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

Nenadovic and Secretary, Department of Social Services (Social services second review) [2017] AATA 1508 (18 September 2017)
Division:GENERAL DIVISION
File Number: 2017/1434
Re:Milan Nenadovic
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:18 September 2017
Place:Brisbane

The Tribunal affirms the decision under review.
.........................[Sgd]...............................................
Member D K Grigg
CATCHWORDS
SOCIAL SECURITY – disability support pension – DSP – whether 20 points or more under the impairment tables during the relevant period – decision under review affirmed.
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
REASONS FOR DECISION
Member D K Grigg
18 September 2017
INTRODUCTION AND CLAIMS HISTORY

Mr Nenadovic was a recipient of the Disability Support Pension (“DSP”) since 3 October 2006.[1]
[1] Exhibit 1, T Documents, T29, page 169, Centrelink records.
Between December 2006 and May 2016, Mr Nenadovic travelled outside of Australia on 14 occasions[2] and on 17 May 2016, applied to the Department of Human Services (“Centrelink”) for unlimited portability for his DSP.[3] Unlimited portability allows recipients of DSP to travel overseas for an indefinite period while still receiving the DSP.
[2] Exhibit 2, Secretary's Statement of Facts and Contentions dated 8 August 2007, Attachment A, Movement
Records of Mr Nenadovic.
[3] Exhibit 1, T Documents, T 19, pages 106 – 107, Centrelink Notice: Request for Unlimited Portability dated 17 May
2016.
In order to assess whether Mr Nenadovic was eligible for unlimited portability of his DSP, Centrelink required a medical review and a Job Capacity Assessment (“JCA”) to be undertaken.
After the medical review and JCA, Centrelink determined, on 4 October 2016, that Mr Nenadovic was no longer qualified to receive DSP and as a result, it was cancelled.[4]
[4] Exhibit 1, T Documents, T 24, pages 136 – 137, Letter from Centrelink to Mr Nenadovic dated 4 October 2016.
Mr Nenadovic sought a review of Centrelink’s decision to cancel his DSP by an Authorised Review Officer (“ARO”).[5] The subsequent review by the ARO was unsuccessful on the grounds that Mr Nenadovic’s medical conditions did not attract 20 points or more under the Impairment Tables.[6]
[5] Exhibit 1, T Documents, T 25, page 138, Application for Review of Decision dated 4 October 2016.
[6] Exhibit 1, T Documents, T 26, pages 139 – 144, Decision of ARO dated 25 October 2016.
On 21 November 2016, Mr Nenadovic lodged an application for review with the Social Services and Child Support Division (“SSCSD”) of this Tribunal.[7] The SSCSD rejected Mr Nenadovic’s claim and affirmed the ARO’s decision on 8 February 2017.[8]
[7] Exhibit 1, T Documents, T 28, page 147, Letter advising of appeal to AAT1 dated 21 November 2016.
[8] Exhibit 1, T Documents, T2, page 6, SSCSD’s Decision and Reasons for Decision dated 8 February 2017.
Mr Nenadovic has sought a review of the SSCSD’s decision by this Tribunal.[9]
[9] Exhibit 1, T Documents, T1, page 1, Mr Nenadovic’s Application for Review dated 20 February 2017.
ISSUES FOR DETERMINATION
The legislation relevant to this matter is contained in the Social Security Act 1991 (Cth) (the “Act”).
Section 94(1) of the Act relevantly prescribes that to qualify for DSP the following requirements must be met (“Section 94 Requirements”):-
(a)Mr Nenadovic must have a physical, intellectual or psychiatric impairment;
(b)Mr Nenadovic’s impairment/s must be of 20 points or more under the Impairment Tables contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“Determination”).[10]
(c)Mr Nenadovic must have a continuing inability to work.
[10] A legislative instrument made under the Act: see s 26(1).
Pursuant to section 80 of the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”) the Secretary may cancel a person’s social security payment if that person was not qualified for the payment.
A decision made under section 80 is an “adverse determination” within the meaning of section 118(13) of the Administration Act, which provides that such a decision “takes effect on the day on which it is made”.[11]
[11] See also Freeman v Secretary, Department of Social Security [1988] FCA 294; (1988) 19 FCR 342.
Therefore, to qualify for the DSP, Mr Nenadovic must have met the Section 94 Requirements at the date of the decision to cancel the DSP, that is, on 4 October 2016 (“Qualification Date”).
