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

[2017] AATA 1230

Lokanc and Secretary, Department of Social Services (Social services second review) [2017] AATA 1230 (9 August 2017)

Division:GENERAL DIVISION

File Number(s):      2015/5004 

Re:Franjo Lokanc  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member A Nikolic AM CSC 

Date:9 August 2017  

Place:Melbourne

The Tribunal affirms the decision under review

........................................................................
Senior Member

SOCIAL SECURITY – disability support pension – application for disability support pension refused  – whether applicant's medical conditions were fully diagnosed, treated and stabilised – whether impairments rated 20 points or more under the Impairment Tables – whether impairments rated 20 points or more under a single impairment table – decision under review affirmed

Legislation

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth) Schedule 2 Cl 4
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)
Accident Compensation Act 1985 (Vic)

Cases
Lokanc and Secretary, Department of Social Services (Social services second review) [2016] AATA 195
Lokanc v Secretary, Department of Social Services [2016] FCA 1134
Eid and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 558
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; 24 ALR 577
Shi v Migration Agents Registration Authority (2008) 235 CLR 286; 248 ALR 390

Uebergang and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 642

REASONS FOR DECISION

Senior Member A Nikolic AM CSC

9 August 2017

INTRODUCTION

1. The Applicant, Mr Franjo Lokanc, applied for a Disability Support Pension (DSP) on 16 March 2015 in respect of Multilevel Lumbar Disc Injury, Major Depression, Gastritis, Anaemia, and Diabetes.[1] His claim was rejected by Centrelink, both initially[2] and upon review by an Authorised Review Officer (ARO).[3] Centrelink is the service provider for the Department of Social Services (the Department).

   [1]           T-documents dated 21 October 2015 numbering 98 pages (and hereafter referred to as Exhibit 1),           pp.35-42.

   [2]           Exhibit 1, p.71.

   [3]           Exhibit 1, pp.76-80.

2. On 1 July 2015, Mr Lokanc requested a review of the ARO’s decision by the Social Services and Child Support Division of the Tribunal (AAT1). On 9 September 2015, AAT1 affirmed the decision.[4]

   [4]           Exhibit 1, pp.3-15.

3. On 24 September 2015, Mr Lokanc sought review of the AAT1 decision by the General Division of the Tribunal. The matter was heard on 22 February 2016. The Tribunal, differently constituted, affirmed the decision of AAT1 and provided oral reasons. On 8 March 2016, Mr Lokanc requested written reasons, which were published on 22 March 2016.[5] Mr Lokanc appealed the decision to the Federal Court of Australia, which set aside the Tribunal’s decision on 1 September 2016,[6] giving rise to these proceedings.

   [5]           Lokanc and Secretary, Department of Social Services (Social services second review) [2016] AATA          195.

   [6]Lokanc v Secretary, Department of Social Services [2016] FCA 1134.

4. The hearing was held on 23 June 2017 with the assistance of a Croatian interpreter. Mr Lokanc represented himself, gave evidence on oath and was cross-examined. The Respondent was represented by Mr Tim de Uray. 

5. For the reasons that follow, the decision under review is affirmed.        

   Background

6. Mr Lokanc was born in Bosnia and Herzegovina on 9 July 1954 and has lived in Australia since 19 June 1996. He became an Australian citizen in November 1998.

7. Mr Lokanc commenced work with Capral Aluminium Limited on 15 September 1997 as a machine operator. During the next five years he suffered three workplace injuries. The first two were lifting-related injuries to his back in December 1997 and March 2000 respectively.[7] The third was a back injury in 2002, which Mr Lokanc attributed to ‘a change in his packing work which incorporated more stooping and reaching, as well as with handling long lengths of timber used in packing frames’.[8] Mr Lokanc lodged a WorkCover case in the County Court following the 2002 injury and on 27 October 2007, was awarded almost $460,000 in lump sum compensation.[9] This meant he was precluded from social security benefits until March 2015 as a consequence of those proceedings. Mr Lokanc is married and lives in Melbourne with his wife and son. His wife receives Carer Allowance. 

   [7]           Exhibit 1, p.20.

   [8]           Exhibit 1, p.21.

   [9]           This document is contained in a bundle of documents from Mr Lokanc lodged with the Tribunal    between 26 November 2015 and 13 June 2017 (at p.32). The bundle is hereafter referred to as      Exhibit 2.

   LEGISLATIVE FRAMEWORK

8. Qualifying requirements for the DSP are set out at section 94(1) of the Social Security Act 1991 (Cth) (the Act).  It must be established that:

   (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;

9. In relation to section 94(1)(c)(i), a person has a ‘continuing inability to work’ if:

   (a)they have an inability to work due to their accepted impairments for 15 hours or more a week; and

   (b)they have actively participated in a Program of Support (POS).

10. Under section 94(3B) of the Act, participation in a POS is not required if the person has a severe impairment of 20 points or more under a single impairment table. The examples provided in this section encompass three scenarios:

    
    Example 1: A person’s impairment is of 30 points under the Impairment Tables, made up of 20 points under one Impairment Table and 10 points under another Impairment Table. The person has a severe impairment.
    
    Example 2: A person’s impairment is of 40 points under the Impairment Tables, made up of 20 points under one Impairment Table and 20 points under another Impairment Table. The person has a severe impairment.
    
    Example 3: A person’s impairment is of 20 points under the Impairment Tables, made up of 10 points each under 2 separate Impairment Tables. The person does not have a severe impairment.

