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

[2018] AATA 1619

Malesevic and Secretary, Department of Social Services (Social services second review) [2018] AATA 1619 (30 April 2018)

Division:GENERAL DIVISION

File Number(s):      2017/4054

Re:Savo Malesevic

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Chris Puplick AM, Senior Member

Date:30 April 2018

Date of written reasons:        1 June 2018

Place:Sydney

The decision under review is affirmed.

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

Chris Puplick AM, Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – qualifying period - eligibility assessed at time DSP claim lodged or 13 weeks after – continuing inability to work -  deterioration and conditions that fall outside qualifying period cannot be assessed – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth), s 94

REASONS FOR DECISION

1. This is a matter concerning an application to review a decision not to grant a Disability Support Pension (DSP) to the Applicant. The application for review was made on 12 July 2017. The applicant was self-represented and the respondent represented by Dr Thompson. The Tribunal wishes to thank both parties for their assistance to the Tribunal and the Tribunal also records its thanks and appreciation to the interpreter.

2. The Applicant lodged his claim for a DSP on 3 June 2016 and that triggers an assessment process to determine the eligibility for the DSP, which must take place as of the date of the claim or 13 weeks thereafter - that is, the time between 3 June and 3 September 2016. This is what I call the qualifying period. It is not possible for the Tribunal to take into account anything which occurred after the qualifying period in terms of the claimed deterioration of the Applicant’s health. The Applicant must meet the conditions which are set out in section 94 of the Social Security Act 1991 (Cth) - that is to say, the person has a physical, intellectual or psychiatric impairment; the person rates 20 points or more on the Impairment Tables; and the person has a continuing inability to work or the Secretary is satisfied the person is participating in a program known as the Supported Wage System.

3. For any condition to be considered, it must be fully diagnosed and documented, fully treated and fully stabilised. The inability to work is also defined in the legislation and we will come back to that. If I turn to the issues in the particular case, there are five conditions listed in the application. They are lumbar back conditions, lung cancer, ganglion cysts on wrists, osteoarthritis of the knees and depression. There is a disagreement between various authorities who assessed the Applicant’s claim as to the impairment ratings. The Job Capacity Assessments of July 2015[1] and November 2016[2] both list these as zero. The Health Professional Advisory Unit opinion of 28 February 2017[3] gives 20 points; the Administrative Appeals Tribunal on the first instance (AAT1) in June 2017 gave 15 points;[4] and the Secretary in April 2018 also gave 15 points.[5]

   [1] Tribunal documents, pp. 119-125.

   [2] Tribunal documents, pp. 182-190.

   [3] Tribunal documents, pp. 201-208.

   [4] Tribunal documents, pp. 7-14.

   [5] Respondent’s Statement of Facts, Issues and Contentions dated 27 April 2018.

   Lumbar back conditions

4. I turn first to the cervical and lumbar spinal conditions. These are fully diagnosed, treated and stabilised. I have had a look at the reports of Drs Guirgis,[6] Stephenson,[7] Tomasevic[8] and Habib.[9] The Secretary says there is a lack of radiological evidence in relation to this degenerative disc disease and I turn to Table 4 of the Impairment Tables, which deals with spinal conditions and I note the Secretary gives this a rating of 5 points and that the AAT1 gave it a rating of 5 points. However I have independently examined the conditions which are set out in the Table, only one of which needs to be satisfied to obtain 10 points and I regard the difficulty with overhead activities and the difficulty bending to pick up something which is at knee level, which gives this a rating of 10 points.

   [6] Tribunal documents, p. 98.

   [7] Tribunal documents, pp. 99-105.

   [8] Tribunal documents, pp. 106-116, 126-127, 129-130, 136-137, 148, 180, 199-200.

   [9] Tribunal documents, pp. 132, 195-197.

   Lung cancer

5. I go then to the question of lung cancer and I note the report from Associate Professor French,[10] particularly about the right upper lobectomy and I have looked at the reports of Dr Habib,[11] Dr Dimitri,[12] Dr Hou,[13] Dr Thakur[14] and the very recent report from Dr Tomka.[15] I note that Dr Tomka says that the applicant is permanently incapacitated. The Secretary disagrees with this. The Secretary relies upon discharge notes from the hospital and Associate Professor French’s view that the applicant was only prevented from “continuous work”.[16] I have looked at the table for 20 points, but as the material must relate to the qualifying period, I find that although the applicant might possibly score 20 points now, under Table 1 at the time that is relevant, he had a rating of only 10 points.