It is important to keep in mind that medical evidence concerning the functional impact of Mr Nenadovic’s impairments after the Qualification Date can be considered if it “casts light on” the functional impact of the impairment/s as at the Qualification Date.[12]
DID MR NENADOVIC HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT/S DURING THE QUALIFICATION DATE: SECTION 94(1)(A)?
[12] See Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1]; and on
appeal Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97
ALD 534; and Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[29].
What is an Impairment?
The Determination defines “Impairment” to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition” and “condition” as “a medical condition”.[13]
Mr Nenadovic’s Medical Conditions
[13] Determination, s 3.
Lumbar Spinal Condition
In November 2003 Mr Nenadovic sustained an injury in the course of his employment resulting in a posterolateral tear of the annulus fibrosis of his L4/5 intervertebral disc.[14] Dr Cooke reported in 2004 and 2005 that the treatment for the condition was conservative and that Mr Nenadovic was unwilling to accept the definitive surgical treatment of a discectomy. Dr Cooke reported that the impact of the condition was unknown and would likely remain unchanged within the next 2 years unless he accepted definitive surgical treatment.[15]
[14] Exhibit 1, T Documents, T4, page 33, Letter from Dr Cooke, Orthopaedic Surgeon, dated 24 June 2004; T6, page
42, Letter from Dr Cooke dated 27 July 2004.
[15] Exhibit 1, T Documents, T7, Medical Certificate of Dr Cooke dated 8 December 2004; T9, pages 47 – 54, Report
of Dr Cooke dated 8 March 2005; T10, pages 55 – 56, Claim for Total and Permanent Disablement Benefits completed by Dr Cooke dated 9 March 2005.
In October 2005 Dr Cooke reported that:[16]
(a)he considered Mr Nenadovic was “avoiding treatment for obscure reasons”;
(b)“this man is frustrating in his skilful avoidance of his responsibilities”;
(c)Mr Nenadovic’s condition would only impact on his ability to function for less than 3 months if he undergoes the advised treatment.
[16] Exhibit 1, T Documents, T 11, pages 57 – 64, Report of Dr Cooke dated 27 October 2005.
In October 2005 Dr Konkoly, General Practitioner, reported that since April 2005 Mr Nenadovic had developed neck and shoulder pains and had some spondylosis at the C3 – 4 level.[17]
[17] Exhibit 1, T Documents, T 12, pages 65 – 72, Report of Dr Konkoly dated 28 October 2005.
In October 2006 Dr Talic, General Practitioner, reported that Mr Nenadovic was still unwilling to proceed with the recommended surgery but that there was no guarantee that the surgery would improve his situation and that the impact of this condition is likely to last for more than 24 months unless he accepts definitive surgery treatment.[18]
[18] Exhibit 1, T Documents, T 15, pages 89 – 96, Report of Dr Talic dated 10 October 2006.
In June 2016 Dr Talic reported that:[19]
(a)Mr Nenadovic had been treating his lumbar spine condition with analgesics, non-steroidal anti-inflammatory drugs (NSAIDS) and a home exercise program including hydrotherapy and swimming;
(b)as a result of his condition he has been physically incapacitated;
(c)the impact of the condition on his ability to function is expected to persist for more than 5 years;
(d)the effect of the condition on his ability to function within the next 2 years expected to fluctuate; and
(e)within the next 5 years the effect of this condition on his ability to function is expected to deteriorate.
[19] Exhibit 1, T Documents, T 20, pages 108 – 117, Report of Dr Talic dated 2 June 2016.
Conclusion on Impairment
The Secretary accepts that Mr Nenadovic suffers from impairments for the purposes of section 94(1)(a) at the Qualification Date.[20]
[20] See Exhibit 2, Secretary’s Statement of Facts and Contentions dated 8 August 2017, para 33.
Considering the medical evidence, I conclude that at the Qualification Date Mr Nenadovic suffered from a Spinal Impairment for the purposes of the Act and that the requirement in section 94(1)(a) of the Act has been met.
DOES MR NENADOVIC’S IMPAIRMENT ATTRACT AN IMPAIRMENT RATING OF 20 OR MORE POINTS: SECTION 94(1)(B)?
How are Impairment Ratings Assessed?
