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

Nedelkovski and Secretary, Department of Social Services (Social services second review) [2016] AATA 163 (18 March 2016)

Division

GENERAL DIVISION

File Number(s)

2015/4865

Re

Nikola Nedelkovski

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal
Mr Conrad Ermert, Member

Date 18 March 2016

Place Melbourne
The Tribunal affirms the decision under review

........................................................................
Mr Conrad Ermert, Member
Catchwords
SOCIAL SECURITY – disability support pension – qualification period - physical, intellectual or psychiatric impairments – whether impairments attracted a rating of 20 points or more - continuing inability to work – program of support not completed - decision affirmed
Legislation
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
REASONS FOR DECISION
Mr Conrad Ermert, Member
18 March 2016

Mr Nedelkovski, the Applicant, worked for 28 years as a forklift driver before sustaining a back injury that was the subject of a workers’ compensation claim. On 22 January 2015 Mr Nedelkovski lodged a claim for Disability Support Pension (DSP) with Centrelink. Centrelink is the service provider for the Department of Social Services, the Respondent. In his claim he listed as his disabilities and injuries: Lumbar spine injury. Leg injury. Depression.
On 18 February 2015 a Centrelink officer determined that Mr Nedelkovski was not qualified for DSP because his impairments did not attract a total of 20 points according to the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables). On 8 April 2015 a Centrelink authorised review officer (ARO) affirmed this decision. Mr Nedelkovski sought a first review of the ARO decision by this Tribunal. On
18 August 2015 the Tribunal affirmed the ARO’s decision.
This matter is the second review of the ARO decision.
HEARING
At the hearing Mr Nedelkovski represented himself and gave his evidence under oath with the assistance of an interpreter in the Macedonian language. Mr Lessing, a solicitor with Sparke Helmore, represented the Respondent.
I had before me the documents provided by the Respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents).
For the Respondent I considered the Respondent’s Statement of Facts, Issues and Contentions dated 1 February 2015. I took into evidence the following documents:
·Exhibit R1 - Letter from Matchworks dated 4 December 2015;
·Exhibit R2 – Letter from Matchworks dated 1 April 2015; and
·Exhibit R3 - Report by Dr Harold Lifson dated 9 November 2015.
LEGISLATION
The legislation relevant to this matter is contained in the Social Security Act 1991 (the Act).
Section 94 of the Act relevantly prescribes qualification for DSP:
(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.
A person’s impairment is assessed by reference to the Impairment Tables.
QUALIFICATION PERIOD
Sections 41 and 42 and Schedule 2 of the Social Security (Administration) Act 1999 (the Administration Act) stipulate that the date for the determination of the claim is the date of the claim. The only exception is where a person is not qualified on the date of claim but becomes qualified within 13 weeks of lodging the claim, in which case their start day is the day they become qualified.
In this case the qualification period runs from 22 January 2015, the day on which the claim was lodged, to 23 April 2015.
ISSUES
The issues are whether, during the qualification period, Mr Nedelkovski:
·had any physical, intellectual or psychiatric impairments; and, if so,
·the impairments attracted a rating of 20 points or more under the Impairment Tables; and, if so
·he had a continuing inability to work.
EVIDENCE
In his evidence Mr Nedelkovski said that Centrelink staff told him to go to Matchworks, an employment provider. He stated that the staff at Matchworks told him that they could not find work for him. Mr Nedelkovski described the works undertaken in his house to make it suitable for his disabilities. He said that his son had paid for all the treatment for his back condition.
In answer to questions from Mr Lessing, Mr Nedelkovski stated:
(a)He recently commenced hydrotherapy treatment but has since ceased; his son had to take him there and back and help him undress and dress; and
(b)He drove into the hearing in his four-wheeled drive Jeep vehicle which took about half an hour.
Mr Lessing referred to the letter from Matchworks dated 4 December 2015 (Exhibit R1) which recorded the following entry for 26 March 2015:
