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

This matter concerned an appeal by Mr Nenadovic against a decision affirming a determination that he did not qualify for a Disability Support Pension. The core of the dispute revolved around whether Mr Nenadovic's impairments attracted an impairment rating of 20 points or more under the relevant Impairment Tables, as required by section 94(1)(b) of the Social Security Act 1991 (Cth). The decision was made by the Administrative Appeals Tribunal, and the appeal was heard by the Federal Circuit Court of Australia.

The legal issues before the court were whether Mr Nenadovic's condition was "permanent" for the purposes of the Social Security (Impairment Assessment) Determination 2015, and if so, whether the resulting impairment was more likely than not to persist for more than two years. The court was required to consider the definition of "permanent" under section 6(4) of the Determination, which necessitates that a condition be fully diagnosed, fully treated, fully stabilised, and likely to persist for more than two years. Furthermore, the court had to assess whether the available medical evidence supported an impairment rating of 20 points or more under the Impairment Tables, which are designed to assess functional impact rather than specific medical conditions.

The court considered the evidence provided by Mr Nenadovic's treating doctor, Dr Talic, and observations made by a Judge's Associate. While Dr Talic reported that Mr Nenadovic was physically incapacitated and that his condition impacted his endurance and ability to move, bend, sit, stand, lift, carry, and manipulate objects, his evidence was found to be inconsistent. Dr Talic conceded he had not performed a "full assessment" or "tested" Mr Nenadovic properly, and his opinions regarding Mr Nenadovic's functional capacity, particularly his ability to sit for extended periods, were questioned in light of his oral evidence. The court noted that the Impairment Tables are function-based and require a rigorous assessment of functional limitations. Ultimately, the court concluded that the evidence did not establish that Mr Nenadovic's impairment attracted the required 20-point rating.