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

[2021] AATA 2381

Milic and Secretary, Department of Social Services (Social services second review) [2021] AATA 2381 (20 July 2021)

Division:GENERAL DIVISION

File Number:          2020/1081

Re:Ivica Milic

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Mr S Evans, Member  

Date:20 July 2021  

Place:Sydney

The decision under review is affirmed.

..........................SGD..............................................

Mr S Evans Member

CATCHWORDS

SOCIAL SECURITY – disability support pension (“DSP”) – Applicant seeking review of decision by Social Services and Child Support Division - issue to be determined: whether the Applicant meets the criteria to be eligible for DSP according to subsection 94(1) of the Social Security Act 1991 (Cth) (“the Act”) – provisions of the Act considered – provisions of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 considered – medical evidence and other materials and records considered – decision under review affirmed.

LEGISLATION

Social Security Act 1991 (Cth)

SECONDARY MATERIALS

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

REASONS FOR DECISION

Mr S Evans, Member

20 July 2021

INTRODUCTION

1. Ivica Milic (“Mr Milic”) seeks review of a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (“AAT1”) which affirmed a decision of a delegate of the Secretary for the Department of Social Services (“the Secretary”) to reject his claim for Disability Support Pension (“DSP”) lodged on 24 October 2018.

2. When Mr Milic applied for DSP he did so on the basis of the following medical conditions: 

   ·Osteoarthritis left AC joint

   ·Chronic pain and restriction of movement left and right shoulder

   ·Chronic cervical spinal pain and joint disease, right C7/T1

   ·Lower back pain

3. Though not specifically identified in his application, Mr Milic also provided evidence of a mental health condition. At the hearing Mr Milic told the Tribunal that he also suffered from water retention, a painful right knee and arthritis in his left hand at the time he made his application for DSP. 

   BACKGROUND

4. Mr Milic is currently 65 years of age. Prior to making what appears to be his first application for DSP in 2013, he worked as a panel beater. 

5. He told the Tribunal that he is frustrated by the process of applying for DSP and feels let down by Centrelink. In a previous application for DSP which was the subject of a Job Capacity Assessment (“JCA”) report in January 2016, Mr Milic was allocated 20 impairment points, but denied the pension as he had not completed the Program of Support requirement. Mr Milic told the Tribunal that he finds it difficult to understand how he was allocated 20 points under the Impairment Tables in 2016 but the Secretary now contends that he is eligible for zero points. He told the Tribunal his conditions are worsening over time, not improving. 

6. Mr Milic resides with his cousin, his cousin’s wife and their adult children. He lives independently in his own part of the house but his cousin assists him by carrying out food and grocery shopping and arranging his medication. He owns a car which he says he drives when he must but with great difficulty due to his physical impairments.  He also reported that his anti-depressant medication, Avanza, makes him drowsy.  

   CRITERIA TO BE APPLIED

   Qualification for Disability Support Pension

7. 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 relevantly 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

8. The Impairment Tables 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.

9. Subsection 5(2) of the Determination sets out the purpose and general design principles of the Impairment Tables. Section 6 sets out the rules for assessing the level of functional impairment of conditions and assigning impairment ratings. Subsection 6(3) 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.

10. When applying the Tables, subsection 6(1) requires that in assessing functional capacity, 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.

11. Under subsection 6(5), in determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, the following must be considered: 

    (a)whether there is corroborating evidence of the condition;

    (b)what treatment or rehabilitation has occurred in relation to the condition; and

    (c)whether the treatment is continuing or is planned in the next two years. 

12. Subsection 6(6) sets out the requirements in order for a condition to be fully stabilised:

    (a)Either the person has undertaken reasonable treatment for the condition and any 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; or

    (b)the person has not undertaken reasonable treatment for the condition and:

    (i)significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or

    (ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment. 

13. Subsection 8(1) 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 qualification period

14. When reviewing the decision I am to consider the evidence as it relates to the 13 week period following application for DSP (“the qualification period”). The qualification period for the purposes of the reviewable decision is 24 October 2018 to 23 January 2019. Any evidence is relevant only in so much as it relates to Mr Milic’s conditions during this time.  

    ISSUES

15. The issue for determination is whether Mr Milic meets the criteria for DSP set out in subsection 94(1) of the Act.

    CONSIDERATION

16. The Secretary accepts, and based on the evidence I agree, that during the qualification period Mr Milic had a physical, intellectual or psychiatric impairment and satisfied paragraph 94(1)(a) of the Act during the qualification period. As such, the first issue for determination is whether Mr Milic’s conditions were fully diagnosed, treated and stabilised during the qualification period, and if so, what rating may be assigned for functional impairment in accordance with the Impairment Tables.

