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

[2019] AATA 22

Mlinarevic and Secretary, Department of Social Services (Social services second review) [2019] AATA 22 (11 January 2019)

Division:GENERAL DIVISION

File Number:           2018/0223

Re:Rudo Mlinarevic

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member C Edwardes

Date:11 January 2019

Place:Perth

The decision under review is affirmed.

..............................[SGD]..........................................

Member C Edwardes

CATCHWORDS

SOCIAL SECURITY – disability support pension – medical conditions – liver – diabetes and hypertension – thrombophlebitis – spine – knee – impairment tables – continuing inability to work rating – no participation in program of support – decision under review affirmed.

LEGISLATION

Social Security Act 1991 (Cth) – ss 26(1), 94, 94(1), 94(1)(c)(i), 94(2), 94(3B), and 94(3C)

Social Security Administration Act 1999 (Cth) – s 179, and Sch 2 Cl 4(1)

CASES

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Harris v Secretary, Department of Employment and Workplace relations (2007) 158 FCR 252
Ulukut and Secretary, Department of Social Services [2014] AATA 399

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) – ss 3, 6(1), 6(2), 6(3), 6(4), 6(5), 6(6), 6(7), 7, 8, 8(1), 9, 10, 11, 11(1) and 11(1)(c)

Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) – ss 7(1) and (2)

Department of Social Security, Guide to Social Policy Law: Social Security Guide (Department of Social Security, Version 1.250, 5 November 2018)

REASONS FOR DECISION

Member C Edwardes

11 January 2019

THE APPLICATION

1. This is an application for the review of a decision of the Social Services and Child Support Division of the Tribunal (the “AAT1”) dated 15 December 2017. The AAT1 affirmed a decision to reject the Applicant’s claim for the Disability Support Pension (the “DSP”) lodged on 24 October 2016 (T2 pp3-11).

2. The General Division of the Administrative Appeals Tribunal (the “Tribunal”) has jurisdiction to determine this matter pursuant to s 179 of the Social Security (Administration) Act 1999 (Cth) (the “Administration Act”).

   INTRODUCTION

3. On 24 October 2016, the Applicant lodged a claim for the DSP (T48 pp214-245) in conjunction with a number of medical reports. These documents referred to medical conditions: in the liver; diabetes; hypertension; thrombophlebitis; spinal conditions; and bilateral knee issues.

4. The claim was rejected by an officer of Centrelink on 21 March 2017 (R2) and the Applicant, through his solicitor, requested that a review of that decision be undertaken (T52 p266).

5. The review was undertaken by an Authorised Review Officer (the “ARO”) and the Applicant received notification of such on 8 August 2017 (T54 pp268-274).

6. The ARO advised the Applicant of the following key findings:

   After careful consideration of the evidence, I have made these key findings:

   •Your liver condition, diabetes, thrombophlebitis and hypertension are accepted as being permanent for the purposes of Disability Support Pension.

   •Your conditions of spinal disorder and bilateral knee conditions are not accepted as being permanent as they have not been fully treated and stabilised.

   •          Your total impairment rating is 0 points.

   •          You do not have an impairment rating of 20 points or more.

   •You do not have a continuing inability to work 15 hours per week or more because of your impairment.

7. As a result of the ARO’s decision dated 8 August 2017 (T54 pp268-274), the Applicant lodged an application with the AAT1 on 25 August 2017 (T2 p4).

8. In the AAT1’s decision dated 15 December 2017, the AAT1 determined that the Applicant had generated an impairment rating of zero points under the Impairment Tables (T2 p11).

9. The AAT1 found that the Applicant met the qualifications for the DSP, under s 94(1)(a) of the Social Security Act 1991 (Cth) (the “Act”) (T2 pp3-11), based upon the medical reports in respect to the following medical issues:

   ·liver;

   ·diabetes;

   ·thrombophlebitis;

   ·hypertension;

   ·spine; and

   ·bilateral knee.

10. On 17 January 2018 the Applicant applied to the General Division of the Tribunal for a review of the AAT1’s decision, dated 15 December 2017 (T2 pp3-11).

11. The Applicant lodged this claim for review on the basis that his application to the AAT1 failed, due to the Applicant’s conditions generating zero points under the Impairment Tables (T2 p11).

12. The Applicant’s application for review stated (T1 p2):

    All facts were not determined fully nor properly, (sic) evidence (sic) not considered or (sic) wrongly interpreted (sic) for (sic) which reasons the Tribunal could not apply the law properly (sic) and its decision should be overturned and (sic) Disability Pension granted

13. On 17 December 2018, the matter was heard in Perth. The Applicant appeared in person and was represented by Mr Dangubic from Frichot & Frichot. The Respondent was represented by Ms Moore. An interpreter was used for the Hearing.

    RELEVANT LEGISLATION

14. The relevant provisions governing eligibility for the DSP are contained in the Act and the Administration Act.

15. Section 94 of the Act provides the criteria for the DSP, relevantly:

    (1)A person is qualified for disability support pension if:

    (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)    …

    Assessing impairments and assigning an impairment rating

16. The Impairment Tables referred to in s 94(1)(b) of the Act are located in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the “Determination”). The Determination was made pursuant to s 26(1) of the Act. The tables contained within the Determination are referred to as (the “Impairment Tables”).

17. Section 94(1)(b) of the Act obliges the Tribunal to decide whether the impairments of the Applicant equate to 20 points or more under the Impairment Tables. In Ulukut and Secretary, Department of Social Services [2014] AATA 399 at [5] – [6], Senior Member Isenberg explained the operation of the Impairment Tables as follows:

    [5]…The Tables are function-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impairment. Impairment is defined to mean a loss of functional capacity affecting a person’s ability to work that results from the person’s condition: s 3 of the Determination. A claimant’s impairment is to 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: s 6(1) of the Determination.

    [6]The Tables may only be applied after the person’s medical history has been considered. An impairment can only be allocated if a condition is permanent, i.e. fully diagnosed, treated and stabilised, and likely to persist for more than two years: s 6(2)-6(4) of the Determination.

18. Subsections 6(4) to (7) of the Determination provide further guidance in assessing whether or not a condition is permanent.

19. Section 8(1) of the Determination stipulates that:

    Symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence. 

20. Sections 7 to 11 of the Determination provide guidance on how to assess information and evidence using Impairment Tables, and how to assign the impairment ratings. In particular, s 11(1)(c) of the Determination states that:

    If an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied…

    Continuing inability to work

21. As set out above, in s 94(1)(c)(i) of the Act, a criterion for qualifying for the DSP is that the person has a continuing inability to work. Pursuant to s 94(2) of the Act:

    (2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

    (aa)in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support – the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and

    (d)in all cases – the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and

    (e)in all cases – either:

    (i)     the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

    (ii)    if the impairment does not prevent the person from undertaking a training activity – such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

    (Emphasis added.)

