the duration of the condition together with previous treatment satisfies the Tribunal that reasonable treatment had been undertaken and that any treatment within the next two years is unlikely to improve functioning.
[34] T16, pages 298-304
The Tribunal is satisfied that this longstanding and degenerative condition was fully diagnosed, fully treated and fully stabilised at the time of the application and can be assessed under the Impairment Tables.
On 13 June 2017, Dr Litwin diagnosed a thickened right elbow olecranon bursa and noted that this was not definitively tophaceous but did not describe any treatment or symptoms for this condition.[35]
[35] A8, pages 13-14
Ms Laurie’s report of 30 May 2017 described the right elbow condition as right radius / ulnar and humerus fractures sustained in a car accident in 1987 with a plate still in-situ in the humerus. Ms Laurie’s report describes results of a Manual Muscle Strength Test (Gross) in relation to elbow flexors as Grade 5 bilaterally.[36] This result represents normal muscle strength.
[36] T16, pages 299-301
As there are no reported treatments in relation to the right elbow condition, and as this approach accords with the lack of symptoms, the Tribunal is satisfied that the right elbow condition should not be assessed against the Impairment Tables and that it is only the arthritic hand conditions that should be assessed against Table 2 – Upper Limb Function.
Table 2 - Upper Limb Function
Table 2 – Upper Limb Function (‘Table 2’) is used where a person has a permanent condition resulting in functional impairment when performing activities requiring the use of hands or arms.
One difficulty in this matter is separating the functional impairment resulting from the arthritic condition in Mr Kovacevic’s hands which has been found to be fully diagnosed, fully treated and fully stabilised; from the functional impairment resulting from the bilateral carpal tunnel syndrome which was found to be fully diagnosed, but not fully treated and fully stabilised at the time of application for DSP.
The most comprehensive testing of upper limb functionality at about the time of application was conducted by the occupational therapist, Ms Laurie, and this report describes combined reported effects of bilateral carpal tunnel syndrome, gout and joint degeneration in hands as including:
¾    pins and needles
¾    numbness
¾    joint pain
¾    decreased strength
¾    dropping items
¾    swelling particularly in middle and index fingers
¾    needing to look at hands or use of a mirror for visual support while completing fine motor activities such as tying shoelaces, tying pant ties, reaching for small objects.[37]
[37] T16, page 299
Ms Laurie used a battery of subjective and objective functional testing tools to find that Mr Kovacevic has significantly reduced strength, sensation and functional use of his hands, and utilises adaptive techniques to manage his pain. Relevantly to his arthritic condition are findings that Mr Kovacevic had lost protective sensation responses and feelings in his hands requiring him to watch when manipulating objects rather than rely on feel; was unable to form a pincer grip between his thumb and finger; was restricted with fine motor manipulation of small objects such as sorting buttons; and, had significantly reduced fine grip strength.[38] The Tribunal is not satisfied that other functional loss described related to the arthritic finger conditions.
[38] T16, pages 300-302

The Tribunal is satisfied that the descriptors for mild and moderate functional impact on activities involving upper limb function, as outlined in Table 2, are relevant to this matter. Relevant extracts from Table 2 are provided below.

5

There is a mild functional impact on activities using hands or arms.

1.    The person can manage most daily activities requiring the use of the hands and arms, but has some difficulty with most of the following:

a.    picking up heavier objects (e.g. a 2 litre carton of liquid or carrying a full shopping bag);

b.    handling very small objects (e.g. coins);

c.     doing up buttons;

d.    reaching up or out to pick up objects.

10

There is a moderate functional impact on activities using hands or arms.