11. Where a person’s impairment is not a severe impairment, however, they must have actively participated in a POS within the meaning of section 94(3C) of the Act. A person has ‘actively participated’ if they satisfy the requirements specified in a legislative instrument made by the Minister, which is titled Social Security (Active Participation for Disability Support Pension) Determination 2014. Sections 5 and 7 of that legislative instrument provide inter alia, that active participation requires participation in a POS, which is wholly or partly funded by the Commonwealth, for a period of at least 18 months during the 36 months prior to the date of claim.

12. The Impairment Tables referred to in section 94 of the Act are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination). The Impairment Tables assign ratings reflecting the level of functional impact a condition has on an applicant. Only medical conditions that are permanent, have been fully diagnosed, treated and stabilised, and are likely to persist for at least two years, can be allocated points under the Impairment Tables.

    ISSUES FOR THE TRIBUNAL

13. The key issues for determination by the Tribunal are:

    (a)What is the relevant period for Mr Lokanc’s claim?

    (b)Did Mr Lokanc have a physical, intellectual or psychiatric impairment(s) as defined under the Act during the relevant period?

    (c)If yes, were his impairment(s) capable of being assigned 20 points or more under the Impairment Tables during the relevant period?

    (d)If Mr Lokanc’s impairment(s) is/are of 20 points or more under the Impairment Tables, are 20 points assigned under a single Impairment Table (severe impairment)?

    (e)If Mr Lokanc did not have a severe impairment during the relevant period, but his impairment(s) nevertheless attract a rating of 20 points or more, does he have a continuing inability to work or has he participated in a POS?

    What is the relevant period for Mr Lokanc’s claim?

14. In accordance with clause 4(1) of Schedule 2 of the Social Security (Administration) Act 1999 (Cth), Mr Lokanc had to satisfy the DSP criteria on 16 March 2015 (the date he lodged his claim), or within the following 13 week period ending on 15 June 2015 (the relevant period).

    Did Mr Lokanc have a physical, intellectual or psychiatric impairment during the relevant period?

15. Medical reports in the T-documents confirm that Mr Lokanc suffers from a number of long standing medical conditions, including a Multilevel Lumbar Disc Injury, Major Depression and Gastritis. I find that Mr Lokanc had physical impairments during the relevant period that satisfy Section 94(1)(a) of the Act.

    Was Mr Lokanc’s impairment capable of being assigned 20 points or more under the Impairment Tables during the relevant period?

16. At Question 86 of his DSP application, Mr Lokanc states that as a result of his disabilities:

    ‘I CAN’T LIFT, STAND, SIT, STAY IN ONE PLACE. I USE A WALKING STICK. I HAVE PROBLEMS WITH MY DAY TO DAY LIVING.’

17. In assessing the impairment effect of Mr Lokanc’s medical conditions, the Centrelink ARO and two subsequent reviews by the Tribunal found that he should be awarded a total of 20 impairment points, made up of 10 points each under two separate Impairment Tables. In these previous reviews he received ratings falling within the description of ‘moderate’ in each of Table 4 – Spinal Function and Table 5 – Mental Health Function. Mr Lokanc was therefore found not to have a severe impairment. But my hearing of Mr Lokanc’s case is being conducted de novo and pursuant to the decision in Drake,[10] my obligation is to determine the ‘correct or preferable decision’ based on the available evidence. I am also not restricted to the evidence that was before the primary Centrelink decision-maker and have, in accordance with the decision in Shi,[11] considered all of the material tendered by Mr Lokanc, including material post-dating the original decision. My consideration of Mr Lokanc’s medical conditions and the impairment effect arising from them follows.

    [10]          Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; 24 ALR 577 at 589 per Bowen CJ and Deane J.

    [11]          Shi v Migration Agents Registration Authority (2008) 235 CLR 286; 248 ALR 390.

    Multilevel Lumbar Disc Injury

18. General practitioner Dr Manjula Arulanantham has been treating Mr Lokanc since August 2014. He completed a Medical Report in support of Mr Lokanc’s DSP application dated 11 March 2015.[12] Dr Arulanantham lists Mr Lokanc’s lower back pain as the ‘condition with most impact,’ diagnosing:

    ‘Lower back pain – significant due to injury with bilateral sciatica and numbness. Left worse than right.’

    [12]          Exhibit 1, pp.47-57.

19. Dr Arulanantham lists a date of onset for this condition as 2002 and states it had been confirmed by specialist opinion. He states that Mr Lokanc’s symptoms consist of pain and stiffness in his back, and pain/numbness in his calf, with the symptoms greater in the left than the right calf. He states that Mr Lokanc was ‘unable to sit or stand or work for long periods, cannot lift; and concentration impaired due to pain’. Under the heading ‘Current treatment’ Dr Arulanantham lists ‘Panadeine Forte’ and ‘Physiotherapy on + off’. He states that previous treatment had consisted of ‘Panadeine Forte, Mobic, Physiotherapy and Hydrotherapy’. He lists future/planned treatment as ‘ongoing monitoring of lower back pain; treat exacerbation with physiotherapy; and assess and change pain relief as required’. He states that Mr Lokanc was ‘usually compliant’ with the recommended treatment and that the effect of Mr Lokanc’s lower back pain would ‘fluctuate’ or ‘get worse’ in the following two years.

20. In a subsequent letter dated 18 November 2015, Dr Arulanantham states that Mr Lokanc ‘cannot sit or stand for prolonged periods’.[13]

    [13]          Exhibit 2, p.69.