22. “Severe impairment” is defined in s 94(3B) of the Act:

    A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table. (Original emphasis.)

23. Section 94(3C) of the Act states that:

    A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister… (Original emphasis.)

24. Relevantly, ss 7(1) and (2) of the Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) require generally, that a person is to participate in a program of support (the “POS”) for 18 months in the 36 months prior to the date of the relevant claim for the DSP. 

    Qualification Period

25. Section 94 of the Act must be read in conjunction with Schedule 2 clause 4(1) of the Administration Act. In accordance with the requirements in Schedule 2 clause 4(1) of the Administration Act, there is a 13 week qualifying period for the DSP. The Tribunal is required to determine the Applicant’s claim for the DSP in the 13 week period, commencing on the day on the Applicant’s claim for the DSP was registered by Centrelink, and concluding 13 weeks after that day. In the present case, the 13 week period is from 24 October 2016 to 23 January 2017 inclusive, and is known as (the “Qualification Period”).

26. For a claim to be successful, a person must be qualified for the DSP during the Qualification Period. Changes in medical conditions that occur later are not relevant to the claim. They may however, be relevant to a future claim (See Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34] and Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252 at [1]).

27. The Tribunal is also assisted by the Guide to Social Policy Law: Social Security Guide (Department of Social Security, Version 1.250, 5 November 2018) (the “Guide”). The Guide provides assistance to those who administer the Act. Whilst not bound to apply the policy guidelines, the Tribunal will usually do so unless there are cogent reasons in a particular case not to do so (Refer to Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).

    ISSUES

28. The key issue for the Tribunal to consider is whether the Applicant qualified for the DSP during the Qualification Period, for the purposes of s 94(1) of the Act.

29. This requires consideration of whether, at the time of the Qualification Period:

    (a)the Applicant had any physical, intellectual or psychiatric impairment; and

    (b)if so, whether these impairments equated to at least 20 points under the Impairment Tables; and

    (c)if so, whether the Applicant had a “continuing inability to work” as defined in

    
    

    s 94(2) of the Act.

    EVIDENCE

30. As mentioned above, the matter was heard in Perth on 17 December 2018. The Applicant appeared in person and was represented by Mr Dangubic. An Interpreter was used for the Hearing. The Respondent was represented by Ms Moore.

31. The Tribunal would like to thank all parties for the assistance they provided during the hearing.

32. The Tribunal had the following evidence before it:

    ·Exhibit A1 with Annexures RM1 to RM12 – Statement of Facts, Issues and Contentions (SOFIC) dated 24 August 2018.

    oRM1 – Report by Dr Ong dated 11 June 2018.

    oRM2 – Report by Dr Ong dated 9 December 2017.

    oRM3 – Report by Dr Ong dated 17 October 2016.

    oRM4 – Report by Dr Brankov dated 28 November 2017.

    oRM5 – Report by Dr Brankov dated 24 May 2018.

    oRM6 – report by Dr McLaren dated 15 July 2015.

    oRM7 – Report by Dr Williams dated 10 December 2015.

    oRM8 – Report by Dr Leeks dated 9 June 2015.

    oRM9 – Report by Dr Baddour dated 8 June 2015.

    oRM10 – Affidavit of Sanja Mlinarevic dated 14 December 2017.

    oRM11 – Three photographs of the Applicant.

    oRM12 – Report of Dr Jones dated 8 February 2018.

    ·Exhibit A2 – Report by Dr Ong dated 11 June 2018 & 9 December 2017.

    ·Exhibit A3 – Report by Dr Brankov dated 24 May 2018.

    ·Exhibit A4 – Hearing Certificate dated 28 August 2018.

    ·Exhibit R1 – T documents (T1-T69 pp1-322).

    ·Exhibit R2 – SOFIC dated 21 September 2018.

    ·Exhibit R3 – Hearing Certificate dated 24 July 2018.

33. The Tribunal has reviewed all of the material before it. It is satisfied that all relevant evidence was before it, and that both parties were provided with an opportunity to address the evidence, either orally or in writing. The relevant aspects of the evidence and material before the Tribunal have been analysed and referred to below.

34. The Secretary made the following contentions in respect to the medical conditions of the Applicant (R2):

    31. The Secretary accepts that the Applicant’s liver condition, diabetes and hypertention (sic) and thrombophlebitis were fully diagnosed, treated and stabilised during the qualification period. The Secretary contends that none of these conditions attract an impairment rating of over zero points.

    32.The Secretary contends that the Applicant’s spinal and knee conditions are not fully treated and stabilised.

    Liver condition

    33.In accord with the AAT1 decision, the Secretary contends that this condition was fully diagnosed, treated and stabilised within the qualification period, but does not attract an impairment rating of more than zero points.

    34.A letter of the Applicant’s GP, Dr KS Ong, dated 17 October 2016, confirms that the Applicant underwent a liver transplant in October 2012, following severe liver cirrhosis/failure with complications (T47/211).

    35.This letter notes that he has been coping, with frequent surveillance from the liver transplant team, and with awareness and self-management of medication and lifestyle changes.

    36.In a letter dated 6 October 2017, Consultant Hepatologist/Gastroenterologist Professor Gary Jeffrey states that the Applicant’s liver functions tests were ‘essentially normal’, and that he has not altered the Applicant’s medications (T60/281).

    37.In a letter dated 9 December 2017, Dr Ong states that:

    ‘His liver function tests were within normal limits and though ther [sic] has been no obvious problems he remains on constant watch as his condition can deteriorate quite quickly.’ (T64/290)

    38.In this letter, Dr Ong opines that this condition has a moderate to severe impact on the Applicant, but there is no reference to specific descriptors. A further letter of Dr Ong, dated 11 June 2018, notes that the Applicant has reduced endurance and fatigues easily (RM1).

    39.The Applicant submits that this condition should attract an impairment rating of 20 points under Table 10 (Applicant’s submissions [31.1]).

    40.The Secretary contends, however, that there is no further evidence to support a rating of 10-20 points under Table 10. There is no evidence available suggesting an impact on attention or concentration at a task due to this condition, nor is there supporting evidence to suggest that this condition precludes the Applicant from being unable (sic) to sustain work activity or other task (sic) for a total of more than 3 hours a day, even with regular breaks.

    41.The Secretary submits that the appropriate rating for this condition under Table 10 is zero points.

