Kovacevich and Secretary, Department of Social Services (Social services second review) - [2022] AATA 2385

Kovacevich and Secretary, Department of Social Services (Social services second review) [2022] AATA 2385 (28 July 2022)
Division:GENERAL DIVISION
File Number: 2021/4685
Re:Jasna Kovacevich
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Mr S Evans, Member
Date:28 July 2022
Place:Sydney

The reviewable decision is affirmed
...........................................[Sgd].............................
Mr S Evans, Member
CATCHWORDS
SOCIAL SECURITY – application for disability support pension – interaction between Social Security Act 1991 (Cth) and Social Security (International Agreements) Act 1999 (Cth)- issue: whether the applicant was qualified to receive DSP –where applicant has multiple conditions – where some conditions are fully diagnosed but not fully treated or stabilised during relevant period – where some conditions are neither fully diagnosed nor treated – applicant does not meet the requirements of the Impairments Table – decision under review affirmed.
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1991 (Cth)
Social Security (International Agreements) Act 1999 (Cth)
CASES
Chen and Secretary, Department of Social Services [2019] AATA 3607
Fanning and Secretary, Department of Social Services [2014] AATA 447
Al-Janabi, and Secretary, Department of Social Services [2017] AATA 1541
Mohamed and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 470
SECONDARY MATERIALS
Social Security (Tables for Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
REASONS FOR DECISION
Mr S Evans, Member
28 July 2022
INTRODUCTION