    Left hip osteoarthritis

17. Consultant rheumatologist Dr Loretta Rozario reported on 30 August 2018 to Dr Mazin Amir that she had reviewed Mr Milic and noted he had had a total hip replacement two years ago and was at that time on a waiting list for a left hip replacement. Dr Rozario writes that because of the pain in his left hip, Mr Milic “has great difficulty dressing and mobilising, getting in and out of cars and other activities”. 

18. In his oral testimony to the Tribunal Mr Milic confirmed that during the qualification period he would occasionally take short walks if he was able to do so and sometimes joins his cousin shopping. At times he also attended the Croatian Club with his cousin but would only stay a short time. 

19. Mr Milic also confirmed that he could walk out of a car park and stand from a sitting position without human assistance. He said that although he did not use public transport he could do so. He told the Tribunal that he began using crutches approximately five years ago but that he does not use them all the time. 

20. General practitioner Dr Evelyn Banares also reports on the functional impact of Mr Milic’s lower limb condition. On 10 November 2020 she described his lower limb condition as having a “moderate functional impact” due to severe pain in his hip joints and lower limbs due to severe degenerative arthritic changes. 

21. The Secretary contends that Mr Milic’s lower limb condition was fully diagnosed but not fully treated or stabilised as at 24 October 2018 or at any time during the qualification period. It is submitted that as Mr Milic had not had the operation to replace his left hip, he had not exhausted all reasonable treatment for this condition by the end of the qualification period and therefore the condition does not qualify to be assigned an impairment rating. 

22. The evidence indicates that Mr Milic has been awaiting surgery for his left hip as far back as July 2015 when orthopaedic surgeon Dr Chin reported that a left hip replacement would follow replacement of his right hip. In January 2017 Dr Chin reported that Mr Milic was on a waitlist for a left hip replacement. Mr Milic told the AAT1 that he would be undergoing left hip replacement surgery in April or May of 2020. Mr Milic confirmed at the hearing he is still awaiting surgery to replace his left hip and stated his planned surgery was delayed owing to COVID-19. He was unable to say when the procedure would proceed. 

23. In her November 2020 report Dr Banares confirms that Mr Milic has been on the waiting list for a total left hip replacement at Fairfield Public Hospital since April 2019. She states that average waiting time for public hospitals is between one and two years, and speculates that this may extend further in light of the pandemic. 

24. I accept that the surgery to replace Mr Milic’s left hip may be delayed due to the COVID-19 pandemic, but as it is outside the qualification period it is not material to the consideration of the current application.    

25. The rules for applying the Impairment Tables state that a condition is considered fully stabilised if the person has undertaken reasonable treatment for the condition. Mr Milic told the Tribunal that though he still experiences some pain in his right hip, the operation has been of benefit to him. It is to be expected, based on the medical advice, that an operation on his left hip would likewise be of benefit. I am satisfied that this is reasonable treatment which was available to Mr Milic. 

26. As such, I am not satisfied that this condition is eligible to be assigned an impairment rating. 

    Left shoulder disorder

27. The Secretary accepts that this condition was fully diagnosed, treated and stabilised during the qualification period.  Based on Dr Rozario’s report of 30 August 2018, I agree. 

28. The Secretary submits that this condition should be allocated zero impairment points under Impairment Table 2 – Upper Limb Function owing to the insufficient corroborating evidence outlining the functional impact during the qualification period. 

29. On 30 August 2018 Dr Rozario reported “Osteoarthritis of the left AC joint on a background of chronic pain and restriction of movement of the left shoulder”.  She considers that he is not able to work because of the “osteoarthritis in a generalised distribution as well as rotator cuff problems in his shoulders”.

30. Mr Milic told the Tribunal that his left shoulder condition leaves him unable to do anything with his left arm and that he is unable to work. He confirmed that during the qualification period he was able to put on a T-shirt, but he is unable to do so now as his shoulder condition has worsened.

31. Impairment Table 2 list activities using hands and arms which a person would be unable to perform or have difficulty performing for allocation of points. There is no evidence from a medical or health professional which would assist in applying an impairment rating for this condition. However, I note that Mr Milic does use crutches on occasion and reports being able to drive on occasion.   

32. In the absence of corroborating evidence outlining the functional impact of his shoulder condition, I am unable to assign an impairment rating for this condition. 

    Spinal condition

33. The Secretary accepts that Mr Milic’s cervical and lumbar spine pain with facet joint disease was fully diagnosed, treated and stabilised during the qualification period on the basis of Dr Rozario’s 30 August 2018 report. 