    Diabetes and Hypertension

    42.In accord with the AAT1 decision, the Secretary contends that this condition was fully diagnosed, treated and stabilised during the qualification period, but does not attract an impairment rating of more than zero points under Table 1.

    43.The Applicant contends that this condition should attract an impairment rating of 10 points under Table 1 (Applicant’s submissions [31.4]).

    44.In his letter dated 17 October 2016, Dr Ong notes that the Applicant was diagnosed with Type 2 Diabetes in 2012, and began (sic) medication Metformin and DiamicronMR, as well as diet control. Following surgery to repair a painful enlarging incisional abdominal hernia and a sleeve gastrectomy surgery, the Applicant’s weight stabilised and the condition improved. He ceased taking medication and managed the condition with lifestyle changes, including proper diet and general exercises (T47/211).

    45.An earlier report on (sic) Endocrinologist Dr John Walsh notes that this condition is well controlled (T41/183).

    46.In his letter dated 11 June 2018, Dr Ong states that this condition can deteriorate quickly due to exhaustion and over exertion. Dr Ong notes that his hypertension is under treatment, and any stressful activities can incur (sic) an exacerbation, leading to sudden rising BP (RM1).

    47.Dr Ong’s letter of 9 December 2017 (sic) considers that the two conditions together have a moderate impact, however, there is no reference to any of the descriptors under Table 1 to support this conclusion. He also states that these conditions are reasonably well controlled (T64/291).

    48.There is no further evidence available regarding the functional impacts of this condition. The Secretary accepts that the condition may deteriorate in the future, but contends that this was not the case during the qualification period.

    49.The Secretary therefore contends that the appropriate rating under Table 1 is zero points, and that a higher rating is not supported by the evidence.

    Thrombophlebitis

    50.In accord with the AAT1 decision, the Secretary accepts that this condition is fully diagnosed, treated and stabilised, but contends that the appropriate rating under Table 3 of the Impairment Tables is zero points.

    51.The Applicant contends that the appropriate rating for this condition is 5 points under Table 3.

    52.In his letter of 27 October 2016, Dr Ong states that Vascular Surgeon Dr Kishore Sieunarine operated to remove incompetent left long salphenous veins in early 2016 (T47/212).

    53.In his letter dated 9 December 2017, Dr Ong states the following regarding this condition:

    ‘There has been no further diagnosis of Thrombophlebitis since the one treated in 2015, however he will need constant watch (sic) as to its recurrence (sic) as he has preponderance of this due to his multiple medical conditions. I would indicate this as of mild negative impact on his work related or daily living activities. (sic)’ (T64/291).

    54.The Secretary notes that there is no reference to Table 3 or the descriptors to support a mild impairment rating in this report.

    55.A report of Orthopaedic Specialist (sic) Dr Boris Brankov, dated 28 November 2017, states that this condition has a mild functional impact on his activities of daily living. There is, however, no reference to the descriptors or other basis provided for this conclusion.

    56.The Secretary therefore contends that this condition cannot attract an impairment rating of more than zero points under Table 3 of the Impairment Tables.

    Spinal Condition

    57.In accord with the AAT1 decision, the Secretary contends that this condition was not fully treated and stabilised during the qualification period.

    58.The Secretary accepts that this condition was fully diagnosed at the time of the Applicant’s claim.

    59.The Applicant contends that this condition attracts an impairment rating of 20 points under Table 4 (Applicant’s submissions [31.2]).

    60.A letter of Orthopaedic Spinal Surgeon Dr Edward Baddour dated 8 June 2015 stated that:

    ‘I have advised Rudo to learn to live with his pain and that there is nothing sinister or of any great concern.’

    61.In his report dated 10 December 2015, Orthopaedic Surgeon Dr Desmond Williams wrote, in regard to the Applicant’s lumbar pain:

    ‘…my advice is that he carries out a much more active physical rehabilitation program noting his poor muscle protection for his spine…building up core muscle strength will improve the pre-existing lumber pathology.’

    62.The Job Capacity Assessment Report (JCA), dated 6 February 2017,noted (sic) that the Applicant may benefit from a pain management program and from advice on small but effective exercises, noting the evidence that physiotherapy and hydrotherapy had not been helpful for the Applicant (T50/257).

    63.In his letter of 9 December 2017, Dr Ong opines that this condition has a severe impact, but does not provide further detail. (sic) (T64/290). Dr Ong’s letter of 11 June 2018, notes that the Applicant has poor flexibility and mobility, restricting or preventing any bending, squatting, lifting, digging or prolonged standing or walking (RM1).

    64.In his letter of 28 November 2017, Dr Brankov notes that the spinal condition and symptoms are fully established, and that it is clear that any surgical intervention will not be beneficial. Dr Brankov notes that there is permanent damage to the spine, but the spinal pain is poorly controlled due to the fact that pain killers can damage his liver transplant (T64/293).

    65.While the affidavit of the Applicant’s wife, Sanja Mlinarevic, refers to descriptors of Table 4 (T65/299), the Secretary contends that a rating for this condition cannot be considered with further treatment options yet to be undertaken.

    66.The AAT1 noted that no evidence had been provided as to whether the rehabilitation (sic) as recommended by Dr Williams (sic) had eventuated. The Applicant stated that the (sic) he was unable to participate due to issues, such a (sic) shoulder problems and headaches, and toileting concerns (T2/8-9). There is no further evidence of whether these concerns have been raised with physical rehabilitation providers, or whether the program could be tailored to alleviate the Applicant’s concerns.

    67.The Secretary contends that as the Applicant has not undertaken any active physical rehabilitation, or pain management program, this condition cannot be considered fully treated and stabilised within the qualification period.

    Knee Condition

    68.In accord with the AAT1 decision, the Secretary contends that this condition was not fully treated and stabilised during the qualification period.

    69.The Secretary accepts that this condition was fully diagnosed during the qualification period.

    70.The Applicant contends that this condition attracts an impairment rating of 20 points under Table 3 (Applicant’s submissions [31.3]).

    71.In Dr Williams’ report dated 10 December 2015, he noted the comments of Orthopaedic Surgeon Dr McLaren, whom (sic) recommended a progressive muscle strengthening and fitness program (T44/199). He noted that any further knee surgery would be related to pre-accident degenerative change. This report noted the recommendation that the Applicant continue with bracing and non-operative therapy.

    72.In his letter of 17 October 2016, just prior to the commencement of the qualification period, Dr Ong notes that the Applicant had been referred back to see Dr Brankov..(sic) In this correspondence, Dr Ong notes that since the Applicant’s operations in 2008 and 2009, he had not consulted doctors with any concern regarding this condition, however had experienced ongoing pain (T47/212).