Jasna Kovacevich (the Applicant) is an Australian citizen residing in Croatia. She lodged a claim for Disability Support Pension (DSP) which was refused by the Secretary of the Department of Social Services (the Secretary) as she did not have an impairment of 20 points or more under the Impairment Tables and is not severely disabled.
Background
The Applicant was born in June 1962 and began residing in Australia on 15 November 1982. On 14 July 1986 she became an Australian citizen. The Applicant resided in Australia until 26 August 1995 when she returned to Croatia, where she continues to reside. The Secretary has calculated that the Applicant resided in Australia for 666 weeks and 5 days.
The Applicant made her claim for an Australian pension under the agreement between Australia and Croatia on social security on 23 September 2019. On 6 January 2020, following an assessment by an International Disability Officer, the Applicant’s claim was rejected on the basis of her not having 20 or more points under the Impairment Tables.
The Applicant sought review by an Authorised Review Officer who affirmed the decision on 14 October 2020 and then by the Social Services and Child Support Division of the Tribunal (AAT1) which also rejected her claim on 9 June 2021. The Applicant now seeks review of the AAT1 decision (the reviewable decision) at the General Division of the Administrative Appeals Tribunal (the Tribunal).
LEGISLATION RELEVANT TO THE APPLICATION
Qualification for Disability Support Pension
DSP is an income support payment for people with a disability that prevents them from working at least 15 hours per week. Section 94 of the Social Security Act 1991 (Cth) (the Act) sets out the criteria for qualification for payment of DSP. Subsection 94(1) of the Act provides that to qualify for the DSP:
(a)a person must have a physical, intellectual or psychiatric impairment, or impairments; and
(b)the impairment(s) must be rated at 20 points or more in accordance with the Impairment Tables; and
(c)the person must have a continuing inability to work as defined in the Act.
The Impairment Tables referred to in s 94(1)(b) are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Determination). The Impairment Tables include rules for assigning a rating to determine the level of functional impact of impairments.
Subsection 5(2) of the Determination sets out the purpose and general design principles of the Impairment Tables. Section 6 provides that a condition can only be assigned an impairment rating if it is considered permanent. A condition is permanent if it has been fully diagnosed, fully treated and fully stabilised.
When applying the Tables, subsection 6(1) of the Determination requires that in assessing functional capacity:
(1) The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.
Subsection 8(1) of the Determination provides that when applying the Impairment Tables, symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.
The relevant period
When reviewing the decision, I am to consider the evidence as it relates to the 13 week period following application for DSP (“the relevant period”). The relevant period for the purposes of the reviewable decision is 23 September 2019 to 23 December 2019.
This is consistent with the approach outlined by Deputy President Handley in Fanning and Secretary, Department of Social Services[1] in which he observed:
Evidence, such as medical reports, that come into being after the relevant period may still be relevant, but only in so far as they are referrable to the applicant’s condition during the relevant period.
[1] [2014] AATA 447, [31]
Entitlement to make a claim
Ordinarily, in order to make a claim for a social security payment, a person must meet the general rule set out in section 29 of the Social Security (Administration) Act 1999 (Cth) (the Administration Act) which requires the applicant be an Australian resident and in Australia at the time they make a claim. Paragraph 94(1)(ea) of the Act provides that as an alternative to being an Australian resident, a person may qualify for DSP if they have been granted a determination for portability under section 1218AA or section 1218AAA of the Act.
It is not in contention that the Applicant is an Australian citizen who has resided permanently in Croatia since 28 August 1995 and was not an Australian resident when she made a claim for DSP. Nor is there any suggestion she was granted portability. As such, she does not meet the residence requirement or alternatives provided in paragraph 94(1)(ea) of the Act.
The Croatia Agreement
In 2003 Australia entered into a social security agreement with the Republic of Croatia (the Croatia Agreement). International social security agreements are given effect by the Social Security (International Agreements) Act 1999 (Cth).
Subsection 6(1) of the Social Security (International Agreements) Act 1999 (Cth) relevantly provides:
(1) The provisions of a scheduled international social security agreement have effect despite anything in the social security law.
Article 12 of the Croatia Agreement has the effect of exempting the Applicant from the residence requirement set out in section 29 of the Administration Act.
Article 2(1) of the Croatia Agreement relevantly provides that:
(a)     in relation to Australia:
(i)      the Acts and regulations forming the social security law in so far as the law provides for, applies to or affects the following benefits:
‑        age pension;
‑        disability support pension for the severely disabled;
The Secretary acknowledges an apparent inconsistency exists between paragraph 94(1)(c) of the Act and Article 2(1) and Article 4 of the Croatia Agreement, where Article 4 which provides for equality of treatment:
Subject to this Agreement, all persons to whom this Agreement applies shall be treated equally by a Party as its own citizens in regard to rights and obligations regarding eligibility for and payment of benefits which arise whether directly under the legislation of that Party or by virtue of this Agreement.