We advised client that he does not need to attend appointments with Matchworks as long as he is not receiving any assistance (Payments) from CL. We advised him that he will be exited from DES Program. He informed that he will go to CL immediately and seek clarification.
Mr Nedelkovski agreed that the statement was correct.
In the same document the entry for 1 April 2015 reported efforts made by Matchworks to contact Mr Nedelkovski by telephone and leave voice messages which were not returned. Mr Nedelkovski stated that he did not receive the calls or voice messages and that the entry was untrue. He agreed that he received the letter from Matchworks dated 1 April 2015 (Exhibit R2) which recorded that he voluntarily no longer wished to participate with their services. Mr Nedelkovski stated he was confused.
When asked about the conduct of his consultations with Dr Lifson, Mr Nedelkovski said the doctor would ask questions and he would answer. He said he had only one consultation with Dr Sheehan. Mr Nedelkovski described the consultation as being quick. He was asked only about his work and his medications. He agreed he stood throughout the interview.
When referred to the Job Capacity Assessment report dated 17 February 2015 Mr Nedelkovski said he could not remember attending such an interview. He said he uses his walking stick constantly, and can stand up from a chair by using the stick. He said can bend his knees with difficulty and only when sitting. He said he can sit at home on his high chair for 15 to 30 minutes depending on his condition and medications at the time.
Asked about his driving Mr Nedelkovski said he would drive to his psychologist which took approximately 20 minutes. He said he could drive for about half an hour and would then have to stop for a break. He disagreed with the assessment of Dr Sheehan that he could drive for one hour. When asked about his evidence at the first tribunal hearing, where he said hedrove for one hour to get to the hearing, Mr Nedelkovski said that he had to stop twice on the way to vomit.
Responding to questions about his activities Mr Nedelkovski said:
(a)He could shop with his wife for about half an hour but would support himself on shelves and walls;
(b)He cannot use public transport because he cannot use the seats and has to stand;
(c)He does not use public transport as he has no need to do so; his family and friends provide transport for him;
(d)When mowing the lawns his son starts the mower for him and he walks with the support of the mower;
(e)In helping with the dishes he only washes his coffee cup; and
(f)When visiting family and friends he just sits in a corner and only for a very short time.
Referring to the observation by Dr Sheehan (T-Documents, page 60) that his concentration was unimpaired during the interview, Mr Nedelkovski stated that he sometimes needed prompting.
Taken to the evidence he gave to the first Tribunal hearing (T-Document T2) Mr Nedelkovski confirmed the description of his daily routines in paragraphs 15 to 17 but added that when he visits friends and neighbours he does not stay long.
In regard to his ability to walk Mr Nedelkovski stated he could walk 100 to 150 metres but it would depend on how he felt at the time. He would try to walk for five or six houses but would have to stop on the way. He agreed he could walk for 15 minutes and said he could walk even further but with pain and frequent stops. He agreed with the report of Dr Sheehan (T-Documents, page 59) that he could walk for about 30 minutes but added that he has to stop often when doing so.
Mr Lessing put to Mr Nedelkovski that he could learn to undertake light, less skilled employment, such as customer service, as reported by the JCA in the report submitted 30 March 2015 (T-Documents, page 70). Mr Nedelkovski responded that he was not begging anyone.
In answer to my questions Mr Nedelkovski said:
(a)In his consultations Dr Lifson would take his blood pressure, examine his back, ask him to bend forward, ask questions and measure his leg;
(b)Dr Sheehan examined his leg, asked him to bend forward, and that was all;
(c)He could not remember being interviewed by a JCA on 24 March 2015 but he did remember seeing a woman who asked questions and looked at his tablets; and
(d)He had no idea how Dr Sheehan came to the conclusion that he could drive for one hour.
TRIBUNAL CONSIDERATIONS
Does Mr Nedelkovski have an Impairment? (section 94(1)(a))
The Respondent concedes, correctly in my opinion, that during the qualifying period