    73.In his report dated 28 November 2017, Dr Brakov (sic) states that:

    ‘…it is most likely that he will need a total knee replacement as definitive treatment for his arthritic left knee.’ (T64/295). (sic)

    74.In this report, Dr Brankov noted the Applicant’s recent falls and stated that:

    ‘It is possible that his knee gave up on him causing a fall. Other causes cannot be excluded.’

    75.Dr Ong’s letter of 11 June 2018 indicates that weight-bearing activities are problematic for the Applicant, especially due to the left knee (RM 1).

    76.During the AAT1 hearing, the Applicant stated that he did not participate in a pool program due to shoulder pain, headaches and due to his falls. The Applicant stated that his wife had not been assistance (sic) with showering at the time of his fall in the shower (T2/10).

    77.The Secretary contends that as there were further treatments yet to be undertaken at the time of the Applicant’s claim, including water-based treatment and potential left knee surgery, the condition cannot be considered fully treated and stabilised. In light of this, the Secretary contends that an impairment rating cannot be assigned for this condition.

1. The Applicant has made the following contentions (A1):

   Evidence – Medical

   7.In his report dated 13 June 2018, (“RM1”) Dr Ong confirmed that in his previous report dated 9 December 2017 (“RM2”) the Applicant’s conditions described in that report were conditions which existed on or about 10 October 2016 and or within 13 weeks of that date. He also expressed opinion that the Applicant has been, for his:

   7.1Spinal conditions ‘…totally unfit to work as he has difficulties even in his daily living activities.’

   7.2Knee problems ‘…the Applicant has no control on (sic) any weight-bearing activities (sic) as his knees can give way causing him to fall at any time (sic) and for (sic) that the Applicant is restricted in most of (sic) activities (sic) including normal day living activities.’

   7.3Liver transplantation/Diabetes/Hypertension the Applicant is under constant surveillance by his doctors and on (sic) treatment because any serious activities can cause deterioration of liver function (sic) and Diabetic conditions (sic) as the Applicant has reduced endurance and easily fatigue (sic) in general (sic)

   8.In the report dated 9 December 2017 (“RM2”) Dr Ong characterized some of (sic) functional impairments caused to (sic) the Applicant by the above conditions, being:

   8.1     moderate to severe concerning liver;

   8.2     sever concerning spine;

   8.3     sever concerning both knees,

   8.4     moderate concerning Diabetes and hypertension; and

   8.5     moderate concerning hernia.

   9.In the same report (sic) Dr Ong expressed the opinion that all conditions have been causing severe impact (sic) with the Applicant’s independent living, social/recreational activities and travel, interpersonal relationships, concentration, memory and task completion, behavior, planning and decision making.

   10.Similar opinions (sic) Dr Ong expressed in his report dates (sic) 17 October 2016 (“RM3”).

   11.In his report dated 28 November 2017 (“RM4”) answering on (sic) our questions from our letter dated 12 December 2017 (sic) and in his report dated 24 May 2018 (“RM5”) (sic) Dr Brankov assessed that the above illnesses/conditions were in existence on or about 10 October 2016 and in particular:

   11.1Spine has been fully treated, stabilized and is permanent causing moderate to severe functional impact to the Applicant.

   11.2Bilateral Knee Conditions have been fully treated and stabilized and have had permanent sever (sic) functional impact on his

   
   

   daily duties and activities with (sic) expectation of further deterioration.

   11.3Thrombophlebitis have (sic) been causing mild functional impairment.

   11.4All of his conditions have had significant impact (sic) on his interpersonal relationships, concentration, memory and task completion.

   12.Dr Brankov also assessed the Applicant to be totally and permanently disabled without capacity to work (sic) nor (sic) undertaking any meaningful training, rehabilitation (sic) nor formal employment.

   13.Dr Brankov further assed (sic) that he does not expect any significant improvement in the Applicant’s symptoms and general functioning (sic) with any treatment/medication available (sic) only to keep his symptoms at (sic) stable level.

   14.Dr McLaren in his report dated 15 July 2015 (“RM6”) assessed the Applicant’s injuries as fully treated, stabilized and permanent and assessed impairment as at 5% of (sic) left leg and 5% of (sic) lumbar spine.

   15.Dr Williams in his report dated 10 December 2015 (“RM7”) assessed the Applicant impairment as at 10% of each (sic) left knee and thoracolumbar spine.

   16.Dr Leeks in her report dated 9 June 2015 (“RM8”) stated that ‘…I believe that we are not winning with Rudo’s knee…’.

   17.Dr Baddour in his report dated 8 June 2015 (“RM9”) states that ‘(sic)…I have advised Rudo to learn to live with his pain…’.

   The Law and Consideration

   18.To qualify for DSP a person should suffer from a physical, intellectual or psychiatric impairment, that have (sic) been fully treated, stabilized and become permanent, pursuant to section 94 (1) of the Act.

   19.The medical evidence, as stated in paragraphs 6 to 17 of this Statement, suggests that the Applicant suffers from various health conditions which were treated, stabilized and became permanent.

   20.A further requirement of section 94 of the Act is that a person’s impairment be rated at 20 or more points in accordance with (sic) Impairment Tables.

   21.An appropriate rate of impairment could be assigned to a condition only if the condition is permanent (sic) and has been fully diagnosed, treated and stabilized (sic) and there is unlikely to be a significant improvement in the condition within the next two years.

   22.The evidence presented to various decision makers and with this Statement, Dr Ong and Dr Brankov reports (sic) as well as other reports (sic) inclusive (sic) but not limited to (sic) Dr Williams, (sic)  Dr Leeks  confirm (sic)  the presence of medical conditions that have caused physical and psychological impairment.

   23.Dr Ong (sic) reports are good evidence about the Applicant’s diagnosis, physical and psychiatric impairment and facts (sic) that no further treatment can be offered to the Applicant for his treated and permanent conditions.

   24.Dr Ong and Dr Brankov also expressed the opinion that the Applicant’s conditions could only deteriorate.

   25.The Applicant’s statements provided to previous decision makers refer to various limitations to (sic) movement of his body or its parts, caused by the injuries, illness and spinal problems, including but not limited to, sitting, getting up from the bed or a chair, overhead activities, daily living activities, bending both the neck and/or the back and requiring assistance for such activities.

   26.The Applicant’s previous statement has been corroborated with the medical evidence.

   27.The term ‘assistance’ is not defined in the Impairment Determination or the Act. The interpretation attributed to it in the case re (sic) Summers and Secretary, Department of Social Services [2014] AATA 165 where it was stated that assistance refers to assistance received from a person.

   28.The Applicant has been in need (sic) and has been receiving various assistance from his family members (wife and son) for his conditions.