The Impairment Tables are used to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act.[21] They are function based[22] and designed to assign ratings to determine the level of functional impact of impairment (“Impairment Rating”) and not to assess conditions.[23]
[21] Determination, s 4(2) and 5(2)(a).
[22] Determination, s 5(2)(b) and (c).
[23] Determination, s 5(2)(d).
I can only assign an Impairment Rating to an impairment if:[24]
(a)Mr Nenadovic’s condition causing that impairment is “permanent”; and
(b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[24] Determination, see s 6(3).
Mr Nenadovic’s condition/s can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[25]
(a)The condition has been fully diagnosed by an appropriately qualified medical practitioner;
(b)the condition has been fully treated;
(c)the condition has been fully stabilised; and
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[25] Determination, see s 6(4).
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated[26] the following must be considered:[27]
(a)whether there is corroborating evidence of the condition; and
(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.
[26] For the purposes of ss 6(4)(a) and (b) of the Determination.
[27] Determination, see s 6(5).
A condition is fully stabilised[28] if:[29]
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i)significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment[30]; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[28] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[29] Determination, see s 6(6).
[30] For reasonable treatment see s 6(7) of the Determination.
Once it has been established that the applicant for DSP has a permanent impairment, it can then be determined whether the permanent impairments are likely to persist for at least 2 years. If the answer to that question is yes, an Impairment Rating using the Impairment Tables can be assigned.
Before applying the Tables I must first consider Mr Nenadovic’s medical history, in relation to the condition causing the Impairments.[31]
[31] Determination, see s 6(2).
LUMBAR SPINE IMPAIRMENT
A Job Capacity Assessment (“JCA”), conducted face-to-face with Mr Nenadovic on 24 August 2016, concluded that Mr Nenadovic’s Lumbar Spine Impairment was fully diagnosed, treated and stabilised because although surgery had originally been recommended, surgical intervention is considered invasive treatment and conservative management is appropriate.[32]
[32] Exhibit 1, T Documents, T 23, pages 128 – 129, JCA Report dated 19 September 2016.
The medical evidence demonstrates that the impact of the condition on Mr Nenadovic’s ability to function is expected to persist for more than 5 years and is likely to deteriorate.
I find that Mr Nenadovic’s Spinal Impairment was fully diagnosed, fully treated and fully stabilised as required by the Act. I note that the Secretary accepts this condition is permanent.[33]
[33] Exhibit 2, Secretary's Statement of Facts Issues and Contentions dated 8 August 2017, para 34.
Therefore, an Impairment Rating can be assigned for this condition.
Using the Impairment Tables
I have to assess the level of impact of Mr Nenadovic’s Lumbar Spine Impairment against the descriptors[34] (which describe the level of functional impact resulting from a permanent condition) contained within the relevant Tables in order to assign an impairment rating (the number in the column in a Table headed “Points” corresponding to a descriptor).[35]
[34] Determination, see ss 3 and 5(3).
[35] Determination, see ss 3 and 5(3).
Section 6 of the Impairment Tables sets out the rules governing the determination of an impairment.
The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.[36]
[36] Determination, see s 6(1).
I am obliged by the Determination to take the following information into account in applying the Tables:[37]
(a)the information provided by the health professionals specified in the relevant Table; and
(b)any additional medical or work capacity information that may be available; and
(c)any information that is required to be taken into account under the Tables, including as specified in the introduction to each Table.
[37] Determination, see s 7.
I must not take into account the following information in applying the Tables:[38]
(a)symptoms reported by Mr Nenadovic in relation to his condition where there is no corroborating evidence;
(b)unless required under the Tables, the impact of non-medical factors such as the availability of suitable work in Mr Nenadovic’s local community.