Mr Nedelkovski had impairments from the following conditions, which satisfied the requirements of section 94(1)(a) of the Act:
·Spinal condition, and
·Psychological condition.
The concession is supported by the evidence, and I find accordingly.
I note in that in reaching its first review decision the Tribunal found that Mr Nedelkovski also suffered from sleep apnoea and hypertension which have an effect on his ability to function. This finding is supported by the evidence of Dr Lifson in his report dated 31 January 2015. I note also that the Respondent includes these conditions in the Secretary’s Statement of Facts, Issues and Contentions.
Based on the medical evidence I find that the conditions of sleep apnoea and hypertension also satisfy the requirements of section 94(1)(a) of the Act.
Do the Impairments attract an Impairment Rating of 20 points or more?
(section 94(1(b))
I must now determine whether Mr Nedelkovski’s impairments attract a rating of 20 points or more under the Impairment Tables according to section 94(1)(b) of the Act.
Section 6(3) of the Impairment Tables provides that a rating can only be assigned to an impairment if the person’s condition is permanent and if the impairment is more likely than not to persist for more than two years. Section 6(4) provides that a condition is permanent if the condition has been fully diagnosed by an appropriately qualified medical practitioner, and has been fully treated and fully stabilised.
Section 6(5) of the Impairment Tables provides that for a condition to be fully diagnosed and treated by an appropriately qualified medical practitioner the following considerations apply:
(a)whether there is corroborating evidence of the condition;
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
I will consider each of the conditions in turn.
Spinal Condition
In the Secretary’s Statement of Facts, Issues and Contentions the Secretary accepts that the spinal condition is of longstanding date and is fully diagnosed, treated and stabilised. There is considerable medical evidence to support this concession. I find that the spinal condition is fully diagnosed, treated and stabilised. As a result the impairment resulting from this condition can be assessed by reference to the Impairment Tables.
The relevant tables are Table 3 Lower Limb Function and Table 4 Spinal Function. The Introductions to the tables provide that self-reported symptoms are insufficient and there must be corroborating evidence from health professionals.
The relevant corroborated evidence is contained in the following reports:
(a)Report of Dr Lifson dated 31 January 2015 (T-Document T5) which records:
Low back pain and stiffness, leg pain and swelling … unable to bend to pick up light objects from a desk or table, unable to remain seated for > 10 minutes;
(b)JCA report dated 17 February 2015 (T-Document T6) which records:
Medical report confirmed the client has difficulties with bending and sitting over 10 minutes. The client demonstrated he could bend to his knees with difficulties. The client reported he travels to St Albans to see his psychologist which would be approximately a 30 minute drive. The client was observed to sit for approximately 18 minutes during the assessment but preferred to use the chair that had a height increase. The client was observed to use a stick when walking and was seen to rise from his chair independently;
(c)Report of Dr Lifson dated 14 March 2015 (T-Document T9) which records:
Constant low back pain and stiffness – worse at times with minimal activity necessitating bedrest, Bilateral leg pain, variable very painful left leg swelling, very limited walking distance … Unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities, unable to use stairs without assistance, unable to remain seated for at least 10 minutes, unable to bend forward to pick up a light object placed at knee height; and
(d)Report of Dr Sheehan dated 24 February 2015 (T-Document T10) which records:
He said he will go for a walk for about 30 minutes and can mow the lawn although someone else will have to start the mower. He may help his wife with the dishes. He said that his wife does all other household chores. He said that they do the grocery shopping together. He said he sometimes will go out with his wife and friends to listen to music. He said he does not have any particular hobbies now. He said he watches some television but finds it difficult to sit too long. He said he needs some assistance from his wife with dressing and bathing. He said he is able to drive a motor vehicle for one hour. He said he does not use public transport as it is unstable … walked slowly using a walking stick. He stood throughout most of the interview or leant against a couch … .