1.    The 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.

In oral evidence Mr Kovacevic stated that he carries a one litre carton of milk and uses a one litre bottle to take water from the tank. He stated that he is unable to open drinks. He stated that he takes his button up shirt on and off over the top of his head because he is unable to do up buttons. He can tie laces if he can see them. When he cannot see what he is doing with his hands he struggles because he does not feel the items he is touching. He finds it difficult to use a keyboard and mouse but is able to access messages using his phone. He indicated that his descriptions of his condition were relevant to the qualification period. Mr Kovacevic told the Tribunal that he has had to adapt basic movements in order to function.
The Tribunal is satisfied that Mr Kovacevic’s inability to form a pincer grip makes it difficult for him to pick up a two-litre carton of liquid and handle very small objects such as coins. He told the Tribunal that he does not do up buttons and the Tribunal is satisfied with that evidence based on the medical and occupational therapy reports. This satisfies the Tribunal that he satisfies the criteria for a mild functional impact as a result of his arthritic hands.
While Mr Kovacevic regularly manages to pick up a one litre carton of liquid, and is more likely to be restricted from picking up light but bulky objects as a result of his carpal tunnel syndrome than as a result of his arthritic condition, his lack of pincer grip makes it difficult for him to hold or use a pen or pencil, do up buttons, and unscrew a lid on a soft drink bottle.
Although the function of using a standard computer keyboard could be equally affected by carpal tunnel syndrome and osteoarthritic finger and thumb joints, the Tribunal is satisfied, based on the coordination assessment undertaken by Ms Laurie, that Mr Kovacevic’s impaired finger opposition and restricted fine motor manipulation - both arthritic symptoms – make it difficult for Mr Kovacevic to operate a computer keyboard.
The Tribunal is satisfied that Mr Kovacevic has met the examples of moderate functional impact outlined from (1)(c) to (f) of Table 2. As this represents a majority of the examples listed for moderate functional impact, the Tribunal finds that Mr Kovacevic’s osteoarthritis of his thumbs and fingers has a moderate functional impact on activities which require use of his hands, and assigns 10 points under Table 2.
Lower Limb Conditions
It is not disputed by the Secretary, and the Tribunal is satisfied on the evidence, that Mr Kovacevic has longstanding hip and knee conditions that were fully diagnosed, fully treated, and fully stabilised when his DSP application was lodged.[39]
[39] SoFICs, page 7
The Secretary contends that Mr Kovacevic’s gout related foot pain was undertreated and should not be assessed against the Impairment Tables.
In a report dated 15 February 1995, Dr B W Kirkham of the rheumatology unit at Queen Elizabeth Hospital described polyarticular gout with large tophi since 1985 with treatment including Allopurinol at 500mg a day.[40]
[40] T16, page 223
On 12 April 2017 Dr Litwin noted that Mr Kovacevic had been using Allopurinol at 500mg daily but decreased to 200mg “about three years ago” with no perceptible alteration in his situation. Dr Litwin increased the dosage of Allopurinol to 300mg because he believed it was now possible the gout was under treated.[41]
[41] T16, page 294
As Mr Kovacevic has received the same medication for his gout in varying dosages for more than 20 years, the Tribunal is satisfied that the condition was fully diagnosed, fully treated and fully stabilised at the time he lodged his claim and that the variation in dosage was simply part of the treatment management of the condition.
For this reason, the Tribunal will assess Mr Kovacevic’s hip, knee and foot conditions against Table 3 – Lower Limb Function.
Table 3 – Lower Limb Function
Table 3 – Lower Limb Function (‘Table 3’) is used where a person has a permanent condition resulting in functional impairment when performing activities requiring the use of legs or feet.
Dr Issah, who was Mr Kovacevic’s GP in 2009 when he underwent an arthroscopy of his left knee, wrote in a report dated 20 March 2018 (after the qualification period) that Mr Kovacevic had difficulties standing for longer than 15 minutes, was unable to walk more than 200 metres without a rest, and was unable to kneel down.[42]
[42] T16, page 318
In oral evidence on 22 January 2020 Dr Anthony Crenstil, Mr Kovacevic’s GP since November 2018 (after the qualification period), stated that based on medical reports he had read and the medical problems he had seen, Dr Issah’s description of functional limitations described above were, he thought, consistent with what would have been expected in the qualification period.
The Tribunal is satisfied that the descriptors for mild and moderate functional impact on activities involving lower limb function, as outlined in Table 3, are relevant to this matter. Relevant extracts from Table 3 are provided below.

There is a mild functional impact on activities using lower limbs.