   29.The Applicant’s wife (sic) Affidavit (“RM10”) is a (sic) good evidence of (sic) not only of the assistance provided to the Applicant (sic) but also of his restrictions and disability.

   30.Attached to this Statement are 3 photographs of the Applicant (“RM11”) and (sic) Perth radiological Clinic report dated 8 February 2018 (“RM12”) obtained after his falls.

   31.Therefore, we submit that the Applicant’s impairments should be rated as follows:

   31.1     Liver condition, under Table 10, as severe with 20 points;

   31.2       Spine, under Table 4, as severe with 20 points;

   31.3       Knees, under Table 3, as severe with 20 points;

   31.4     Diabetes/Hypertension, under Table 1, as moderate with 10 points;

   31.5       Thrombophlebitis, under Table 3, as mild with 5 points; and

   31.6     Hernia, under Table.

   32.We submit the Applicant fulfils all requirements stipulated in the Act and Tables 1, 3 and (sic) 4 and 10 for such points.

   33.Dr Brankov (sic) in his medical reports (sic) states (sic) that the Applicant’s conditions have had extreme impact (sic) on his independent living in all areas of his life.

   34.Both Dr Ong and Dr Brankov state in their reports that the Applicant’s mental health function has been extremely/severely impacted by his conditions (sic) causing extreme difficulties with the following:

   (a)self-care and independent living;

   (b)social/recreational activities;

   (c)interpersonal relationships;

   (d)concentration and task completion;

   (e)behavior (sic), planning and decision making; and

   (f)work training capacity.

   35.The (sic) Table 5 stipulates 30 points for such functional impairment.

   36.The Applicant fulfils these requirements as evidenced above.

   37.Therefore, we submit that the Applicant’s impairment should be rated as extreme with 30 points.

2. The Tribunal notes the affidavit of the Applicant’s wife, which states (RM10):

   1.I, SANJA MLINAREVIC, of … in the state of Western Australia, housewife, being duly sworn say as follows:

   2.I am the Applicant’s (‘Rudo’) wife.

   3.I swear this Affidavit in support of Rudo’s Application concerning his Disability Support Pension (sic) made the 14th day of April 2016.

   4.Rudo and I married … and since then have been living together as husband and wife.

   5.We have a son …

   6.Until 2008 (sic) Rudo was (sic) very strong and healthy man. He was working long hours as a welder.

   7.In October 2008 (sic) Rudo ceased employment because of his health problems.

   8.In November 2008 (sic) Rudo attended (sic) Left knee surgery.

   9.In March 2009 (sic) Rudo attended other (sic) knee surgery.

   10.In 2012 (sic) Rudo was given a liver transplant.

   11.In 2013 (sic) he attended hernia surgery.

   12.In 2014 (sic) Rudo suffered further injuries in a motor vehicle accident.

   13.In 2016 (sic) Rudo attended further knee surgery (sic).

   14.Since 2008 (sic) Rudo has been severely suffering (sic) from his liver, spine, knees, left leg symptoms (sic) as well as from (sic) permanent pain, depression, insomnia, hypertension and diabetes.

   15.The above symptoms has (sic) caused permanent pain to Rudo and imposed various restrictions on, firstly, his work and, (sic) then, (sic) daily activities (sic) inclusive but not limited to: (sic) siting (sic), walking, sleeping, driving, lifting, pulling, reaching up and down, dressing, taking personal care and working.

   16.In the last 1O (sic) years, on a daily basis, I have been assisting Rudo with dressing and undressing, putting on and removing socks and shoes, showering, driving, cleaning (sic) toilet and bathroom after him, and providing massages.

   17.I have also been taking full care (sic) and preparation (sic) of Rudo’s food. His diet is very demanding (sic) for both (sic) liver condition and diabetes and hypertension. He requires fresh and homemade food that I prepare for him every day (sic) few times.

   18.He has also been suffering from stomach aches, nausea, constipation and vomiting. He goes to a (sic) toilet on (sic) unpredictable and irregular basis.

   19.I am required to prepare for (sic) Rudo various herbal teas (sic) for his stomach/liver/diabetic symptoms (sic) in addition to (sic) medication he takes on a regular basis.

   20.I am in (sic) permanent (sic) fear (sic) that Rudo may fall down and injured (sic) himself for (sic) his knees, back and other conditions. This has had (sic) happened many time (sic) already. (sic) Most severe consequences occurred after Rudo’s falls (sic)  during his showering (sic) when he suffered (sic) fracture of his wrist (25 July 2017), then to his right knee (17 May 2017) and (sic) broken toe (27 January 2015).

   21.I need to follow (sic) and to take him to various appointments, doctors, shopping (sic) and everywhere else.

   22.It is not that he cannot move (sic) but he requires my (sic) and our son’s (sic) permanent assistance. We do not know what may (sic) occur to him because every time he move (sic) there is both (sic) need for the (sic) assistance and (sic) risk that he may fell (sic) again.

   23.He is unable (sic) without my (sic) or our son’s assistance (sic) to:

   -use public transport,

   -walk around a shopping centre or supermarket, and

   -stand up and move from sitting position.

   24.Rudo is unable to:

   -carry heavy bags or big boxes,

   -perform any activities above his shoulder height,

   -bend, nor (sic)

   -to (sic) sit for long time.

   25.Rudo has became (sic) very forgetful and depressed, his concentration and attention are reduced (sic) and for that reason (sic) I need to care about (sic) his medication and time for its consumption.

   26.Rudo also does not like to socialize (sic) with friends (sic) nor to go out any more.

   27.Our relationship and intimacy has been suffering too.

   28.Our son and I do work in and around (sic) house because Rudo cannot do it any more (sic).

   29.Rudo’s sleep is very poor and for (sic) that he is very nervous and of (sic) short temper.

   30.Rudo’s mood is very low and I am concerned for his wellbeing.

   31.Rudo used to work hard but he cannot work at all anymore.

   Hearing

3. The Applicant’s solicitor, Mr Dangubic, opened by relying on documents filed in the Tribunal, these included, the SOFIC (A1) and a number of reports (RM1-RM12).

4. Mr Dangubic stated that there was disagreement in respect to how the Impairment Tables were applied and the points allocated to each of the Applicant’s medical conditions. These were covered thoroughly in the Applicant’s submission. He stated that the Applicant was relying on the medical evidence submitted, which described the impact that each of the medical conditions have had on the Applicant’s quality of life.

5. The Respondent opened by relying on the SOFIC (R2) and agreed the Qualification Period was 24 October 2016 to 23 January 2017. The Respondent submitted that the Applicant had not undertaken a POS.