In order to satisfy paragraph 94(1)(c), a person may be required to participate in a ‘program of support’. Requiring applicants under the Croatia Agreement to obtain an Australian benefit by undertaking a program of support in situations where it is virtually impossible for them to do so arguably leads to a situation of unequal treatment between Croatian and Australian applicants.
Therefore, the Secretary proposes that the correct and preferable approach is the Applicant be required to satisfy paragraphs 94(1)(a) and (b) of the Act to qualify for DSP, while paragraph 94(1)(c) is in effect replaced by Article 2(1) for the purposes of DSP applications falling under the Croatia Agreement. Article 2(1) provides the DSP for the ‘severely disabled’, which is not defined in the Croatia Agreement, but is defined in subsection 23(4B) of the Act:
(4B) For the purposes of this Act, a person is severely disabled if:
(a) a physical impairment, a psychiatric impairment, an intellectual impairment, or 2 or all of such impairments, of the person make the person, without taking into account any other factor, totally unable:
(i) to work for at least the next 2 years; and
(ii) unable to benefit within the next 2 years from participation in a program of assistance or a rehabilitation program; or
(b) the person is permanently blind.
The approach proposed by the Secretary is broadly consistent with recent decisions of the Tribunal (albeit in relation to the agreement between Australia and New Zealand (the New Zealand Agreement)) that a person must satisfy both Article 2(2) and paragraphs. 94(1)(a) and (b) of the Act. I am directed to the matter of Chen and Secretary, Department of Social Services[2] where Senior Member R Pintos-Lopez notes that:
Article 2(2) is directed to a person, leaving the question of impairment being a necessary condition, being “totally unable to work” for a two-year period. The degree of impairment is not addressed such that Article 2(2) does not replace the requirement in s 94(1)(b) of the Act in relation to the requirement that the Applicant satisfy the Impairment Tables. It does, however, logically overlap and replace the requirement in s 94(1)(c) of the Act that the Applicant have a continuing inability to work. A continuing inability to work and a total inability to work cover the same ground. Taking into account the restrictive words contained in Article 2(2) of the Agreement, that the disability support pension “shall be limited”, the requirement of total inability to work is both a more onerous requirement than a continuing inability to work and a replacement for s 94(1)(c) of the Act.
[2] [2019] AATA 3607, [95]
In Al-Janabi, and Secretary, Department of Social Services[3], the Tribunal also considered Article 2(2) of the New Zealand Agreement to be a provision of limitation and concluded that the applicant was required to meet the requirements in paragraph 94(1)(c) in addition to a having a ‘total inability to work for the next two years’.
[3] [2017] AATA 1541, [29]
Although not defined in the Act, the Secretary proposes that the phrase ‘totally unable to work’ should be given its plain and ordinary meaning and refers to the policy contained in the Social Security Guide (the Guide). The Guide provides that where a work capacity assessment process is able to provide a recommendation of 0-7 hours, a person is ‘totally unable to work’.
This is a lower threshold than that which has been applied in matters such as Mohamed and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs[4] where the Tribunal observed that to be ‘totally’ unable to work would mean an applicant could not work at all.
[4] [2012] AATA 470, [23]
ISSUE TO BE DETERMINED
The issue to be determined by the Tribunal is whether the Applicant was qualified to receive DSP which requires she:
(a)has a physical, intellectual or psychiatric impairment, or impairments;
(b)has impairments rated 20 or more points in accordance with the Impairment Tables;
(c)Is totally unable to work.
DOES THE APPLICANT QUALIFY FOR DSP?
Evidence
Medical reports and translations
Unless otherwise stated, the medical evidence of doctors referred to in the following reasons has been taken from reports which were originally written in Croatian and subsequently translated into English by the Secretary.
In a written submission dated 11 July 2021 the Applicant writes that the AAT1 did not have sufficient translations of specialist neurosurgeon Dr Marcel Marcikic’s reports. She indicates that the reviewable decision was made on the basis of a poor translation of the medical reports or that the reports were absent. She told me that the documents provided prior to 22 January 2021 were not translated.
As this is a review de novo it is not strictly necessary for me to address the issues that the Applicant has raised in relation to the reviewable decision. However, as will become clear, the Tribunal had access to translated medical reports and documents generated prior to 22 January 2021. In the course of the hearing the Applicant was referred to many of these and provided opportunity to comment on them.
The Applicant’s circumstances
The Applicant gave evidence that prior to making her application for DSP, she had been caring for her husband, who had been very unwell, ‘24 hours a day’. She was required to do so in spite of having trouble ‘sitting up, sitting down, getting up and in general’[5]. She continued to care for her husband until he passed away in May 2020. The Applicant confirmed this included caring for her husband during the relevant period.
[5] Transcript of proceedings 4 April 2022, pg. 3
A letter dated 9 March 2017 from Dr Marcikic provides further detail regarding the Applicant’s caring duties. Dr Marcikic states that the Applicant was taking care of her husband from October 1994 and indicates that the demands of looking after her husband contributed to her medical conditions:
[the Applicant] was taking care of her husband since October 1994, in a sense of helping him to dress and put on his footwear, lifting him from bed, with hygiene maintenance, to obtain basic foodstuffs, meet his daily commitments and needs at his doctor’s, administrative needs, etc.