   [10] Tribunal documents, p. 140.

   [11] Tribunal documents, pp. 195-197.

   [12] Tribunal documents, pp. 179 and 198.

   [13] Exhibit A7.

   [14] Exhibit A2.

   [15] Exhibit A4.

   [16] Tribunal documents  p. 181.

   Ganglion cysts on wrists

6. I go to the question of the upper limb conditions - that is, the cysts on the wrists. The Secretary made no submission on this, so I have relied on the report of Dr Guirgis[17]and the evidence which was given by the Applicant at the hearing in response to questions from Dr Thompson. Under Table 2, the applicant could do most things which are in the 5 point score, which means that I cannot award anything other than nil points.

   [17] Tribunal documents, p. 98.

   Osteoarthritis of the knees

7. Next, I go to the condition of the knees, which is regarded by one of the authorities as not fully treated and stabilised but, by contrast, the Secretary accepts that this is fully diagnosed, treated and stabilised. There is some conflict in the medical analysis. Dr Stephenson describes the Applicant as totally disabled. Dr Tomasevic says that he is unable to stand for long periods. Dr Hou reports no swelling and that the knees were non-tender on palpitation. I also note that the Applicant undertook overseas travel during this period. I have also looked at the report of Dr Tomka but this is 17 months after the relevant date. I believe that as of the date of the hearing, the Applicant might qualify for 5 or 10 points but the evidence as to his condition in the qualifying period means that I cannot award any points.

   Depression

8. I come to the question of depression and mental health. This is dealt with under Table 5 of the Impairment Tables. It requires a diagnosis by a psychiatrist or by a qualified medical practitioner with support from a clinical psychologist. I have looked at the report of Dr Kuljic,[18] who is a psychiatrist, which is dated 8 February 2016. The Secretary contends that this is not a diagnosis. I disagree with that. I find that it is a diagnosis. There is some ambiguity in the reference in relation to whether treatment was ongoing or not. The best diagnosis, also made by Dr Kuljic, does not appear to be until 23 August 2017, which is one year outside the period. Again, I have no doubt that as of the date of the hearing the Applicant would qualify for points under Table 5 but I believe he did not do so in the qualifying period.

   [18] Exhibit A1.

9. This means that I have assessed the applicant as having 20 points on the Impairment Tables. That is the minimum qualification for further consideration, however, the 20 points are not in one condition on its own. They are cumulative.

   Inability to work

10. As such, I must consider the question of the inability to work. Under section 94 of the legislation, this requires that a person has “actively participated in a program of support.”

11. Furthermore, they must have done so for at least 18 months within the period of 36 months ending immediately before the day of the Applicant’s claim for DSP, that is 3 June 2016.

12. In this case, there has been some level of participation but only for 31 weeks, or 217 days, of the 36 months or 547 days required. I have looked at the report of Dr Habib and I do not discount it, however, Dr Habib’s report has to be read against the precise requirements of the legislation and, as a result, it does not meet the test that is required. Hence, I am left with the report of Associate Professor French of 6 September 2016[19] which states that Mr. Malesevic “is unable to conduct continuous work activity. There is a small chance he will improve by 2019 and he will require ongoing medical surveillance.”

    [19] Tribunal documents  p. 181.

    CONCLUSION

13. This means that the evidence is that the applicant has not fulfilled the requirements of the Act in relation to participation in a Program of Support and, unfortunately, the medical conditions themselves do not allow me to set aside the statutory requirements for participation.

14. I have no doubt, as the Applicant says in his claim, his conditions are progressive. I believe that as of the date of the hearing, the applicant would probably, but I cannot be sure, qualify for the DSP and I understand that there is a new application already being lodged.

15. However, this particular application cannot succeed because, although the Applicant meets the 20 point threshold, he fails the continued inability to work test. The Application is, therefore, dismissed and the decision under review is affirmed.

    Chris Puplick AM, Senior Member

    1 June 2018

I certify that the preceding 15 (fifteen) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

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

Associate

Dated: 1 June 2018

Date of hearing:	30 April 2018
Applicant:	In person
Solicitors for the Respondent:	Dr S Thompson, Sparke Helmore