1. At least one of the following applies:

a. the person has some difficulty walking to local facilities (e.g. shops or bus-stop); or

b. the person has some difficulty walking around a shopping mall or supermarket without a rest; or

c. the person has some difficulty climbing stairs; and

2. At least one of the following applies:

a. the person is unable to stand for more than 10 minutes;

b. the person can mobilise effectively but needs to use a lower limb prosthesis or a walking stick.

There is a moderate functional impact on activities using lower limbs.

1. At least one of the following applies:

a. the person is unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities; or

b. the person is unable to use stairs or steps without assistance; or

c. the person is unable to stand for more than 5 minutes; and

2. The person is able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket.

3. This impairment rating level includes a person who can:

a. move around independently using a wheelchair and can independently transfer to and from a wheelchair (e.g. can use a wheelchair accessible toilet independently); or

b. move around independently using walking aids (e.g. quad stick, crutches or walking frame).

Note: The person may require additional time and effort to move around a workplace, may need to use disabled access entries, lifts and toilets, and may not be able to access some areas of a workplace or training facility.

In oral evidence, Mr Kovacevic stated that at the time of his application he could walk 200 metres and for 15 minutes. He has used a walking stick for years and is considering using a walking frame in the near future for extra support. He cannot use public transport because he cannot navigate the steps. He can drive to the shops although he is usually taken there. He can walk short distances within shops before needing to sit down. He can sometimes use stairs.
Under the moderate functional descriptors of Table 3, the Tribunal is satisfied that Mr Kovacevic matches the examples in: 1(a) in only being able to walk 200 metres; and, 2 by being able to use a motor vehicle and walk around in a shopping centre or a supermarket; and is included at 3(b) as he moves around independently using a walking stick.

For these reasons the Tribunal is satisfied that Mr Kovacevic’s lower limb conditions have a moderate functional impact on activities using his legs and feet and assigns 10 points under Table 3.
Spinal Conditions
The Secretary contends that in the qualification period, Mr Kovacevic’s spinal conditions were not fully diagnosed, fully treated and fully stabilised in the qualification period precluding assignment of an impairment rating.
On 22 April 2016 Dr Issah indicated that Mr Kovacevic had received a cortisone injection in treatment of osteoarthritis of the spine and large disc bulges at right L4-5 and that he was referring for spinal surgery.[43] The large right L4-5 disc bulge had been identified by Dr Nicholas Brett in an imaging report of 15 April 2013.[44]
[43] T16, pages 252-253
[44] T16, page 278
On 25 November 2016 the Royal Adelaide Hospital (RAH) Spinal Assessment Clinic found no evidence of an active radiculopathy or spinal claudication and recommended the continuation of a conservative approach including exercise, physiotherapy direction about postural improvement, hydrotherapy together with membrane stabilisers, analgesia and fish oil.[45]
[45] T16, page 313
Imaging by Dr Wells[46] and Dr Raeside[47] just prior to and just after Mr Kovacevic lodged his claim indicate respectively: advanced spondylosis at L5-S1 and advanced bilateral facet arthropathy at L4-5 with broad based posterior disc protrusion; and, disc protrusion far lateral L4-5 contacting right L4 nerve root. Dr Raeside carried out a CT guided nerve root injection in July 2017.
[46] T16, page 306
[47] T16, page 317
In the lead up to, and within the qualification period, the symptoms resulting from spinal conditions included in medical reports comprised low back pain[48], low thoracic back pain and slight restricted movement through the lumbar spine.[49]
[48] A7, page 12
[49] T16, pages 294-295
Mr Kovacevic told the Tribunal, and the Tribunal is satisfied, that he maintains his own exercise program. Mr Kovacevic’s evidence, however, suggested that he chose which exercises he felt would help him rather than carrying out a medically recommended regime. He felt that a previous physiotherapy program had caused damage to his hip requiring further surgery.
In oral evidence Dr Crentsil said that some stretches had been recommended to Mr Kovacevic. The RAH outpatient letter of 25 November 2016 signed by senior physiotherapist, Sooraj Venugopalan, recommended regular exercises and hydrotherapy, and particularly mentions a focus on posture, neural glides and core stability.[50] Dr Crentsil was unable to confirm whether the recommended exercise program had been attempted or completed prior to the qualification period.
[50] T16, pages 313-314
There is insufficient evidence for the Tribunal to be satisfied that the specific exercise programs recommended by the RAH had been completed by the qualification period.
Given the lack of evidence in relation to the completion of recommended exercise programs together with the use of a nerve root injection within the qualification period, the Tribunal is not satisfied that the spinal conditions had been fully treated and fully stabilised at the time of the application or within the qualification period. For these reasons Mr Kovacevic’s spinal conditions were not assessed against the Impairment Tables.
Total Points
Mr Kovacevic has been assigned 10 points under Table 2 and 10 points under Table 3 for a total of 20 points. As Mr Kovacevic has been assigned 20 points or more against the Impairment Tables, he satisfies s 94(1)(b) of the Act.