I note also the report of Dr Lifson dated 9 November 2015 which essentially reiterates the comments of his earlier report. In addition the description of the symptoms is expressed in the present tense. This indicates to me that his assessments are those of the current state of Mr Nedelkovski’s impairments rather than their state during the qualifying period. I prefer the more contemporaneous reports dated 31 January and 14 March 2015.
The Respondent concedes that Mr Nedelkovski’s impairments attract five points under Table 3. I will consider whether the impairments attract a higher rating.
The relevant descriptors for a rating of 10 points are:
(1) At least one of the following applies:
a.    The person is unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities; or
b.    … ;
c.    … ; and
(2) The person is able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket.
(3) This impairment rating level includes a person who can:
a.    … ;or
b.    Move around independently using walking aids (e.g. quad stick, crutches or walking frame).
I note the evidence of the JCA and Dr Sheehan that Mr Nedelkovski walks slowly and needs to use a walking stick. There is no dispute that Mr Nedelkovski needs to drive to the local shops and community facilities. I accept this as sufficient to satisfy the requirements of descriptor (1)(a). There is also no dispute that Mr Nedelkovski is able to use a motor vehicle and walk around in a shopping centre. Accordingly I find the Mr Nedelkovski satisfies the requirements for 10 points under Table 3.
The descriptors for a rating of 20 points include that the person is unable to walk around a shopping centre without assistance, walk from the carpark into a shopping centre without assistance or stand up from a sitting position without assistance. There is no evidence that Mr Nedelkovski satisfies these requirements. As a result I find that Mr Nedelkovski’s impairments do not attract a rating of 20 points under Table 3.
The Respondent concedes also that Mr Nedelkovski’s impairments attract a rating of five points under Table 4 Spinal Function. I will consider whether the impairments attract a higher rating.
The relevant descriptors for a rating of 10 points are:
(1) The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:
a.    The person is unable to sustain overhead activities (e.g. accessing items over head height); or
b.    The person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or
c.    The person is unable to bend forward to pick up a light object placed at knee height; or
d.    The person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).
The medical evidence corroborates Mr Nedelkovski’s evidence that he is able to drive a car for at least 30 minutes. There is no evidence regarding his ability to sustain overhead activities ((1)(a)) or look in all directions ((1)(b)). There is no dispute in the evidence that he does not need assistance to get up out of a chair.
In regard to Mr Nedelkovski’s ability to bend forward I note the observation of the JCA that Mr Nedelkovski demonstrated he could bend to his knees with difficulties. In his report of 31 January 2015 Dr Lifson records that Mr Nedelkovski is unable to bend to pick up light objects from a desk or table. However in his report of 14 March 2015 Dr Lifson records Mr Nedelkovski is unable to bend forward to pick up a light object placed at knee height.
As the JCA reported the observation that Mr Nedelkovski can bend to his knees, albeit with difficulty, I do not accept as accurate Dr Lifson’s assessment that Mr Nedelkovski is unable to bend forward to pick up a light object from a desk or table. In considering whether Mr Nedelkovski is able to pick up a light object placed at knee height I note the JCA’s qualification that Mr Nedelkovski can bend to knee height with difficulty. I am not satisfied that this description is sufficient to accept that he is able to pick up a light object placed at knee height.
I consider on balance that Dr Lifson’s assessment is a better description of the level of impairment. I find that Mr Nedelkovski is unable to pick up a light object placed at knee height. Accordingly Mr Nedlekovski’s impairment satisfies descriptor (1)(c). I find that Mr Nedelkovski’s impairment under Table 4 attracts a rating of 10 points.
In considering whether his impairment attracts a rating of 20 points I note there is no evidence that Mr Nedelkovski is unable to perform any overhead activities (1)(a) or turn his head or bend his neck without moving his trunk (1)(b). In regard to his ability to bend forward to pick up a light object from a desk or table I accept the observation of the JCA that Mr Nedelkovski can bend to his knees. Based on that observed ability I do not accept the report of Dr Lifson that Mr Nedelkovski is unable to bend forward and pick up a light object from a desk or table (1)(c). There is no dispute that Mr Nedelkovski can remain seated for at least 10 minutes.