During this period of increased physical exertions, she became ill and she suffers from troubles connected to her spine, which reduced her work capacity, making her unable to perform heavier physical work.[6]
[6] T6/217
The Applicant gave evidence that during the relevant period she was able to look after herself because she had no choice but to do so. She is now cared for by her daughter who lives with her.
During the relevant period the Applicant could not leave her husband so relied on others to shop for her groceries. Her sister would help her do the laundry. Due to the medication she was taking, the Applicant was unable to drive a car and would accompany her husband to medical appointments in an ambulance.
The Applicant confirmed that her spinal condition had worsened since making her application for DSP and the qualification period. At the time of the hearing, she was expecting surgery would be required in the near future.
A translated Medical Certificate by Dr Marica M Kovacevic dated 23 February 2021 provides a general overview of the Applicant’s circumstances and conditions.[7]
[7] T22/350-352
Dr Kovacevic confirms the Applicant lives with her daughter who works part time and is devoted to caring for the Applicant. The Applicant’s daughter reported to Dr Kovacevic that she performs all the household chores because her mother is unable to perform these duties without her assistance.
CONSIDERATION
The Secretary accepts that the Applicant suffered from impairments during the relevant period and that paragraph 94(1)(a) of the Act is satisfied. Based on the evidence I agree with this assessment.
Impairment Tables
Having determined that the Applicant meets the requirements in paragraph 94(1)(a), the next issue for determination is whether the Applicant’s conditions were fully diagnosed, treated and stabilised during the relevant period, and if so, what rating may be assigned for functional impairment in accordance with the Impairment Tables.
Spinal conditions
In her application the Applicant writes she has been diagnosed with lumbosacral plexus disorder and spondylarthrosis of the lumbar and cervical spine.[8] Dr Marcikic completed a Treating Doctor’s Report[9] for the Applicant in Croatian and a certified interpretation of that report is in evidence.[10]
[8] T5/167
[9] T11/228-280
[10] T13/314-326
In the report dated 12 June 2019 Dr Marcikic confirms that the Applicant has been diagnosed with:
low back pain, chronic cervical inflammation in the spine, cervical disc degeneration disorder, degeneration of lumbar discs, partial paralysis of lower limbs, bilateral lumbar sacral spine – radiculopathy, bilateral cervical-thoracic radiculopathy, vertical lumbar scoliosis, sciatica, spinal disc herniations, arthrosis of the knee and perineural cysts.[11]
[11] T13/318
The Applicant contends that her spinal condition was fully diagnosed, treated and stabilised during the qualification period. The Secretary accepts that these conditions were fully diagnosed but contends they were not fully treated or stabilised during the qualification period and as such not eligible to be assigned an impairment rating.
Dr Marcikic reported that the treatment the Applicant was receiving ‘helps to relieve pain’ and ‘maintain her existing state of mobility’ but ‘cannot cure’ her condition. Where asked if there is any future treatment for the condition, he writes that ‘in terms of this, if it comes to crossing the nerve roots, then an operation may be considered’.[12] .
[12] T13/319
Asked what the expected benefit of such treatment would be, he writes ‘the expected benefit of a possible operation is the pain relief and the recovery of the [Applicant’s] painless mobility’.[13]
[13] T13/319
Dr Marcikic writes in the Treating Doctor’s Report that the Applicant was ‘unable to bend forward to pick up a light object at knee height’[14], which the Applicant confirmed at the hearing. She also confirmed she was able to bend forward and pick up a light object from a desk or table. However, the Applicant noted that she was taking pain medication and receiving injections at the time so that she could continue to care for her husband. The treatment also enabled her to sit for longer than 30 minutes at a time.
[14] T11/243
On 29 August 2019 general medical specialist Dr Ruza Bresic Pudar reported that examination and test procedures were carried out in order to determine the type and severity of illness. Dr Pudar confirmed that whilst the conditions were permanent, ‘further treatment and modern methods of medical rehabilitation to a greater extent’ would alleviate the negative consequences on the health and working ability of the Applicant.
Both Dr Marcikic and Dr Pudar indicate that further treatment and rehabilitation may prove beneficial and improve the Applicant’s spinal condition. Based on their reports, I am satisfied that the Applicant’s spinal condition was not fully treated and stabilised during the relevant period and therefore is ineligible to be assigned an impairment rating.
Stenocardia (precordial pain)
In the Treating Doctor’s Report Dr Marcikic states that the Applicant’s stenocardia was diagnosed by cardiologist Dr Kresimir Gabaldo on 12 February 2016.
Dr Gabaldo reported the Applicant was receiving medication for the condition and the ‘illness requires a long term treatment’ and ‘taking medication’.[15] She was taking drugs that control blood coagulation (Andol, Aspirin-Acetylsalicylic Acid) and ‘after ergometry a further treatment plan would be determined’.[16] Dr Gabaldo notes taking ‘the recommended medicines will prevent further deterioration of the condition (possible heart infraction)’.[17] He describes the impact of the condition as being difficulties arising ‘upon physical exertion like climbing steps, walking uphill and for a long distance and presents as rapid fatigue, breathlessness and tightness in the chest’[18].
[15] T13/315
[16] T13/315
[17] T13/316
[18] T13/316