21. Dr Clayton Thomas, a specialist in pain medicine, examined Mr Lokanc on 20 November 2015, which was five months after the relevant period. In a letter to Mr Lokanc’s GP dated 25 November 2015, Dr Thomas notes that he initially saw Mr Lokanc ten years earlier in 2005 and a ‘couple of times since’. Dr Thomas states:

    ‘He told me that he was able to walk for quite long distances but over the last 12 months his level of pain and disability have progressively worsened to the point that he now reports that he can only walk about 75 m and then he has to stop. His symptoms are progressing. The last time he worked was in 2002. His disability has worsened since that time. He has no capacity to return to work…his disability is only likely to worsen with time.’

22. I note a letter from Physiotherapist Mr Laurie McCormack sent to the Accident Compensation and Conciliation Service dated 27 September 2010,[14] which is almost five years before Mr Lokanc’s DSP application. Mr McCormack notes that Mr Lokanc first sought treatment for his lumbar pain on 24 February 1998, which Mr Lokanc attributed to overhead lifting of aluminium sections at work three months earlier. Mr McCormack states that Mr Lokanc attended for physiotherapy treatment between February and April 1998 and was then ‘discharged from treatment…with full pain-free lumbar movement’. Mr McCormack then records Mr Lokanc’s subsequent attendances from 25 May 2000 until September 2010. I have taken note of Mr McCormack’s synopsis of the treatment received by Mr Lokanc at Physio First during this period.

    [14]          Exhibit 1, pp.20-23.

23. A handwritten clinical record by Neurosurgeon Dr Graeme Brazenor was contained in the T-documents and date-stamped as received by the Tribunal on 9 September 2015.[15] Dr Brazenor diagnosed that Mr Lokanc had ‘worn out discs at three lowest levels…’ and recommended ‘no back exercises, physio…surgery last resort’. Dr Brazenor noted in his report that the success rate of surgical ‘fusion with Titanium instrumentation’ was 80 per cent, but was of ‘no benefit’ in 20 per cent of patients. He recommended that Mr Lokanc should wear a Low Taylor Back Brace ‘all the time’ for a ‘minimum of two years,’ and undertake a ‘walking program’. There is no evidence that Mr Lokanc followed up on Dr Brazenor’s recommendation of surgery as his symptoms worsened. I also note from Dr Rastogi’s report that when Mr Lokanc attended their consultation in September 2010, he was not wearing the ‘brace at present as it adds to discomfort’.[16] The evidence shows Mr Lokanc has continued to treat his increasingly severe back symptoms with pain medication and intermittent physiotherapy and hydrotherapy.

    [15]          Exhibit 1, pp.16-17.

    [16]          Exhibit 1, p.30.

24. A diagnostic report (CT) of Mr Lokanc’s lumbar spine dated 26 June 2015,[17] concludes:

    ‘Degenerative changes are present as described. Mild spondylolisthesis of L3 and L4. Disc bulging does extend into the left L3 nerve root canal as well as the right L4 nerve root canal as described.’

    [17]          Exhibit 2, p.61.

25. A diagnostic report (MRI) of Mr Lokanc’s lumbar spine dated 30 September 2015,[18] concludes:

    ‘L3-4 disc protrusion with central canal stenosis, left foraminal encroachment and contact with the left L3 nerve. Bilateral facet joint osteoarthritis.

    Mild central canal stenosis at L4-5.

    Non-compressive right paracentral disc protrusion at L5-S1.

    [18]          Exhibit 2, p.62-63.

26. I have also had regard to a five-year history of diagnostic reports, comprising x-rays, CT scans and MRI’s of Mr Lokanc’s lumbar spine prior to 30 September 2015.

    Submissions Regarding Multilevel Lumbar Disc Injury

27. During the hearing, on being invited to make his initial comments, Mr Lokanc delivered an opening submission of approximately two hours duration while standing. He submitted that his case was not previously determined according to law. He contends to being totally and permanently incapacitated, relying on the determination of his civil action in Victoria’s County Court, which granted him almost $460,000 in compensation.[19] The basis of this submission rests on the issuing of a Serious Injury Certificate on 19 July 2006 under Section 134AB(37) of Victoria’s Accident Compensation Act 1985. Mr Lokanc believes this constitutes evidence of his total and permanent incapacity, although I note that the degree of impairment determined in his civil judgement was ‘less than 30%’.[20] Mr Lokanc also referred to his wife’s receipt of Carer Payment as further evidence of his total and permanent incapacity. His submissions conflate the ‘serious’ nature of his workplace injury in 2002 under Victorian law, with the requirements for ‘severe’ impairment in a DSP context under Commonwealth law. Given Mr Lokanc’s repeated submissions in this regard, my efforts to explain the difference can only be regarded as unsuccessful.

    [19]          Exhibit 2, p.32.

    [20]          Exhibit 1, p.46.

28. During cross-examination, Mr Lokanc said he left his home for the hearing at approximately 8am that day, travelling by train for approximately 30 minutes and mainly stood during the train journey. In response to questions about the JCA in May 2015, Mr Lokanc said he had walked alone from his home in Jacana to the Broadmeadows Centrelink, which he estimated to be approximately 1 km. He said he used his walking stick during this journey. On checking the distance via Google Maps, I find that Mr Lokanc’s estimate is reasonably accurate. Dr Thomas’ report dated 25 November 2015 states that Mr Lokanc was only able to walk ‘about 75 m and then he had to stop.’ I do note, however, that Dr Thomas’ comment was in the context of Mr Lokanc’s self-reported deterioration of his back condition in the previous 12 months. I note also that Mr Lokanc’s evidence during AAT1 was that he ‘he could walk three kilometres’ in March 2015.[21] During the current hearing, Mr Lokanc stated that even today he got ‘most pleasure going for a gentle walk.’ 

