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

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.
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.
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.
The hearing was…

Details

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

CaseChat Overview and Summary

This matter concerned an appeal by Mr Lokanc against a decision by the Secretary of the Department of Social Services regarding his eligibility for a Disability Support Pension (DSP). Mr Lokanc, an Australian citizen born in Bosnia and Herzegovina, had sustained multiple workplace injuries to his back between 1997 and 2002. Following the 2002 injury, he received a significant lump sum compensation payment, which precluded him from receiving social security benefits until March 2015. The dispute centred on whether Mr Lokanc met the legislative requirements for a DSP, specifically concerning the severity of his impairments and his ability to work.

The court was required to determine whether Mr Lokanc had a physical, intellectual, or psychiatric impairment that attracted 20 or more points under the Impairment Tables, and whether he had a continuing inability to work. This involved assessing whether his impairments were severe, as defined by section 94(3B) of the *Social Security Act 1991* (Cth), which would exempt him from the requirement to participate in a Program of Support (POS). If his impairment was not severe, the court needed to consider whether he had actively participated in a POS for at least 18 months within the 36 months prior to his claim.

The court found that while Mr Lokanc had a long history of back pain and progressive deterioration of his condition, his impairments did not attract 20 points or more under a single impairment table. Consequently, he did not have a severe impairment for the purposes of section 94(3B) of the Act. The court also noted inconsistencies in Mr Lokanc's evidence regarding his ability to perform basic activities such as sitting, standing, and walking, and found that his submissions regarding his inability to lift, stand, sit, or stay in one place were not supported by the available evidence. The court therefore affirmed the decision under review.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons that follow, the decision under review is affirmed. Background 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. 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 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; 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). 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. 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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 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. 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.…ConclusionIn my opinion it is obvious that the Original Centrelink Decision has not made in accordance with the Law.Orders soughtThat 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.’

Ratio Decidendi

Legal Principle Established

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 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.