6. The Respondent referred to the criteria for the DSP and how the Impairment Tables were to be applied.

7. The Applicant, through his solicitor, gave no evidence and relied on his submissions filed with the Tribunal.

8. The Applicant’s closing remarks focussed on the SOFIC and the Applicant’s medical conditions against each of the Impairment Tables. He agreed the Applicant had not undertaken a POS.

9. The Respondent’s closing remarks focused on the Secretary’s position outlined in the SOFIC.

   CONSIDERATION

10. The Tribunal will now consider all the evidence before it, both written and oral, from the Applicant and Respondent.

    Whether the Applicant suffered from a physical, intellectual or psychiatric impairment or impairments

11. On the basis of the evidence before the Tribunal, at the date of the claim, it is not in dispute that the Applicant suffers from medical conditions which include and/or involve:  the liver; diabetes; hypertension; thrombophlebitis; the spine; and the knees.

12. The Tribunal notes the Applicant’s submission also contains claims relating to mental health conditions. Table 5 of the Impairment Tables clearly state:

    The diagnosis of this condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist) (T3 p44).

13. There is no such evidence before the Tribunal, nor was there any such evidence in the Applicant’s DSP claim. The Tribunal therefore, will not give this matter any further consideration.

14. There are numerous medical reports and other reports which attest to the fact that the Applicant suffers from the conditions stated in paragraph 46.

15. The Tribunal finds therefore, that the Applicant satisfies s 94(1)(a) of the Act.

    Whether the Applicant’s impairments receive an impairment rating of 20 points or more under the Determination

    Liver condition

16. The Applicant told the AAT1 (T2 p6):

    Mr Mlinarevic told the Tribunal that he is worried about the fatty tissue surrounding his liver. He fears his liver will be damaged.

17. The Tribunal notes that in 2012 the Applicant was the recipient of a liver transplant (T47 p211). This report, dated 17 October 2016, states the Applicant has to “…continue medication and ongoing life style change/controls.”

18. The Tribunal notes the JCA, dated 3 February 2017, which states that the Applicant’s Doctor (Dr Ong) is satisfied that he is coping, but must be under frequent observation (T49 p247). This condition is confirmed as fully diagnosed; fully treated; and fully stabilised (FDTS) (T49 p247).

19. The Tribunal notes the JCA report, dated 6 February 2017, which confirms the earlier assessment (T50 pp255-263).

20. The Tribunal notes Dr Trivedi’s report to Dr Ong, dated 14 September 2017 (T58 p279), which states: “He is taking multivitamins and there is no element of any abdominal pain or any significant reflux.”

21. The Tribunal notes Professor Jeffrey’s report to Dr Ong, dated 6 October 2017 (T60 p281), which states that the “[l]iver function tests were essentially normal. I have not altered his medications… We will review him again in six months’ time.”

22. The Tribunal notes the report of Dr Brankov, dated 28 November 2017 (T64 p295), that provides, “Mr Mlinarevic’s medical conditions, including his liver transplant, have severe impact (sic) on his social, recreational and travel activities.”

23. The Tribunal notes that Dr Brankov is an orthopaedic surgeon who had met the Applicant at the time of writing this report and two and a half years earlier (T64 p293).

24. The Tribunal notes the report of Dr Ong, dated 9 December 2017 (T64 p290), which states:

    … he has continued to be reviewed by the Hepatology Clinic at Royal Perth Hospital with no major changes or problems...His liver function tests were within normal limits and though ther (sic) has been no obvious problems he remains on constant watch as his condition can deteriorate quite quickly. I would therefore regard his liver condition as of moderate to severe functional impact on his work related or daily living activities.

25. The Tribunal notes the report of Dr Ong, dated 11 June 2018 (RM1 p1), which reflects the same assessment found in earlier reports that the Applicant is on constant watch. The Tribunal notes this report is written almost 18 months outside the Qualification Period.

26. Having considered all the medical evidence before the Tribunal, it determines this condition as FDTS. The medical evidence however, does not support a finding that the Applicant has issues impacting his digestion or reproductive function at the time of this Application. Apart from Dr Brankov’s report (RM5), which the Tribunal has noted, the medical evidence available describes this condition as being under control. The Tribunal therefore determines that this medical condition, under Table 10 of the Impairment Tables (T3 p65), generates zero points (T60 p281; T47 p111).

27. The Tribunal finds this condition is properly assessed under Table 10 of the Impairment Tables, as it impacts the digestive and reproductive function of the human anatomy. The medical reports, written approximately at the time of the DSP application from Professor Jeffrey and Dr Trivedi, suggest that this condition was under control. There were no suggestions of any significant functional impacts.

    Diabetes and Hypertension

28. The Applicant told the AAT1 (T2 p7):

    30.Mr Mlinarevic disagreed with Dr Ong’s view that these conditions are well managed. He said he takes his blood sugar and blood pressure readings every day. When his readings are high he takes medication.

    31.The Tribunal asked Mr Mlinarevic for his comment on Dr Ong’s statements that these conditions are well managed. Mr Dangubic objected to the Tribunal’s question on the basis that it was a medical question. The Tribunal respectfully disagreed.

    32.Mr Mlinarevic told the Tribunal that he checks his blood pressure, not Dr Ong, and so he knows whether it is well managed or not.

29. The Tribunal notes the report of Dr Ong, dated 17 October 2016 (T47 p211), which provided:

    … Following this his weight has been under control since and as such his DM Type 2 improved (sic) and at present he is off all his Diabetic medications (sic) but need (sic) constant watch, precise lifestyle changes and surveillance (sic) with help from his wife as to proper diet (sic) and general exercises to keep his condition under control.. (sic)

1. In respect to the medical condition of hypertension, Dr Ong, in his report dated 17 October 2016 (T47 p213) states: “Again a condition needing constant watch as it can deteriorate.”

2. The Tribunal notes the JCA report, dated 3 February 2017 (T49 pp247-250), which assesses these conditions as FDTS, on the basis of the medical evidence available for the Qualification Period.

3. The Tribunal notes the JCA report, dated 6 February 2017 (T50 pp255-263) confirmed the JCA, dated 3 February 2017 (T49 pp247-250).

4. The Tribunal notes the report of Professor Jeffrey, dated 6 October 2017 (T60 p281), which provides: “… he regularly takes his blood pressure at home where it is well controlled.”

5. Dr Ong’s report, dated 9 December 2017 (T64 p291), states: “… He has kept his diabetic condition under reasonable control basically under diet and lifestyle actions…”

6. In respect to the condition of hypertension, Dr Ong, in their report dated 9 December 2017 (T64 p291) states the Applicant:

   … has kept his reading reasonably under control (sic) though at times he has had higher readings when stress (sic). I would regard these two together as of moderate impact on his work related and living activities.