    [21]          Exhibit 1, p.6.

29. Mr Lokanc agreed that an interpreter was present for the JCA but nevertheless felt dissatisfied with the JCA process, particularly because he considered the authors of the assessment were not qualified to comment about his back. This was a repetitive submission from Mr Lokanc, who was concerned that too much emphasis was placed on the JCA report, without due regard to the substantial medical records he provided. I repeatedly reassured Mr Lokanc that all of the available evidence would be considered, of which the JCA report was one component.

30. It is appropriate at this point to summarise what the JCA report concluded following the interview with Mr Lokanc. His spinal disorder was found to be fully diagnosed, treated and stabilised, with the assessors describing it as ‘long-standing and unlikely to significantly improve within the next two years’. In deciding to recommend a rating of 10 points for Mr Lokanc’s spinal disorder under Impairment Table 4 – Spinal Function, the JCA Report states in part that Mr Lokanc:

    ‘…was ‘generally independent with activities of daily living…lived with his wife and their two adult sons…He no longer drives…He said he walked to the assessment. He advised that he did the grocery shopping with his wife, and leans on the trolley for support. He said he could carry light loads but not heavier than 13kg…He said he was able to bend to table level and straighten up again but bending to knee level was difficult due to back pain…He said he was able to put on his own shoes and socks. He reported that sitting for 10-15 minutes was gradually painful. He was observed to sit during the assessment (about 45 minutes). He spoke of walking to and around his local shopping centre on a daily basis for about 30 minutes…’ 

1. Mr Lokanc recalled that the JCA interview was 45 minutes in duration and he sat for the whole time. He agreed that he told the JCA assessor he could shower and put on his socks, shoes and do up his shoe laces. Mr Lokanc demonstrated how he tied his shoelaces during the hearing, by sitting on a chair, crossing his right leg over his left, then leaning forward and placing his hands near the laces of his right shoe. In relation to his ability to bend, Mr Lokanc stated ‘I was asked whether I can bend to knees, I said yes I could, but with pain’. Mr Lokanc agreed that he told the JCA assessor he went grocery shopping with his wife and leaned on the trolley for support, but that he was not able to assist with carrying or lifting groceries because of pain. Mr Lokanc disagreed that he had ever told the JCA assessor he could carry light loads up to 13kg, but could not recall how much weight he said he could lift. The reference to 13kg was the key disagreement Mr Lokanc had with the factual accuracy of the JCA report.

2. Mr Lokanc said his wife did most of the chores around the house, but he could do light chores like washing some dishes or placing an item into a cupboard at shoulder height, although he could not sustain overhead activities without pain. He said his wife had always done the washing and cooking at home, but agreed he could take prepared items out of the refrigerator to make his lunch. In response to a question about the JCA Report’s reference to Mr Lokanc ‘…walking to and around his local shopping centre on a daily basis for about 30 minutes. He sometimes caught up with friends on these outings’, Mr Lokanc responded: ‘When we’d go shopping if we ran into someone we knew we’d acknowledge them, but nothing elaborate’. When asked about the t-shirt he was wearing and how he took it off, Mr Lokanc said he sat down and pulled it over his head.

3. In relation to his ability to drive and get in and out of a car, Mr Lokanc stated that he had not driven for some years, but still retained a licence. He said that his wife and son drove him to appointments to places like Broadmeadows, Moonee Ponds, and Epping – the latter being a 20 minute drive. He said he could ‘sit for an hour but then [could] not feel [his] body from the waist down’. He said he could bend forward to pick up a light object placed at knee height, ‘but not without pain’.

4. In light of his evidence during cross-examination, I asked Mr Lokanc if he continued to stand by the contention in his DSP application that he can’t lift, stand, sit or stay in one place. Mr Lokanc responded: ‘Yes’. I asked Mr Lokanc whether he agreed with the evidence recorded in the AAT1 reasons that in March 2015 he could only ‘walk three kilometres, sit for one hour and stand for 5 minutes’. Mr Lokanc responded in what I could only infer was a pejorative manner about the member constituting that Tribunal. I asked Mr Lokanc about the inconsistency between his previous evidence about his severely limited standing capacity, and the fact that he had stood for almost two hours to deliver an impassioned opening submission, and then remained standing for well over an hour of questions from the Respondent’s solicitor. I note in this regard Dr Arulanantham’s notation in the DSP Medical Report that Mr Lokanc was ‘unable to sit or stand’. Mr Lokanc agreed that he had stood for a prolonged period, but explained that he was experiencing discomfort and deadening in his lower body. In trying to clarify some of Mr Lokanc’s earlier responses about the impairment effect of his back condition during the relevant period, I had to remind him on a number of occasions to respond specifically to the questions he was being asked. On more than one occasion, I considered that Mr Lokanc was obfuscating and not being forthright in his responses. For example, in contrast to his earlier evidence during cross-examination about being able to visit the supermarket with his wife, when I asked Mr Lokanc whether he agreed with his evidence to the JCA and AAT1 that he ‘could get around the supermarket using the trolley for support’, he said he ‘couldn’t remember’. I again asked Mr Lokanc whether he considered the contentions in his DSP application that he could not sit, stand or bend to be true, and he again replied ‘Yes’.