34. The Secretary contends that Mr Milic’s spinal condition attracts an impairment rating of nil points under Table 4 – Spinal Function as there is insufficient corroborating evidence outlining the functional impact of this condition during the qualification period. 

35. A report from Dr Dominic Collis of the Wetherill Park Imaging Centre dated 5 June 2018 confirming that Mr Milic had a CT scan on his spine appear to form the basis of Dr Rozario’s report of 30 August 2018. Dr Rozario reported that Mr Milic has chronic lower back pain and significant facet joint disease. She describes his condition as “causing chronic cervical spinal pain and headaches along with radiculopathy”.  Whilst there is a record also of Mr Milic having cortisone injections for his spinal condition, there is a dearth of corroborating evidence detailing any impairments caused by Mr Milic’s spinal condition. 

36. Mr Milic told the Tribunal that his lower back causes him great pain which is constant and that his upper back condition is worsening as he ages. In the 20 January 2016 JCA report Mr Milic was allocated 5 points under Table 4. The author of the report writes that Mr Milic reported difficulty to with repetitive bending and sustained postures, but does not detail any medical information regarding functional impact.  

37. I accept that Mr Milic’s spinal condition was fully diagnosed during the qualification period.  However, I am unable to assign an impairment rating as there is a lack of verifiable detail as to what the impact of this condition is. 

    Mental health condition

38. Based on the report from clinical psychologist John McGee, the Secretary accepts that Mr Milic’s Major Depressive Disorder and Persistent Depressive Disorder were fully diagnosed, but not fully treated or stabilised throughout the qualification period. 

39. The January 2016 JCA report confirmed Mr Milic’s Major Depressive Disorder and Persistent Depressive Disorder and symptoms related to Generalised Anxiety Disorder were considered fully diagnosed, treated and stabilised at the time. His mental health conditions were allocated an impairment rating of 10 points under Table 5 – Mental Health Function.   

40. A medical report dated 2 August 2018 by Mr McGee indicates that Mr Milic had attended two sessions of “psychological assessment”, and that he had previously seen Mr Milic in December 2015. He reports on Mr Milic’s physical impairments and states that Mr Milic has not reported any improvement to his psychological symptoms since his diagnoses of depression. 

41. Mr Milic was asked about the treatment for his mental health condition during the hearing. He confirmed that he may have seen Mr McGee on two occasions. He could not be certain if he saw Mr McGee between 2015 and August 2018. He said that he has not sought any specialist medical treatment for his mental health since he saw Mr McGee in 2018. 

42. Mr Milic’s Pharmaceutical Benefits Scheme summary shows that from 1 October 2015 he was taking Mirtazapine and had trialled other anti-depressant medications leading up to the qualification period including Diazepam, Mirtazapine, Escitalopram and Prochlorperazine.

43. A reference is made in Mr McGee’s report of 23 December 2015 to Mr Milic receiving treatment from Ms Anita Rowles. Mr McGee reported on 2 August 2018 that Ms Rowles had informed him Mr Milic’s symptoms were consistent following treatment with her.

44. The evidence indicates that Mr Milic had not been seeking consistent or regular treatment in the period since he last saw Ms Rowles on 8 November 2016.  His psychological care with Mr McGee and Ms Rowles was irregular and I also note that his use of medication to treat his mental health conditions was not reviewed or assessed by a psychiatrist. 

45. As Mr Milic’s mental health conditions were not optimally treated during the qualification period, I am not able to assign an impairment rating for this condition. 

    Other conditions

46. Though he did not list these conditions on his initial application, Mr Milic told the Tribunal that he also suffered from water retention, a painful right knee and arthritis in his left hand at the time he made his application for DSP. In relation to the water retention, there is no medical evidence before the Tribunal. There are references to Mr Milic’s osteoarthritis causing pain in his knee and affecting his hand, but there is insufficient information to consider an impairment rating for any of these conditions beyond what has already been considered. 

    CONCLUSION

47. As Mr Milic’s impairments do not rate 20 or more points on the Impairment Tables, he is unable to satisfy paragraph 94(1)(b) of the Act and his claim for DSP cannot succeed. It is therefore not necessary to consider whether he also had a continuing inability to work during the qualification period.

    DECISION

48. The decision under review is affirmed. 

I certify that the preceding 48 (forty -eight) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

....................SGD....................................................

Associate

Dated: 20 July 2021

Date of hearing:	21 May 2021
Applicant:	Self-represented
Solicitor for the Respondent:	Dr S Thompson, Services Australia