[38] Determination, see s 8.
Which Tables are appropriate are determined by:[39]
(a)identifying the loss of function; then
(b)referring to the Table related to the function affected; then
(c)identifying the correct impairment rating.
[39] Determination, see s 10(1).
Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.[40]
[40] Determination, see s 10(3).
If an impairment is considered as falling between two impairment ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[41]
[41] Determination, see s 11(1).
The descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.[42]
[42] Determination, see s 11(3).
Where a person’s diagnosed condition results in no impairment, the impairment should be assessed as having no functional impact and a zero rating must be assigned.[43]
Evidence Identifying the Loss of Function at the Qualification Date
[43] Determination, see s 11(5).
JCA Report
Mr Nenadovic reported to the JCA in September 2016 that:[44]
[44] Exhibit 1, T Documents, T 23, page 131, JCA report dated 19 September 2016.
·he has persistent lower back pain which interferes with his sleep and results in tiredness and affects his concentration during the day;
·he is able to walk to the local shop
·he can climb up and down stairs slowly
·he can drive locally, though he is able to drive reasonable distances provided he takes pain relief and stops regularly
·his lower back pain builds after sitting for 5 – 10 minutes;
·his partner does the majority of domestic tasks but he is able to prepare food for the children
·he tends to break up tasks and has a rest in between
·is able to do a quick shop
·he typically walks up to a few hundred meters at a time
·he has difficulty looking into the mirror while driving
·putting on footwear has become very hard
·he is cautious when bending and generally moves slowly
·he keeps everything close to the body when carrying objects
·he can bring down a light object off a shelf above head height but not heavy objects
·he avoids sudden head movements
·stooping and twisting such as sweeping increases pain
·he takes care opening the washing machine and removing clothes
·his mood can be affected by pain and functional restrictions
·he struggles to play with the kids
·it takes him longer to activate in the mornings due to pain and stiffness
The JCA observed that Mr Nenadovic was able to:[45]
·transfer and mobilise independently carrying a folder of documents
·bend laterally to reach ground height from a sitting position
·pick up documents on the ground and twist to place them on the seat next to him
·sit for well over 60 minutes – though he was observed to be stiff and seemed in pain when standing
·pick up documents from chair height.
[45] Exhibit 1, T Documents, T 23, page 131, JCA report dated 19 September 2016.
Evidence of Dr Talic
In June 2016 Dr Talic reported that:[46]
(a)as a result of Mr Nenadovic’s condition he has been physically incapacitated;
(b)the condition impacts on his endurance, and his ability to move, walk, bend, sit, stand, lift, carry and manipulate objects.
[46] Exhibit 1, T Documents, T 20, pages 108 – 117, report of Dr Talic dated 2 June 2016.
In May 2017 Dr Talic provided a further report regarding the impacts the Spinal Impairment was having on Mr Nenadovic’s ability to function. Dr Talic reports that Mr Nenadovic:[47]
·has great difficulty remaining in one position (sitting/standing) for longer than 10 –15 minutes
·is unable to do day-to-day activities such as putting away laundry or doing duties similar to light gardening on a repetitive basis for more than a few minutes
·his condition significantly impacts on his capacity of sustaining work-related tasks of clerical, sedentary or stationary nature for a continuous shift 2 – 3 hours due to pain/discomfort requiring frequent posture change and rest.
[47] Exhibit 2, Secretary's Statement of Facts Issues and Contentions dated 8 August 2017, Annexure B, Report of Dr
Talic dated 3 May 2017.
Dr Talic gave evidence before the Tribunal. Dr Talic told the Tribunal:
·he had begun treating Mr Nenadovic in 2005;
·he did not see Mr Nenadovic between 2008 and May 2016
·his first appointment with Mr Nenadovic since 2008 was 27 May 2016.
·when Mr Nenadovic consulted him in May 2016 he requested a report for Centrelink and told Dr Talic he wanted to go to his home country and get treatment and that he had been taking analgesics but they were not working.