   TRIBUNAL CONSIDERATION - MULTILEVEL LUMBAR DISC INJURY

5. The medical evidence in this case traverses a long history of back pain and progressive deterioration in Mr Lokanc’s back condition since 2002. I find that during the relevant period his Multilevel Lumbar Disc Injury was fully diagnosed, treated, stabilised and likely to persist in the subsequent two years. But I do not accept Mr Lokanc’s submission that he is unable to ‘lift, stand, sit, stay in one place’, or his evidence to AAT1 that he could only ‘stand for five minutes’.[22] That submission is at significant variance with the available evidence. I do not accept Dr Arulanantham’s evidence in his letter dated 18 November 2015 that Mr Lokanc ‘cannot…stand for prolonged periods’. I also do not consider that the reference in Dr Thomas’ letter dated 25 November 2015 about Mr Lokanc’s self-reported ability to ‘only walk about 75 m…’ accurately reflects Mr Lokanc’s ability to walk during the relevant period. This is because his evidence to AAT1 was that he could walk three kilometres in March 2015 and during this hearing, he agreed that he had walked alone from his home to the JCA assessment – a distance of approximately 1 km.

   [22]          Exhibit 1, p.6.

6. During the hearing, I observed Mr Lokanc stand for almost four hours, approximately two of which represented his opening submissions alone. He agreed that he could bend forward to pick up a light object at knee height – albeit with pain. He stated that was able to get in and out of cars, and demonstrated how he tied his shoe laces, which involved bending while seated. During cross-examination, Mr Lokanc agreed that most of the observations contained in the JCA report correctly reflected his responses during the assessment. I therefore do not consider that the available evidence supports Mr Lokanc’s contention (in his DSP application and orally at the hearing) that he could not lift, stand, sit, or stay in one place as a result of his back injury.

7. The correct impairment table for considering Mr Lokanc’s back condition is Table 4 – Spinal Function. I am satisfied that the descriptors for a ‘moderate’ functional impact were met during the relevant period. I find that there is insufficient evidence to justify a ‘severe’ functional impact for this condition on Mr Lokanc’s oral evidence alone. For a severe rating to be awarded, Mr Lokanc would be incapable of performing any overhead activities, or turning his head, or bending his neck without moving his trunk, or bending forward to pick up a light object from a desk or table, or remaining seated for at least 10 minutes. I therefore find that the assignment of 10 points for this condition was the correct decision.

   Major Depression

8. Dr Arulanantham’s DSP Medical Report states that Mr Lokanc has suffered from Major Depression since 2002 and that the condition had been confirmed by psychiatrist Dr Dileep Rastogi. He states that Mr Lokanc’s treatment was Zoloft and Valium (when required), with symptoms including ‘fluctuating mood, feels low, gets teary, low energy, feels frustrated that he can’t work’. Dr Arulanantham expected the condition to fluctuate in the following two years, but did not offer an opinion on how long the impact of depression on Mr Lokanc’s ability to function was expected to persist for.

9. In a subsequent letter dated 18 November 2015 to ‘Whom it May Concern’,[23] Dr Arulanantham states:

   ‘He cannot concentrate due to Chronic pain and Depression.’

   [23]          Exhibit 2, p.69.

10. In a medical letter dated 23 September 2010, Dr Rastogi states that Mr Lokanc’s Major Depression was in good remission and his Anxiety and Depression were related to claim-related problems.[24] Dr Rastogi states:

    [24]          Exhibit 1, p.30.

    He presented with some feelings of distress, dissatisfaction and annoyance that he had to go to conciliation very often.

    …All this makes him anxious and depressed.

    Present crisis was his seeing an Occupational physician, who wrote to work cover that the patient did not need pain killers, but rather non prescription medication…

    …

    He describes frequent pain in his back...He does not wear brace at present as it adds to discomfort…

    …

    As you know the patient suffers from Major Depression. This is in good remission. He continues to take – Zoloft 150 mgs a day, and Diazepam 5 mg 1 tab a day.

    He was not keen to increase either of these.

    Diagnosis

    Major Depression in good remission

    Anxiety and Depression related to the current pressures.

    Management

    Patient said he wanted to be able to let all these feelings off his chest.

    Supportive Psychotherapy.

    Medication – same as above.

11. Dr Rastogi’s assessment appears to have been unchanged by May 2015, when GallagherBassett, on behalf of the Victorian WorkCover Authority contacted Mr Lokanc in relation to his work-related claim. In a letter to Mr Lokanc dated 14 May 2015,[25] GallagherBassett advised that he was ‘no longer entitled to payment for medical and like services other than for Medical Practitioner and Chemist…’ That correspondence, states:

    ‘On 14 April 2015 GallagherBasett sent Dr D.S. Rastogi a questionnaire to… obtain details of your current treatment. Dr Rastogi advised that your condition is major depression which is now stable however you require ongoing medication such as Zoloft and Diazepam to treat your work related condition.’

    [25]          Exhibit 1, pp.27-28.

12. Where there is any inconsistency in the medical evidence relating to Mr Lokanc’s depression, I have placed greater weight on the opinion of specialist psychiatrist Dr Rastogi. Dr Arulanantham’s assessment that Mr Lokanc ‘cannot concentrate’ and had already been ‘certified by the Courts as being permanently disabled’, is clearly erroneous. I have therefore placed little weight on Dr Arulanantham’s evidence regarding Mr Lokanc’s depression. 