From the evidence I find that Mr Nedelkovski’s impairment does not attract 20 points from Table 4.
For his spinal condition I find that Mr Nedelkovski’s impairment attracts 10 points under Table 3 and 10 points under Table 4.
Psychological Condition
In the Secretary’s Statement of Facts, Issues and Contentions the Secretary accepts that the psychological condition is fully diagnosed, treated and stabilised. There is considerable medical evidence to support this concession. I find that the psychological condition is fully diagnosed, treated and stabilised. As a result the impairment resulting from this condition can be assessed by reference to the Impairment Tables.
The relevant table is Table 5 Mental Health Function. The Introduction to this table provides that self-reported symptoms are insufficient and there must be corroborating evidence of the person’s impairment. Examples of corroborating evidence include, but are not limited to, the following:
·A report from the person’s treating doctor;
·Supporting letters, reports or assessments relating to the person’s mental health or psychiatric illness; and
·Interviews with the person and those providing care or support to the person.
The relevant corroborated evidence is contained in the following reports:
(a)Report of Dr Lifson dated 14 March 2015 (T-Documents page 51) which records:
Has very limited social contacts and involvement unless these are organised for the person, has difficulty interacting with other people and may need assistance or support from a companion to engage in social interactions;
(b)Report of Dr Sheehan dated 24 February 2015 (T-Documents pages 57 to 63) which records relevantly:
He said he can become frustrated and upset when he wants to do something and his injury prevents him … he is anxious and worries about his life “not a life I like to live”. He said he can go to the shops but becomes anxious and upset when people ask why he is not working or why he is not back at work. Mr Nedelkovski said he feels unhappy and feels that “I was very happy but it died”. He said that when he goes out with his wife he tries to be happy. He reported no suicidal thoughts or plans … He said he sometimes will go out with his wife and friends to listen to music. He said he does not have any particular hobbies now … His affect was generally reactive and appropriate … Insight and judgement appeared intact. There was no evidence of perceptual disorder. He appeared of average intellect on the basis of his educational background and verbal skills. Memory and concentration were unimpaired during the interview.
(c)Report of Mr Stojcevski dated 14 August 2015 (T-Document T18) which records relevantly:
Mr Nedelkoski has consistently presented to me with very strong pain and a pain focus, numbness, restricted range of motion and weakness leading to psychological symptoms of depression, frustration, anxiety and fear … Moderate to extremely severe levels of anxiety and depression … Lowered frustration tolerance, particularly manifesting in agitation and arguments with family members … Isolation with the brooding turning to suicidal ideation have been reported, analysed, treated and monitored such that his present risk for suicide are low but contained … Interpersonal difficulties including a decrease in socializing outside of the nuclear family … Perceptions of strong shame having to rely on his family and not contribute to his and their financial future … Frustrations at not being able to conduct normal personal hygiene …Loss of autonomy …Marital tension and complications within the marital relationship … at times we have the Pain, Depression and Adjustment factors all interacting with his physiological problems and environmental stressors. His thinking and functioning skills are at times unrecognizable to the patient himself …He has been motivated to get better, but he is stymied by anatomy and physiology that have limited his self evaluation … The complexity of the pain and the lack of sustained physical betterment have meant that Mr Nedelkovski has not been able to return to work in any role … It is my opinion that Mr Nedelkovski is experiencing levels of pain and psychological symptomatology that prevent him from participating in any work duties.
The Respondent concedes that Mr Nedelkovski’s impairments attract five points under Table 5. I will consider whether the impairments attract a higher rating.
The relevant descriptors for a rating of 10 points are:
(1) The person has moderate difficulties with most of the following:
(a)Self-care and independent living;
Example: The person needs some support (that is, and occasional visit by or assistance from a family member of support worker) to live independently and maintain adequate hygiene and nutrition.
(b)Social/recreational activities and travel;
Example 1: The person goes out alone infrequently and is not actively involved in social events.
Example 2: The person will often refuse to travel alone to unfamiliar environments.
(c)Interpersonal relationships;
Example: The person has difficulty making and keeping friends or sustaining relationships.
(d)Concentration and task completion;