Dr Talic was asked whether he agreed with the observations made by the JCA (referred to in paragraphs 43 – 44 above). Dr Talic said:
·he cannot answer whether Mr Nenadovic can sit for 60 minutes but he thinks it would be too long;
·Mr Nenadovic can sit for 10-15 minutes at consultations with him
·Mr Nenadovic can pick up objects from chair/table height
·Mr Nenadovic’s condition is chronic but he is not disabled in a wheelchair
·he cannot see why Mr Nenadovic could not walk to the shops but he has not observed it
·Mr Nenadovic has limited bending – 30-40%
·he could not comment on whether Mr Nenadovic could do housework
Dr Talic conceded that he had not “tested” Mr Nenadovic and had not performed a “full assessment” to see what he could do and said that he did not “test him properly”. When the Tribunal asked Dr Talic (twice), how he therefore formed the opinion expressed in his May 2017 report (see paragraph 46 above) given the oral evidence he had already provided, Dr Talic responded, without elaboration, “it is my opinion” and said he had sent him to a “spinal doctor”.
Mr Nenadovic saw Dr Talic in 2016 for the first time in 8 years for the purpose of having a report prepared for his DSP medical review. The evidence of Dr Talic is that he had not conducted a full assessment of Mr Nenadovic’s abilities or impairments, although he could say that:
(a)Mr Nenadovic has limited bending but can pick something up from a table or chair;
(b)Mr Nenadovic can sit for 10-15 minutes;
(c)Mr Nenadovic is not disabled in a wheelchair;
(d)He would expect Mr Nenadovic could walk to the shops provided it was not too far.
Mr Nenadovic did not dispute Dr Talic’s oral evidence.
SSCSD Evidence
The SSCSD decision records that Mr Nenadovic gave the following evidence before it:[48]
Exhibit 1, T Documents, T2, pages 2-6, Social Services & Child Support Division Decision dated 8 February 2017.
·his back condition is worse now than it was when he was granted a pension 10 years ago
·it affects his ability to sit, bend and walk and disturbs his sleep
·his partner does all the domestic chores although he will try to help when he is well enough
·sometimes he will drive the children to school
·he is no longer able to mow the lawn
·he has difficulty bending but can pick up a light item from a coffee table
·sitting and walking become uncomfortable after about 5 minutes and the pain builds until you have to change position or rest
·he is in pain from in mornings and needs an hour or two to get himself ready for the day
·he wakes tired because he has not had enough sleep
·he finds it difficult to put on his underwear
·he finds it difficult to bend over the basin and wash his face
·he can drive short distances to the local shops but will need to take painkillers if he has to drive a longer distance
·he can carry bags of groceries short distances if they are not too heavy
·he uses a walking stick when he walks a long distance and will also use the walking stick to support shopping bags
·he avoids stairs and if he has to use them will use the handrail
·he goes to the pool once a week to exercise
Mr Nenadovic did not dispute this evidence.
Mr Nenadovic’s Evidence
At the hearing Mr Nenadovic told the Tribunal that he can sit for 10 minutes and can go to the shop but that he has to take pain medication because he is in constant pain. He confirmed that he treats his Impairment with pain medication and water exercises.
Mr Nenadovic did not dispute the contents of the JCA, although he did point out that the JCA had only seen him on one occasion.
Mr Nenadovic said he has recently had more x-rays of his spine and has been seeing a psychiatrist because he is finding it very hard to deal with the pain and the stress of having his DSP cancelled.
Relevant Impairment Table and Impairment Rating
The relevant table is Table 4 of the Determination, which deals with Spinal Function, and Table 1 which deals with functions requiring physical exertion and stamina.
Impairment Rating under Table 4
The introduction to Table 4 provides that:
·Table 4 is to be used where the person has a permanent condition resulting in functional impairment when performing activities involving spinal function, that is, bending or turning the back, trunk or neck.
·The diagnosis of the condition must be made by an appropriately qualified medical practitioner.
·Self-report of symptoms alone is insufficient.
·There must be corroborating evidence of the person’s impairment.
·Examples of corroborating evidence for the purpose of this Table include, but are not limited to, the following:
oa report from the person’s treating doctor;
oa report from a medical specialist confirming diagnosis of conditions commonly associated with spinal function impairment (e.g. spinal cord injury, spinal stenosis, cervical spondylosis, lumbar radiculopathy, herniated or ruptured disc, spinal cord tumours, arthritis or osteoporosis involving the spine);
oa report from a physiotherapist or other rehabilitation practitioner confirming loss of range of movement in the spine or other effects of spinal disease or injury.
·In using Table 4, descriptors are to be met only from spinal conditions. Restrictions on overhead tasks resulting from shoulder conditions should be rated under Table 2.