Issue 3 – Does Mr Kovacevic have a continuing inability to work?

Section 94(2) of the Act sets out what is required for a person to have a continuing inability to work:

(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa) in a case where the person's impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support—the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a) in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b) in all cases—either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

Severe Impairment

A person has a “severe impairment” if their impairment scores 20 points or more under the Impairments Tables, of which 20 points or more are under a single Impairment Table.
The Tribunal has not found that Mr Kovacevic has a severe impairment as he has not been allocated 20 points or more under a single Impairment Table.
Program of Support
A person whose impairment is a severe impairment is not required to have participated in a program of support. In this case Mr Kovacevic does not have a severe impairment so is required to participate in a program of support within the meaning of s 94(3C) as well as satisfy s 94(2)(a) and (b) of the Act.
Generally, a person must participate in a program of support for 18 of the 36 months immediately prior to their date of claim.[51] In this matter the program of support period was from 6 July 2014 to 6 July 2017.
[51] Section 7(2) of the Participation Determination.
It is not in dispute, and the Tribunal is satisfied, that Mr Kovacevic participated in a program of support for a total of 315 days within the program of support period. This is less than the 548 days which equates to 18 months.[52]
[52] SoFICs, (Annexure G) page 20
There are exceptions to the program of support requirements where:
¾the person has completed a program of support that ran for a shorter period than 18 months;[53]
¾the program was terminated early, before the person claimed the pension, because the person was unable, solely because of his or her impairment, to improve his or her work capacity;[54] or
¾the person is participating in the program at the time of their claim but is prevented, solely because of his or her impairment, from improving his or her work capacity through continued participation.[55]
[53] Section 7(3) of the Participation Determination
[54] Section 7(4) of the Participation Determination
[55] Section 7(5) of the Participation Determination
Departmental records show that Mr Kovacevic was most recently involved in Post Placement Support with Wise Employment Whyalla prior to lodging his claim. These records show that the start date of the program was 25 January 2017 and the end date was 2 August 2017. The program end reason listed is “26-week Full Education Outcome claim approved”.[56]
[56] T13, page 172
The “Information about participation in a program of support” report completed by Ms Angela Sunman of Wise Employment dated 27 February 2019 states that Mr Kovacevic exited without completing the program “due to his medical condition”. The report goes on to state that the program was specifically designed to address Mr Kovacevic’s circumstances and states: “Adrian was unable to do simple work duties – therefore education in Certificate II in Community Services was started on 25 January 2017”. No end date was provided on the form. Further information about Mr Kovacevic’s participation details his involvement:
“Adrian’s program of support stopped due to his medical condition.
Employment was not an option due to his medical condition.
21/01/17 he commenced certificate 2 in community service. Adrian was unable to complete this training as he struggled to hold paper and write. On 12/04/17 WISE reviewed his situation and agreed to support Adrian with verbal training session.
Adrian’s mental health deteriorated and WISE referred him to Outback Community Health for counselling on 8/5/17.”[57]
[57] SoFICs (Annexure F) pages 11-15
A further “Information about participation in a program of support” report was completed by Ms Angela Sunman of Wise Employment and dated 24 June 2019. This report contained similar messaging; that Mr Kovacevic exited the program without completing in July 2017 because he had no capacity to work and there were no programs or services that Wise Employment could offer to improve his ability to work; that his exit was due to his medical condition; that Mr Kovacevic tried to comply with the programs objectives, and that he had been referred on to Outback Health.[58] Again no specific end date was entered on the form.
[58] SoFICs (Annexure F) pages 16-19
Mr Kovacevic’s Job Plan for the relevant period included 10 hours a fortnight of compulsory education or training with Ascent Training from 25 January 2017 to 25 July 2017; and 20 hours of voluntary work a fortnight with the Victims Support Group.
The Secretary contends that the best independent evidence of capacity was the Job Capacity Assessment (JCA) report dated 23 August 2017 which stated Mr Kovacevic would have work capacity of 15 to 22 hours per week within two years with the support and intervention of employment support services.[59] Mr Kovacevic says that he cannot achieve what the report suggests. The employment support services are similar to those set out in the JCA dated 2 June 2016[60] and which the service provider stated had not worked.
[59] T11, page 166
[60] T11, pages 146-156
Ms Sunman appeared before the Tribunal by telephone on 14 February 2020. She indicated that Mr Kovacevic was one of the most compliant customers Wise Employment had provided services to in Whyalla. She explained that Mr Kovacevic had attempted to complete the course of study online but had been unable to successfully use the keyboard. She indicated that Mr Kovacevic struggled to hold a pen or pieces of paper required to study. Even attempts to provide all of the training verbally had failed and Mr Kovacevic became distressed over time. Ms Sunman stressed that Mr Kovacevic was a keen participant and always willing to have a go. She stated that because he was unable to complete the course, the Department is notified there is nothing further Wise Employment can do.
When asked why no specific end date had been provided on the forms but that an end date in July was not consistent with the records of the Department that the program of support ended on 2 August 2017, Ms Sunman indicated that Wise Employment managed the program and input the dates into the system. Ms Sunman said that she did not wish to enter a date on the form that could conflict with Wise’s input. Ms Sunman speculated that the end date was when the system automatically recorded the end of the program, stating “completed only means 26 weeks were up”. When asked if Mr Kovacevic withdrew from the program Ms Sunman responded: “No. In the end it was a mutual decision that the verbal [course work] wasn’t working”. Mr Kovacevic had been referred to Outback Mental Health in May 2017 because “he was deteriorating, getting frustrated, getting sad”. Ms Sunman said that Mr Kovacevic was put on hold from the study because it was hoped that counselling provided by Outback Mental Health would work. Ms Sunman indicated one of the counsellors, Cheryl, recommended that Mr Kovacevic apply for a DSP. The Tribunal is satisfied that Mr Kovacevic did not complete a program of support that ran for a shorter period than 18 months and so finds the exception contained in s 7(3) of the Participation Determination was not met.