13. The AAT1 hearing on 9 September 2015 noted Mr Lokanc’s longstanding history of depression and ‘even though Dr Rastogi considered his depression was in remission in 2010, he has required ongoing medication and review’. The AAT1 reasons note Mr Lokanc’s evidence that:

    ‘He does not go out and has no friends. He can concentrate on the television for short periods and can only read a book for 20 minutes and then loses concentration.’

14. The JCA Report recorded Mr Lokanc’s comments about the impairment effects of his depression as:

    ‘…He said he no longer drives due to his reduced concentration levels, and relies on his wife and sons to drive him (or he walks locally). Mr Lokanc reported limited socialising due to his anxiety and feeling depressed, although he did mention at another time that he sometimes caught up with friends at his local shopping centre. Mr Lokanc spoke of reduced concentration levels, indicating that he no longer drives for this reason. He said he becomes overwhelmed with some tasks, and often relies on his wife or son to do things when he feels he is not up to it. Due to his symptoms, Mr Lokanc said he has difficulties handling stressful situations, and will often walk to his local shopping centre to get out of the house for about 30 minutes each day.’ 

15. The JCA concluded that symptoms associated with Mr Lokanc’s depression had persisted since 2002 and the condition was also fully diagnosed, treated and stabilised, with no significant improvement likely in the following two years. The Assessor decided to recommend a rating of 10 impairment points for Mr Lokanc’s depression under Impairment Table 5 – Mental Health Function.

16. At the hearing, Mr Lokanc stated that his main complaint was his back condition and did not refer to his depression as having a significant impairment effect. In responding to questions about his recreational activities during the relevant period, Mr Lokanc said he watched television ‘but not much’. He said there was a television in the sitting room and bedroom at his home and he mainly watched the one in the bedroom ‘most often lying down’. Mr Lokanc said he prefers not to sit, because it causes numbness in his lower body. But he agreed that he occasionally sat while watching television, while eating, while reading a book/magazine, and when using his IPAD. When asked about the things he did on the IPAD, Mr Lokanc said he went on the internet, read books in the Serbian language like ‘Yugoslav history and memoirs’. Mr Lokanc said his concentration extended to about 30 minutes of non-stop reading, before he would change and do something else. When asked if he could watch a whole film in one sitting, he said ‘no I can watch a film for 30 minutes’.

17. Mr Lokanc said he regularly called his mother in Bosnia and Herzegovina on the telephone. He contends that he socialises very little with others outside of his immediate family, but there was ‘one friend who sometimes comes…I know him from the old country’. Mr Lokanc said that his wife paid the bills from their joint account, which he seldom used. He had a Debit Card that he sometimes used to pay for items, like his favourite pretzels.

18. Mr Lokanc stated that he had personally compiled the materials lodged with the Tribunal and the Federal Court, including his latest submission dated 13 June 2016. He said that he had researched previous legal decisions, including those of Deputy President Forgie and others, which he submitted as authorities on the treatment of JCA Reports.  Mr Lokanc’s evidence in this regard reflects a relatively advanced understanding of English, legal concepts, and a capacity to undertake legal research. Mr Lokanc stated that no one had assisted him with this research, which he accomplished on his IPAD, but his son had assisted with typing. I also note a number of additional handwritten and typed submissions from Mr Lokanc in the material lodged with the Tribunal, demonstrating his capacity to synthesise information and which reflects quite detailed legal research.

    TRIBUNAL CONSIDERATION – MAJOR DEPRESSION

19. I find that during the relevant period, Mr Lokanc’s Depression was fully diagnosed, treated, stabilised and likely to persist in the subsequent two years.

20. The correct impairment table for considering this condition is Table 5 – Mental Health Function. In considering the functional impairment Mr Lokanc experiences as a result of his depression, I note his oral evidence that he is relatively independent with his self-care, is able to shower, dress himself, and use the toilet independently. He also gave evidence that he walked alone to the JCA in Broadmeadows approximately a kilometre from his home, and sat for 45 minutes responding to questions through an interpreter. At the current hearing, when invited to make his opening remarks, he gave an almost two-hour opening statement, where he forcibly and lucidly presented his case. He then continued to respond to over an hour of cross-examination. He cited legal authorities to substantiate his submissions and agreed during cross-examination that he regularly uses the internet to research case law. He also gave evidence that he could ‘watch a film for 30 minutes’, could undertake 30 minutes of non-stop reading, and enjoyed reading books on his IPAD in the Serbian language about Yugoslav history and memoirs. I was not persuaded that Mr Lokanc ‘cannot concentrate’ as contended in the DSP Medical Report prepared by Dr Arulanantham.  

21. For Mr Lokanc to have a ‘moderate’ functional impact on activities involving mental health function, he would have to have moderate difficulties with: self-care and independent living; social/recreational activities and travel; interpersonal relations; concentration and task completion; and work/training capacity. The available evidence does not support that.

22. I am satisfied that Mr Lokanc’s depression is episodic and fluctuates. I have therefore considered the rating that best reflects his overall functional ability, taking into account the severity, duration and frequency of the episodes or fluctuations. I find that the descriptors for a ‘mild’ functional impact were met during the relevant period and that the assignment of 5 points for this condition is the correct decision.