Example 1: The person finds it very difficult to concentrate on longer tasks for more than 30 minutes (such as reading a chapter from a book).
Example 2: The person finds it difficulat to follow complex instructions (such as from an operating manual, recipe or assembly instructions).
(e)Behaviour, planning and decision-making;
Example 1: The person has difficulty coping with situations involving stress, pressure or performance demands.
Example 2: The person has occasional behavioural or mood difficulties (such as temper outbursts, depression, withdrawal or poor judgement).
Example 3: The person’s activity levels are noticeably increased or reduced.
(f)Work/training capacity.
Example: The person often has interpersonal conflicts at work, education or training that require intervention by supervisors, managers or teachers or changes in placement or groupings.
Mr Nedelkovski lives with his wife and adult son. He gave evidence that he needed help from his son to dress and undress when going to hydrotherapy sessions. I note that Mr Stojcevski specifically notes Mr Nedelkovski’s frustration at not being able to maintain normal personal hygiene. I accept that this evidence is sufficient to satisfy the requirements of descriptor (1)(a).
In regard to social activities and recreation ((1)(b)) I note the comments of Dr Lifson that Mr Nedelkovski has very limited social contacts and involvement unless these are organised for the person, has difficulty interacting with other people and may need assistance or support from a companion to engage in social interactions. This is not consistent with Mr Nedelkovski’s own description of his visits to friends to listen to music. However Mr Nedelkovski’s evidence was that his wife was with him for these visits.
Dr Sheehan records that Mr Nedelkovski will sometimes go out with his wife and friends to listen to music. Mr Stojcevski records a decrease in Mr Nedelkovski’s socializing.
Mr Nedelkovski stated in evidence that he no longer participates in hobbies or activities. This is corroborated in the report of Dr Sheehan.
From the evidence I am satisfied that Mr Nedelkovski has moderate difficulty in social and recreational activities and satisfies descriptor (1)(b).
In regard to interpersonal relationships I note Dr Lifson states that Mr Nedelkovski has difficulty interacting with other people. However there was no evidence to this effect from Mr Nedelkovski himself. He gave no evidence that he had difficulty making and keeping friends or sustaining relationships as given in the example of this descriptor. Indeed his evidence is that of someone who gains pleasure from his interactions with his friends.
Dr Sheehan reported that Mr Nedelkovski goes out with his wife and friends to listen to music but makes no direct reference to difficulties with making or keeping friends. Mr Stojcevski records that Mr Nedelkovski experiences interpersonal difficulties including a decrease in socializing outside of the nuclear family, however there is no evidence to this effect from Mr Nedelkovski. Mr Stojcevski recorded also Marital tension and complications within the marital relationship. Considered with the evidence of his shopping and visiting activities with his wife, and in the absence of evidence related to the degree of tension, I accept this description as conforming more to the example for a rating of five points, namely: the person has interpersonal relationships that are strained with occasional tension or arguments.
I am not satisfied that there is evidence to support the description given in (1)(c) for a rating of 10 points.
In considering the activities of concentration and task completion (d) and behaviour, planning and decision-making (e) I note the evidence of Mr Stojcevski that Mr Nedelkovski’s thinking and functioning skills are at times unrecognizable to the patient himself. In contrast I note the evidence of Dr Sheehan that His affect was generally reactive and appropriate … Insight and judgement appeared intact. There was no evidence of perceptual disorder. He appeared of average intellect on the basis of his educational background and verbal skills. Memory and concentration were unimpaired during the interview. I prefer the evidence of the psychiatrist, Dr Sheehan, and find that Mr Nedelkovski’s impairments do not satisfy the descriptors in (1)(d) and (1)(e).
In regard to the work/training capacity (1)(f) there is no evidence that supports the likelihood that Mr Nedelkovski often has interpersonal conflicts at work, education or training that require intervention by supervisors, managers or teachers or changes in placement or groupings. Mr Stojcevski reports in regard to employment that Mr Nedelkovski is stymied by anatomy and physiology. This is clearly different from issues of interpersonal conflict. I do not accept there is evidence to support this descriptor.
I find that Mr Nedelkovski’s impairments satisfy only two of the descriptors required for a rating of 10 points. This is insufficient to meet the requirement that he has difficulties with most of the descriptors. Accordingly I find that Mr Nedelkovski’s psychological impairment under Table 5 attracts a rating of five points.