In considering whether the exception contained in s 7(4) of the Participation Determination was met, the Tribunal is satisfied that Mr Kovacevic’s program of support was terminated early because he was unable, solely because of his impairment, to improve his work capacity. The other element to this exception requires that the program was terminated before the person claimed the pension.
Mr Kovacevic lodged his claim for DSP on 7 July 2017 on the advice of one of his counsellors. On balance, and in particular taking into account the oral evidence of Ms Sunman, this advice was based on the fact that Mr Kovacevic was unable to complete his program of support because, solely on the basis of his impairment, he was unable to improve his work capacity.
The Tribunal is satisfied that the Departmental record of the end date of Mr Kovacevic’s program of support is based on either when the provider, Wise Employment, chooses to record the end date for their own administrative purposes, or when it is automatically recorded as the last day of the program of support. The facts, on balance, indicate that the program of support ended when the counsellor at Wise Employment told Mr Kovacevic to apply for DSP because he was unable to complete the program of support.
The Tribunal is satisfied on the evidence that Mr Kovacevic lodged his DSP claim after Wise Employment had determined he was unable to complete his program and before Wise Employment reported that he had “completed the course”.
For these reasons the Tribunal finds that Mr Kovacevic satisfies the exception contained in s 7(4) of the Participation Determination and is not required to have participated in a program of support for 18 of the 36 months immediately prior to his date of claim.
Inability to work
In testing for a continuing inability to work it is important to consider whether a person’s medical conditions prevent them working or participating in a training activity of 15 hours per week, in whatever type of work suits them best, given their medical problems that have been assigned ratings.
An undated medical report of Dr Issah’s in support of mobility allowance, that appears to be within or just prior to the qualification period, discusses the functional impacts of Mr Kovacevic’s lower limb conditions and answers “Permanent” to the question “Is the level of the patient’s difficulty or discomfort in using public transport (because of their disabilities, illnesses or injuries) likely to be permanent or temporary?”.[61]
[61] T16, page 310
The JCA report of 2 June 2016 had identified that Mr Kovacevic had a baseline work capacity of 8 to 14 hours a week and that with specialist disability employment interventions through a DES – Employment Support Service he would have a work capacity of 15 to 22 hours per week within two years.[62] As has been noted previously, the program to which he was referred did not progress him toward this goal and the report from Wise Employment supported by oral evidence from Ms Sunman states that Mr Kovacevic exited without completing the program of support because in “July 2017 Adrian’s capacity to work was non-existent and there were no programs or services we could offer to improve his ability to work”.[63] This report was not signed until 25 June 2019 and so was not available to inform the JCA report of 28 August 2017 which repeated the work capacity expectations of the June 2016 JCA report. Ms Sunman’s evidence in relation to Mr Kovacevic’s inability to work or study was based on his inability to use a keyboard, hold pens and paper as a result of his upper limb conditions. As discussed earlier the osteoarthritic conditions were considered to be degenerative and permanent.
[62] T11, page 154
[63] SoFICs (Annexure F) page 17
While the evidence does not allow for precise differentiation between carpal tunnel syndrome and osteoarthritic hand conditions, on balance the Tribunal is satisfied that Mr Kovacevic’s permanent conditions prevent him from undertaking work or training that would enable him to perform 15 hours per week of work within two years. He therefore has a continuing inability to work and satisfies s 94(1)(c) of the Act.