7. The Tribunal notes the report of Dr Ong, dated 11 June 2018 (RM1), which is some 18 months from the Qualification Period. It states these two conditions are under constant watch.

8. Having considered all the medical evidence before it, the Tribunal finds that these conditions are FDTS. There is no medical evidence, within the Qualification Period, which suggests that these conditions have resulted in functional impairment in respect to stamina or physical exertion.

9. The Tribunal finds that these conditions generate zero points as a result of the medical evidence before it, in particular; the reports of Dr Ong, Professor Jeffrey and the JCA reports.

10. Whilst Dr Ong, in his report dated 9 December 2017 (RM2), describes the conditions as having moderate impact, he does not make that assessment against the required descriptors under Table 1 of the Impairment Tables, in order to assist the Tribunal’s decision on whether the Applicant meets the conditions and thresholds for functional impairment.

    Thrombophlebitis

11. The Applicant told the AAT1 (T2 p7):

    38.Mr Mlinarevic told the Tribunal that he saw a specialist at Hollywood Private Hospital four months ago in relation to this condition. He was advised to wait six months after which the condition would be reviewed and consideration would be given as to whether further surgery is required.

12. The Tribunal notes Dr Ong’s report, dated 17 October 2016 (T47 pp212-213), which states, that after an operation on the Applicant’s veins in 2016: “… He will need constant watch (sic) for any further risk (sic) as to varicose veins problems (sic).”

13. The JCA report, dated 3 February 2017 (T49 p250), refers to ongoing monitoring of this condition post the 2016 operation.

14. The JCA report, dated 6 February 2017 (T50 p259), confirms the assessment of the earlier report.

15. Dr Ong’s report, dated 9 December 2017 (T64 p291), states:

    There has been no further diagnosis of Thrombophlebitis since the one treated in 2015 … I would indicate (sic) this (sic) as (sic) of mild negative impact on his work related or daily living activities.

16. Dr Brankov’s report, dated 28 November 2017 (T64 p294), states:

    Mr Mlinaric (sic) left leg varicose veins are fully established and treated (sic) including surgery. His residual varicose veins are permanent. That (sic) has mild functional impact on his activities of daily living.

17. Having considered the medical evidence before it, the Tribunal determines this condition is FDTS. Whilst the Tribunal notes that Drs Ong and Brankov describe this condition as mild, there is no medical evidence before the Tribunal that describes the nature of the functional impacts, with reference to Table 3 of the Impairment Tables. The Tribunal has no evidence before it, for the Qualification Period, describing the Applicant’s capacity to walk or climb stairs. The Tribunal finds no points can be generated for this condition.

    Spine

18. The Applicant told the AAT1 that (T2 pp8-9):

    46.… The Tribunal asked Mr Mlinarevic whether he had undertaken the physical rehabilitation program recommended by Dr Williams. He said he had not undertaken any supervised program (sic) but he had undertaken walking in a pool on several occasions. He was not able to recall when he had done this (sic) but thought it may have been around the time of Dr Williams’ report.

    47.The Tribunal asked Mr Mlinarevic the reason he did not participate in a supervised physical rehabilitation program as recommended by Dr Williams. His response was that he was unable to participate in such a program because he has issues. He repeated his earlier evidence that sometimes he cannot reach the toilet in time. He also referred to his shoulder problems and headaches.

    …

    50.Mr Mlinarevic told the Tribunal he is unable to sit for a long time. He said his wife drove him to the hearing and he was a passenger in the car for 15 minutes only. He said he is unable to do anything around the house.

19. Dr Baddour, an Orthopaedic Spinal Surgeon, stated in their report dated 8 June 2015 (RM9), that:

    Rudo’s MRI scan does not display any evidence of nerve root impingement at any level. He does have what appears to be many old compression fractures in his upper lumbar spine (sic) but these are certainly longstanding and there is (sic) no neurological impingement associated with these.

    I have advised Rudo to learn to live with his pain and that there is nothing sinister or of any great concern.

20. The Tribunal notes the report of Dr McLaren, a Consultant Orthopaedic Surgeon, dated 15 July 2015 (RM6 p3), which states:

    Mr Mlinarevic said he experiences pain in the right side of his lower back. The pain radiates towards his buttock. He said he is unable to sit for more than fifteen minutes and then needs to move around. However, I noted that he sat in excess of half an hour during the course of the consultation. He can walk for three to four hundred metres, slowly.

21. The Tribunal notes the report by Dr Williams, dated 10 December 2015 (T44 pp197-198 and 203 – 204), that states:

    … With regard to his lumbar pain, my advice is that he carries out a much more active physical rehabilitation program noting his poor muscle protection for his spine, noting previous liver surgery and then the hernia repair, and building up core muscle strength will improve the pre-existing lumbar pathology. He needs a pool program with gentle swimming strokes within comfort and a group water aerobics program and water-based exercises. He can carry out these in a health club gymnasium with supervision at the level of the gymnasium staff, attending 2-3 times a week over the coming six months to gain significant improvement in function. I do not believe hands-on physical therapy treatments or acupuncture treatments will be of any value and I do not believe there are any focal areas where specific injection techniques would be seen to be useful, and as Dr Baddour notes, there is no indication for surgery in management of his lumbar symptoms.

    …

    … With regard to the lumbar spine, he needs pool and Pilates (sic) schedules to build up core muscle strength about the spine noting his lack of abdominal muscle protection for the spine where there is evidence of significant pre-existing degenerative lumbar pathology. He needs pool and land-based exercise schedules focusing on the build up (sic) of core muscle strength about the spine …

22. Dr Ong’s report, dated 17 October 2016 (T47 p212), states:

    … He has been advised to continue with ongoing strengthening self exercises he has learnt including using hydrotherapy as often (sic) to keep his back problems under control (sic) as aggravations will occur (sic) and to delay deterioration as much and (sic) as long as we can, (sic) hence he must avoid activities like heavy lifting, frequent bending and repetitive use of the lower back.

23. The JCA report, dated 3 February 2017 (T49 p249), discusses that the Applicant might benefit from a pain management program and small exercises. The report assesses this condition as fully diagnosed but not fully treated and stabilised.

24. The JCA report, dated 6 February 2017 (T50 p257), confirms that assessment.

25. Dr Ong’s report, dated 9 December 2017 (T64 p290), states:

    … I am of the opinion that these conditions are unlikely to improve and are permanent. As far as his spinal problems are concern (sic) therefore (sic) I will regard them as of (sic) having severe impact on his work related or daily living activities.