The Treating Doctor’s Report also confirms that the Applicant can walk independently to local facilities without stopping to rest. She is also able to walk from a carpark into a shopping centre or building without assistance or perform day to day household activities without difficulty. However, it is recorded that the Applicant has limited capacity to participate in physical activity.
During the hearing the Applicant gave evidence that she needed to stop and rest along the way when going to the local facilities or shops but also that she takes medication to make these activities possible.
Where asked if the impact of this condition on the Applicant’s ability to function is expected to fluctuate in the next two years, Dr Marcikic writes ‘it is necessary to stabilize the heart rate by determining the right dosage and type of medication in order to reduce the health complications to a minimum’[19]. He opines that the condition is likely to deteriorate if the Applicant is exposed to severe physical exertion and ‘conversely’.[20] It is unclear if ‘conversely’ is a reference to the condition possibly improving if she avoids physical exertion or remaining stable.
[19] T13/317
[20] T13/317
Dr Marcikic writes that the Applicant must take the prescribed medications regularly and consult with a cardiologist on a regular basis in order to prevent further deterioration of the condition and ensure a lifestyle without health impediments.
Finally, Dr Marcikic states that following ergometry a further treatment plan will be determined to ‘prevent further deterioration of the condition’ in the form of a possible heart infraction. With reference to the ergometry, the Secretary contends that the Applicant’s stenocardia is diagnosed but not fully treated or stabilised as there is not information on any further treatment plan.
Rule 6(6)(a) for applying the Impairment Tables provides that a condition can be fully stabilised if 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. As Dr Marcikic reports that the purpose of the ergometry is to prevent further deterioration of the Applicant’s stenocardia, rather than improve the condition, I am satisfied that the condition is able to be assigned an impairment rating during the qualification period.
The Secretary contends that should the condition be assigned an impairment rating, the appropriate rating is 5 points under Table 1 - Functions requiring Physical Exertion and Stamina. Dr Marcikic agreed that the Applicant’s stenocardia caused her to have difficulties with completing physically active tasks around her home and community. However, he also reports that she could walk independently around a shopping centre, mobilise around her home, climb a flight of stairs and perform day to day household activities without difficulty as well as use public transport unassisted. By her own evidence, the Applicant was also caring for her husband during the qualification period which required some physical exertion.
Dr Kovacevic writes in a February 2021 report that the Applicant gasps and feels tired at the slightest effort, and during the physical examination the Applicant often asked for a break and experienced dizziness, However, the report is significantly after the relevant period and does not indicate if or how it relates to that time.
To be assigned 10 points under Table 1 a person must have difficulty performing day to day household activities such as changing the sheets on a bed or sweeping paths without experiencing symptoms of shortness of breath, fatigue or cardiac pain.
Having regard to Dr Marcikic’s observations, I am satisfied that the appropriate impairment rating for this condition during the relevant period is 5 points.
Lower limb conditions
The Secretary submits that the Applicant’s lower limb conditions were fully diagnosed but not fully treated and stabilised. I note that the Treating Doctor’s Report is incorrectly translated as Part D- Conditions Impacting Upper Limb Functions[21] but in fact relates to the Applicant’s lower limb conditions.[22]
[21] T13/321
[22] See T11/253
In the report Dr Marcikic confirms a diagnosis of lumboischialgia, neuroparesis perunei and bilateral gonarthrosis. He writes that the conditions are ‘chronic degenerative changes that will long term progressively deteriorate in the next period’.[23]
[23] T13/322
The Applicant was being treated with pain medications and physical therapy including the application of ice on her knee to help relieve pain and maintain her existing state of mobility, which are described by Dr Marcikic as being part of conservative treatment leading up to the qualification period.
Dr Marcikic indicates that surgery may be considered if the condition progresses in relation to the advancement of gonarthrosis or the occurrence of extensive disc herniation. Further treatment is considered to have the benefit of relieving pain and improving the Applicant’s mobility.
During the hearing the Applicant stated that her knee condition had worsened since 2019 and that she subsequently received injections which helped. The medical evidence in relation to this condition is sparse, The Applicant was uncertain when she received the injections but estimated it was towards the end of 2019 or possibly the beginning of 2020. She also confirmed she does not use a walking stick, which she explained was because it would be a hazard. She manages to walk using special shoes which aid balance and by taking medication.
In the Treating Doctor’s Report of June 2019 Dr Marcikic confirms that the Applicant is able to stand unaided for at least ten minutes and did not require use of a walking stick or lower limb prosthesis.[24]
[24] T11/257
As she was yet to undertake reasonable treatment for this condition during the qualification period, I am satisfied that the condition was not fully treated nor stabilised and cannot be assigned an impairment rating.
CONCLUSION
The Applicant’s conditions are eligible for a total impairment rating of 5 points under the Impairment Tables. As the Applicant’s impairments do not rate 20 or more points on the Impairment Tables, she is unable to satisfy s. 94(1)(b) of the Act. Without satisfying this requirement, her application cannot succeed and the reviewable decision will be affirmed.
DECISION
For the reasons stated above, the decision under review is affirmed.

I certify that the preceding 66 (sixty-six) paragraphs are a true copy of the reasons for the decision herein of

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Associate
Dated: 28 July 2022

Date(s) of hearing: 4 April 2022

Applicant: Appearing by Videoconference

Solicitors for the Respondent: Elizabeth Ulrick, Services Australia

Date(s) of hearing:	4 April 2022
Applicant:	Appearing by Videoconference
Solicitors for the Respondent:	Elizabeth Ulrick, Services Australia