    Other Conditions 

    Gastritis

23. On Mr Lokanc’s DSP application under the heading ‘other medical conditions that are generally well managed and that cause minimal or limited impact on ability to function’, Dr Arulanantham listed ‘Gastritis’. He notes that the condition was secondary to the medication taken by Mr Lokanc for his back injury. In his report dated 23 September 2010, Dr Rastogi also refers to Mr Lokanc’s Gastritis, stating: ‘Patient had Gastroscopy…that showed Gastritis’. In his evidence at the hearing, Mr Lokanc did not refer to his Gastritis as impairing his day to day activities. While I consider that Mr Lokanc’s Gastritis was fully diagnosed, treated and stabilised during the relevant period, I find that it causes minimal impact at best on his functional ability and therefore does not attract any points under the Impairment Tables.

    Anaemia, Diabetes and Other Conditions

24. There is no supporting evidence before the Tribunal regarding Mr Lokanc’s Anaemia and Diabetes, which he did not raise during the hearing as impacting his ability to function. Moreover, Dr Arulanantham does not refer to these issues in the DSP Medical Report he completed, but does list them under the heading ‘Past History’ in his clinical records.[26] It is not possible from the available evidence to conclude that Mr Lokanc’s Anaemia and Diabetes were fully treated and stabilised during the relevant period, but even if they were, there is no evidence to suggest they have an impairment effect on his day to day activities.

    [26]          Exhibit 2, p.51.

25. During the hearing, Mr Lokanc referred to other health concerns he is experiencing such as hip pain. An ultrasound was conducted on both of his hips on 26 June 2015.[27] I also note an MRI result of Mr Lokanc’s hips dated 30 September 2015.[28] Given that Mr Lokanc’s hip condition was not listed on the DSP application, and the supporting medical evidence post-dates the relevant period, it is not possible to conclude that his hip condition was fully diagnosed, treated and stabilised. His hip complaint is therefore not considered further in these proceedings.

    If Mr Lokanc’s impairment(s) is/are of 20 points or more under the Impairment Tables, are 20 points assigned under a single Impairment Table (severe impairment)?

    [27]          Exhibit 1, p.33.

    [28]          Exhibit 2. pp.62-63.

26. After considering the impairment effect of Mr Lokanc’s medical conditions during the relevant period, I find that none are capable of being assigned 20 points or more under a single impairment table. It therefore follows that Mr Lokanc does not have a severe impairment within the meaning of section 94(3B) of the Act.

    Mr Lokanc’s Submissions: JCA Report and Previous Tribunal Decisions

27. During a Directions Hearing on Thursday 25 May 2017, I invited Mr Lokanc to provide written submissions regarding his specific objections to the JCA in particular, noting he was also dissatisfied with AAT1’s hearing of his application. Mr Lokanc states that during the AAT1 hearing, he: ‘…did not have any chance to bring relevant proofs’.[29] In his oral evidence at the current hearing, Mr Lokanc contended that the only matter correctly reflected in the published reasons from the Tribunal’s hearing on 22 February 2016, was his name.

    [29]          Exhibit 1, p.2.

28. On 13 June 2017, Mr Lokanc lodged a document with the Tribunal titled “Applicant’s Outline of Submissions” in which he states:[30]

    [30]          Exhibit 2, pp.1-4.

    ‘Ms Symone qsj 503 (SJ2616) the Job Capacity Assessor (Registered Psychologist) and Ms Pamela per646 (PEO149) a contributing therapist (Registered occupational therapist) as well as the decision-makers, did not take into account the medical history (among a large number of medical reports made by appropriate, eminent doctors-specialists), as well as other medical evidence (corroborating evidence).

    The Original decision is based solely and exclusively on the basis of my statement during a Face to Face interview (11 May 2015). Some of the information does not correspond to the reality and they just put in my mouth.

    …

    (a)  There is no table dealing specifically with pain and when assessing pain the following must be considered:

    (b)  Chronic pain is a condition and where it has been diagnosed any resulting impairment should be assessed using the table relevant to the area of function affected. All about my chronic pain You can read in Dr Clayton Thomas’s medical report, dated 25 November 2015.

    …

    …When determining whether a descriptor applies that involves a person performing an activity, the descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.

    …

    My main objection is about my spinal function (table 4).

    …

    I state that all the relevant doctors-specialists…have agreed that, that in my case there is no lifting bending, twisting and any repetitive work. From 29 May 2002 I have got official status TPD (total permanent disability). Many of institutions that are responsible by Laws have officially recognised this status. I state that from 29 May 2002 until today no one claimed opposite, except the creators of the Original Centrelink decision.

    From the very beginning I insist that, in addition to all above omissions, something is very wrong in my case. Since the beginning I have stated that persons who do not have the appropriate knowledge and qualifications can not make important decisions about somebody’s life and future and that the Original decision-makers in this case can not check any medical report, let alone “consider all medical reports.” That is impossible.

    …

    Conclusion

    In my opinion it is obvious that the Original Centrelink Decision has not made in accordance with the Law.

    Orders sought

    That the Tribunal set aside the Original Centrelink Decision, dated 28 May 2015 and makes the Decision that I have the right on the Disability Support Pension and the benefits from the end of Preclusion period, 14 March 2015.’

1. I do not accept Mr Lokanc’s contention that he did not have ‘any chance to bring relevant proofs’ to the AAT1 hearing, or that the only thing correct in the published reasons for the 22 February 2016 hearing was his name. On any reading of the published reasons from both of those hearings, Mr Lokanc’s contention is without merit.