26. Dr Brankov’s report, dated 28 November 2017 (T64 p293), states:

    His spinal condition and symptoms are fully established with investigation and specialist spinal surgeon consultation…In my opinion Mr Mlinarevic (sic) spine condition has severe functional impact (sic) on (sic) activities of daily living. I do not think that he can go back to the work force.

27. The Tribunal notes this report is some 11 months since the Qualification Period.

28. Dr Ong’s report, dated 11 June 2018 (RM1), states the Applicant has:

    … multiple vertebral fractures of the middle and lower back (sic) he has poor flexibility and mobility… He is therefore totally unfit (sic) in my opinion (sic) to work as he has difficulties even in his daily living activities still.

29. The Tribunal notes this report is some 18 months outside the Qualification Period.

30. The Tribunal finds that the condition is fully diagnosed. However, the Tribunal has no evidence before it to determine if the Applicant has undergone treatment in the form of Pilates and/or a pool program during the Qualification Period. As it appears that the recommended treatments have not been undertaken, the Tribunal is unable to determine whether the condition was fully treated and fully stabilised.  It appears from the medical reports of Drs Ong (T47 p212) and Williams (T44 pp197-198 and 203 – 204) that further treatment would be advantageous to the Applicant.

31. Therefore, the Tribunal finds this condition, at the time of the claim, to be fully diagnosed, but not fully treated and stabilised.

    Knee condition

32. The Applicant told the AAT1 (T2 p10):

    60.The Tribunal asked Mr Mlinarevic the reason he did not participate in a pool program as recommended by Dr Williams. He said he has issues including shoulder problems and headaches. Mr Mlinarevic told the Tribunal he has been unable to participate in any program because of his many falls. He has fractured his arms and knees in these falls. He fractured his arm in a fall in July 2017.

    …

    62.Noting that Mr Mlinarevic said he fell in the shower earlier this year, the Tribunal asked him whether his wife had been assisting him at those times. He said he was showering without her assistance at those times.

33. The Tribunal notes that the Applicant underwent knee surgery (T20 p150).

34. The Tribunal notes Dr Leeks’ (Orthopaedic Surgeon) report, dated 28 January 2015 (T24 p154), which is two weeks post the Applicant’s surgery. In this report, Dr Leeks remarks that: “… I have asked him to get back into his physiotherapy and I will review him in 4 weeks (sic) time.”

35. Dr Leeks’ report, dated 25 February 2015 (T25 p155), states (as a result of the Applicant complaining about pain): “At this stage (sic) I have just said we are going to have to wait and see what happens and I will be reviewing him in 6 weeks.”

36. The Tribunal notes Dr Ong’s report, dated 3 April 2015 (T27 pp157-159), which outlines the Applicant’s continual ongoing pain and weakness with his left knee. In this report, Dr Ong states: “… His left knee pain…even after the operation definitely restrict (sic) his capacity for (sic) all aspect (sic) of activities.”

37. The Tribunal notes that the Applicant has had further scans of both his knees in order to determine his ongoing pain. The Tribunal notes Dr Leeks’ report, dated 9 June 2015 (T37 p171), which states:

    I believe Rudo warrants a second arthroscopy and I would like to add a lateral release at the same time. Ideally (sic) a tibial tubercle transfer on the left side could be performed but this does add a significant rehabilitation component and recovery time…

38. The Tribunal notes Dr McLaren’s report, dated 15 July 2015 (T39 p179), in response to the question of inconsistencies: “There was evidence of good functional range of motion in the knees, but Mr Mlinarevic was reluctant to bend the knee during formal examination.”

39. The Tribunal notes Dr Williams’ report, dated 10 December 2015 (T44 pp198-199), which states:

    Dr Brankov recommended he continue with bracing and non-operative therapy to relieve his symptoms. I would add the importance of the pool program (sic) where with weight-bearing relief (sic) he can walk and swim and build up quadriceps strength about the knee (sic) without weight-bearing, twisting and turning demands. I would see the water-based program (sic) important in providing relief of his knee symptoms.

40. Dr Williams stated further in respect to future work (T44 p199): “…He saw any work would be sedentary.”

41. The Tribunal notes Dr Ong’s report, dated 17 October 2016 (T47 p212), which states:

    He (sic) was suggested post operations (sic) to continue with ongoing exercises to strengthened (sic) knees (sic) muscles and weight control (sic) to delay any deteriorations of both knee joints.

42. The Tribunal notes the JCA report, dated 3 February 2017 (T49 p249), which assess that the Applicant would benefit from a water based exercise program. This is confirmed in a later JCA report, dated 6 February 2017 (T50 258).

43. The Tribunal notes Dr Ong’s report, dated 9 December 2017 (T64 p291), which states:

    It is my opinion that his knees (sic) problems are permanent and therefore regards (sic) as of (sic) severe negative impact on his work related and daily living activities.

44. The Tribunal notes Dr Brankov’s report, dated 28 November 2017 (T64 p294), which states:

    In my opinion (sic) Mr Mlinarevic has severe functional impact (sic) on activities of daily living using (sic) lower limbs. I do not think that Mr Mlinarevic can be recruited into the work force as his symptoms (sic) in both knees (sic) will deteriorate rather than improve in the future.

45. The Tribunal notes Dr Ong’s report, dated 11 June 2018 (RM1), which confirms earlier reports about the restrictions the Applicant faces, in terms of their functional abilities.

46. The Tribunal finds that after reviewing the medical evidence before it, that this medical condition is fully diagnosed. There is no evidence before the Tribunal indicating that the Applicant has completed his treatment regime. He was asked to undertake water based exercise programs at the time of this claim by his medical professionals, but it appears that this has not been done.

47. The Tribunal finds, that the medical evidence suggests, water based exercise programs are an important component of the treatment and rehabilitation of the Applicant. The Tribunal therefore finds this condition is fully diagnosed, but not fully treated and stabilised.

    Whether the Applicant has a continuing inability to work

48. The Tribunal finds that the Applicant has zero points under the Impairment Tables, and therefore fails to satisfy s 94(1)(b) of the Act. Given this finding, it is not necessary for the Tribunal to consider s 94(1)(c) of the Act.

    DECISION

49. For the reasons given above, the Applicant does not qualify for the DSP. The decision of AAT1 is affirmed.

I certify that the preceding 112 (one hundred and twelve) paragraphs are a true copy of the reasons for the decision herein of Member C Edwardes

.............................[SGD]...........................................

Associate

Dated: 11 January 2019

Date(s) of hearing:	17 December 2018
Representative for the Applicant:	Mr Dangubic
Solicitors for the Applicant:	Frichot & Frichot Lawyers and Notaries Public
Representative for the Respondent:	Ms Moore