CONCLUSION

It was not disputed, and the evidence has satisfied the Tribunal, that Mr Kovacevic has impairments that can affect his ability to work and which meet the requirements of s 94(1)(a) of the Act.
The Tribunal assigned Mr Kovacevic 10 points under Table 2 – Upper Limb Function and 10 points under Table 3 – Lower Limb Function for a total of 20 points. Because Mr Kovacevic is assigned 20 points or more under the Impairment Tables he satisfies s 94(1)(b) of the Act.
The Tribunal finds that Mr Kovacevic satisfied the exception contained in s 7(4) of the Participation Determination and is not required to have participated in a program of support for 18 of the 36 months immediately prior to his date of claim. The Tribunal is satisfied that Mr Kovacevic’s permanent conditions prevent him from undertaking work or training that would enable him to perform 15 hours per week of work within two years. For these reasons the Tribunal finds that Mr Kovacevic has a continuing inability to work and satisfies s 94(1)(c) of the Act.
Mr Kovacevic therefore satisfies all parts of s 94(1) and qualifies for DSP subject to all other requirements of the Act being met.

DECISION

The decision under review is set aside and the matter is remitted to the Chief Executive Centrelink for reconsideration in accordance with the direction that:

Mr Kovacevic’s claim for disability support pension is to be reassessed on the basis that he satisfies ss 94(1)(a), (b) and (c) of the Social Security Act 1991 (the Act) and has done so since the date of claim. This means that subject to all other requirements of the Act being met, Mr Kovacevic is eligible to receive DSP from the date of claim.

I certify that the preceding 112 paragraphs are a true copy of the reasons for the decision herein of Member Hallwood

..........[sgnd].....................
Administrative Assistant Legal

Dated: 28 January 2021

Date of hearing:	22 January 2020; 14 February 2020
Advocate for the Applicant:	Self-represented
Advocate for the Respondent:	Ms Lee-Anne Odgers

[2021] AATA 76

28 January 2021

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