2. I also do not accept his contention that the JCA failed to take his medical history into account, or that their report was based ‘solely and exclusively on the basis of the…Face to Face interview…’. During the hearing, I took Mr Lokanc to sections of the JCA report referring specifically to the medical history he claims was ignored. Moreover, during cross-examination, Mr Lokanc largely confirmed the accuracy of what the JCA had recorded about the impairment effect of his medical conditions. I do not accept Mr Lokanc’s contention that information in the JCA report was ‘…just put in [his] mouth,’ which I inferred to mean that the JCA assessors had fabricated some of his responses. I find there is no evidence to sustain Mr Lokanc’s contention that any information in the JCA had been fabricated.

3. It is clear from Mr Lokanc’s written submissions, confirmed during the hearing, that his objections to the JCA reflect a misunderstanding of the role and function of the assessors. He considers the people who undertook his JCA are not qualified to comment on his medical conditions. As I explained at the hearing, however, the role of the assessors is not to diagnose conditions, but to bring the available medical evidence together and express judgements about impairment effect and work capacity. As elaborated upon in Uebergang[31] at [28]:  

   ‘The Tribunal recognises that a Job Capacity Assessment is not about diagnosis or prognosis of a person’s medical condition. Rather, its focus is drawing on the information provided by treating doctors and specialists when making assessments and applying the assessor’s specialised knowledge and experience in identifying barriers to employment, interventions, available programs and suitable occupations to determine a person’s impairment rating and work capacity. In Re Muir and Secretary, Department of Employment and Workplace Relations [2005] AATA 902, Mr S C Fisher, Member, recognised the different approaches taken by medical practitioners and work capacity assessors and preferred the evidence of the work capacity assessor as to the applicant’s capacity to work or undertake retraining. At paragraph 43 of his reasons, the learned Member said:

   “...The Tribunal agrees with the contention of the respondent that it does not matter whether the work capacity assessor does or does not hold any relevant medical qualifications as the work capacity assessor performs his or her task on the basis of accepting the conclusions and findings of other medical personnel and then determines whether or not the person been assessed does or does not have the requisite work capacity within the meaning of section 94(1)(c) of the Act”.’

   [31]          Uebergang and Secretary, Department of Families, Housing, Community Services and Indigenous          Affairs [2011] AATA 642.

4. As I explained to Mr Lokanc, the JCA was only one component of the evidence considered by the Tribunal. Mr Lokanc cited Deputy President Forgie’s decision in Eid[32] to support his contention that JCA reports ‘can’t be taken into evidence’. As I explained to Mr Lokanc, Deputy President Forgie’s treatment of this issue relates to the evidentiary weight to be given to the JCA Reports, not that they can’t be considered as evidence. 

   If Mr Lokanc did not have a severe impairment during the relevant period, but his impairment(s) nevertheless attract a rating of 20 points or more, does he have a continuing inability to work or has he participated in a POS?

   [32]          Eid and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 558 at [54] to [75].

5. Mr Lokanc’s impairments have been assigned 15 points under two impairment tables, meaning that he does not qualify for DSP under section 94(1)(b) of the Act. It is therefore not necessary to consider whether he has a continuing inability to work or has actively participated in a POS in the three years prior to lodging his DSP claim. I do so for completeness.

6. The JCA found Mr Lokanc’s baseline work capacity was less than 15 hours per week and that he had not actively participated in a POS. Mr Lokanc contends that he was unaware of the POS requirement because he had been told that he ‘had no right to contact Centrelink’ during the preclusion period applying after his compensation payment. I invited Mr Lokanc to clarify why he felt he was not permitted to contact Centrelink, which he again associated with the preclusion period applying to his compensation payout and consequent inability to claim social security benefits between October 2007 and March 2015. There was no evidence pointed to that might substantiate Mr Lokanc’s contention that he had ‘no right to contact Centrelink’. To the contrary, Centrelink’s Customer Records show that Mr Lokanc’s first contact in relation to his DSP claim was initiated by him on 11 February 2015, approximately a month before his compensation preclusion period expired on 13 March 2015.[33] A further entry on 16 March 2015 confirms Mr Lokanc again contacted Centrelink to confirm receipt of his DSP claim. The operator confirmed the application had been received and noted that Mr Lokanc was advised the standard processing time was 49 days, estimating it would be processed by 4 May 2015. Mr Lokanc was ‘advised to enquire if [Centrelink] have not been in touch by that date’.

   [33]          Exhibit 1, p.94.

7. I find there is no evidence to substantiate Mr Lokanc’s claim that he was not permitted to contact Centrelink. At the hearing, Mr Lokanc did not contest his failure to complete a POS, stating: ‘I did not know I had to have a Program of Support…When did Centrelink expect me to have completed a Program of Support’. I therefore find that Mr Lokanc has not completed a POS as required by section 94(1)(c) of the Act.

   CONCLUSION

8. Mr Lokanc’s application fails because he does not satisfy section 94(1)(b) of the Act. Even if he had received 20 points under two Impairment Tables, his claim would still have failed because he does not have a severe impairment and has not participated in a POS as required by section 94(1)(c) of the Act.

   DECISION

9. It therefore follows that the decision under review is affirmed.

I certify that the preceding 67 (sixty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC

.....................[sgd]......................................

Associate

Date of hearing:	23 June 2017
Applicant:	In person
Solicitor for the Respondent:	Mr Tim de Uray, Department of Human Services FOI and Litigation Branch