The Secretary submits that an appropriate Impairment Rating for Mr Nenadovic’s Lumbar Spine Impairment is 10 points.[49]
[49] See Exhibit 2, Secretary's Statement of Facts and Contentions dated 8 August 2017, para 35.
Mr Nenadovic submitted that his Spinal Impairment is having a severe impact on activities involving spinal function and warrants an Impairment Rating of 20 points.
In order to assign an Impairment Rating of 10 points the evidence would need to show that there is a moderate functional impact on activities involving spinal function.
The Descriptors for an Impairment Rating of 10 points are:
There is a moderate functional impact on activities involving spinal function.
(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 Descriptors for an Impairment Rating of 20 points are:
There is a severe functional impact on activities involving spinal function.
(1)       The person is unable to:
(a)       perform any overhead activities; or
(b)       turn their head, or bend their neck, without moving their trunk; or
(c)       bend forward to pick up a light object from a desk or table; or
(d)       remain seated for at least 10 minutes.
There is no evidence that Mr Nenadovic meets the criteria for a severe impairment rating. The evidence demonstrates that Mr Nenadovic can sit and drive in a car for at least 30 minutes but has some difficulty moving his head to look in all directions. Therefore, based on the evidence available I find that an Impairment Rating of 10 points is appropriate for Mr Nenadovic’s Lumbar Spine Impairment under Table 4.
Basic Rights Queensland, who provided written submissions on behalf of Mr Nenadovic, submitted that based on Dr Talic’s report it appears that Mr Nenadovic falls short of 20 points. However, Basic Rights Queensland submits that because of the chronic pain Mr Nenadovic experiences, Table 1 may need to be considered if there is an effect on his physical exertion and stamina. The difficulty I have with this submission is that the corroborating medical evidence available does not refer to Mr Nenadovic experiencing shortness of breath, fatigue or cardiac pain, as referred to in the descriptors in Table 1. The evidence may be that because of the pain he is limited in terms of how long he can perform certain activities but that is a different issue to whether someone is short of breath or fatigued or has cardiac pain because of performing those activities. As a result, I do not consider that there is corroborating evidence to satisfy the assignment of an impairment rating under Table 1 in addition to Table 4.
CHRONIC PAIN
There is no doubt on the medical evidence that Mr Nenadovic is in pain.
Section 6(9) of the Determination relevantly provides that as there is no Table dealing specifically with pain and that when assessing pain the following must be considered:
(a) acute pain is a symptom which may result in short term loss of functional capacity in more than one area of the body; and
(b) chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected; and
(c) whether the condition causing pain has been fully diagnosed, fully treated and fully stabilised for the purposes of subsections 6(5) and (6).
I have already found that the impairment causing the chronic pain, the Spinal Impairment, has been fully diagnosed, fully treated and fully stabilised, and I have assigned an Impairment Rating to that impairment. I do not consider that the evidence justifies any increase in that Impairment Rating.
WERE MR NENADOVIC’S IMPAIRMENTS OF 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES: S 94(1)(B)?
To qualify for DSP a minimum of 20 points is required pursuant to section 94(1)(b) of the Act.
I have found that the total Impairment Rating for Mr Nenadovic’s Impairment was 10 points. Therefore, Mr Nenadovic did not satisfy section 94(1)(b) of the Act at the Qualification Date.
DID MR NENADOVIC HAVE A CONTINUING INABILITY TO WORK: S 94(1)(C)(I)?
I have concluded that Mr Nenadovic’s Impairment did not attract an impairment rating of 20 points or more under the Impairment Tables in the Qualification Period, therefore it is unnecessary for me to consider whether Mr Nenadovic had a “continuing inability to work” (as defined in s 94(2) of the Act) for the purposes of section 94(1)(c) of the Act at that time.
CONCLUSION
Mr Nenadovic’s claim fails. His impairment did not attract an impairment rating of 20 points or more under the Impairment Tables in the Qualification Period and as a result he did not qualify for DSP at the Qualification Date.
The decision under review is affirmed.

I certify that the preceding 73 (seventy - three) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

.......................[Sgd].................................................
Associate
Dated: 18 September 2017

Date of hearing: 7 September 2017

Applicant: By Phone

Solicitors for the Respondent: Department of Human Services

[2017] AATA 1508

18 September 2017

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Date of hearing:	7 September 2017
Applicant:	By Phone
Solicitors for the Respondent:	Department of Human Services