Other Conditions
Sleep Apnoea and Hypertension
In his reports dated 31 January and 14 March 2015 Dr Lifson reports that Mr Nedelkovski has the conditions of sleep apnoea and hypertension that are generally well managed and that cause minimal or limited impact on ability to function. As there is only minimal or limited impact on his ability to function, these conditions attract zero points from the Impairment Tables.
Total Impairment Rating
For Mr Nedelkovski’s conditions at the time of qualifying period I have found the following:
(a)Spinal condition – 10 impairment points from Table 3 and 10 impairment points from Table 4;
(b)Psychological condition – 5 impairment points;
(c)Sleep apnoea – zero impairment points; and
(d)Hypertension – zero impairment points.
The total impairment rating at the time of the qualifying period is 25 impairment points.
I will now consider whether Mr Nedelkovski has a continuing inability to work as prescribed is sun-section 94(1)(c) of the Act.
Does Mr Nedelkovski have a Continuing Inability to Work? (section 94(1)(c))
Section 94(1)(c) of the Act provides that to qualify for DSP a person must have a continuing inability to work. Section 94(2) of the Act provides:
(1) 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) … the person has actively participated in a program of support within the meaning of subsection (3C) …
Section 94(1)(3B) provides that 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.
Although Mr Nedelkovski has impairments rating a total of 25 points, none of his impairments attract 20 points from a single Impairment Table. Accordingly, none of his impairments are severe in terms of the Act.
As Mr Nedelkovski does not have a severe impairment, he must have actively participated in a program of support. The Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (the POS Determination) provides, in paragraph 5, that a person has actively participated in a program of support if he has participated in a POS for 18 months within the 36 months prior to the date of claim and complied with the requirements of the program.
In the Secretary’s Statement of Facts, Issues and Contentions the Respondent submits The Applicant’s records {T28/113} indicate that he did not attend job support provider Matchworks until March 2015, and therefore cannot demonstrate 18 months of active participation prior to the claim being made in January 2015. Although Mr Nedelkovski disagrees with the details provided by Matchworks regarding their attempts to contact him, he does not contend that he participated in a POS.
Mr Nedelkovski contends that he did not participate in the POS because Matchworks told him they could not find a position for a person with his disabilities. This version is not supported by the correspondence from Matchworks which state that he did not commence a program and was voluntarily exited from their services on 1 April 2015. In any case Mr Nedelkovsi’s reasons for leaving the program do not fall into any of the exceptions in paragraphs 5(3) to 5(5) of the POS Determination. Mr Lessing submitted that Mr Nedelkovski does not satisfy the POS requirements.
From the evidence, I find that Mr Nedelkovski has not actively participated in a POS. As a result he does not satisfy the provisions of section 94(2) of the Act and cannot be found to have a continuing inability to work.
There are no other sections of the Act which can provide an exemption from this requirement. Accordingly, I find that, during the qualifying period, Mr Nedelkovski did not satisfy the provisions of section 94(1)(c) of the Act.
CONCLUSION
To qualify for the DSP a person must, during the qualification period, satisfy all subsections of section 94(1) of the Act. Mr Nedelkovski did not satisfy the requirements of section 94(1)(c) of the Act. As a result, he could not satisfy all the provisions of section 94(1) of the Act. The result is that during the qualification period Mr Nedelkovski was not qualified for DSP and I find accordingly.
As Mr Nedelkovski was not qualified for DSP during the qualifying period I find that the decision to reject his application for DSP was the correct and preferable decision.
DECISION
I affirm the reviewable decision.

I certify that the preceding 81 (eight-one) paragraphs are a true copy of the reasons for the decision herein of Mr C Ermert, Member
.......................[sgd].................................................
Associate
Dated 18 March 2016

Date of hearing

19 February 2016

Applicant

In person

Advocate for the Respondent

Mr J Lessing

Solicitors for the Respondent

Sparke Helmore

[2016] AATA 163

18 March 2016

Key Legal Topics

Areas of Law

Social Security Law

Legal Concepts

Disability Support Pension

Impairment Rating

Continuing Inability to Work

Division	GENERAL DIVISION
File Number(s)	2015/4865
Re	Nikola Nedelkovski
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

Tribunal	Mr Conrad Ermert, Member
Date	18 March 2016
Place	Melbourne

Date of hearing	19 February 2016
Applicant	In person
Advocate for the Respondent	Mr J Lessing
Solicitors for the Respondent	Sparke Helmore