Nikola Mirilovic and Secretary, Department of Social Services

Case

[2014] AATA 428

1 July 2014


[2014] AATA 428

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2013/6959

Re

Nikola Mirilovic

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal Dr Ion Alexander, Member
Date 1 July 2014
Place Sydney

The reviewable decision is set aside and substituted with a decision that Mr Mirilovic satisfies the requirements of section 94(1) of the Act and was qualified to receive Disability Support Pension at the date of application.

..............[sgd]..........................................................

Dr Ion Alexander, Member

CATCHWORDS

SOCIAL SECURITY – pensions – disability support pension – whether the applicant’s conditions were fully diagnosed, treated and stabilised – whether the applicant’s impairments were rated 20 or more points under the Impairment Tables – whether the applicant had a continuing inability to work – decision set aside

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth)

SECONDARY MATERIALS

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

REASONS FOR DECISION

Dr Ion Alexander, Member

1 July 2014

BACKGROUND

  1. On 2 January 2013 Mr Mirilovic lodged a claim for Disability Support Pension (DSP) on the basis that he suffered various medical conditions that were having an impact on his ability to function. The conditions included depression, PTSD, osteoarthritis of the back and gout.

  2. Mr Mirilovic’s claim was rejected by Centrelink, both initially and on internal review, and subsequently the Social Security Appeals Tribunal (SSAT) on the basis that he did not satisfy the requirements of s 94 of the Social Security Act 1991 (the Act), in particular s 94(1)(b) in that he did not have an impairment rating of at least 20 points under the Impairment Tables.

  3. In this proceeding Mr Mirilovic seeks review of the decision of the SSAT.

  4. At the hearing Mr Mirilovic was self-represented and gave oral evidence with the assistance of a Serbian language interpreter.

    ISSUES

  5. In order to qualify for DSP Mr Mirilovic had to satisfy the requirements of s 94 of the Act as at the date of the claim or within 13 weeks of lodging the claim (the claim period) in accordance with the requirements of the Social Security (Administration) Act 1999, that is, between 2 January 2013 and 3 April 2013.

  6. It is agreed that during the claim period Mr Mirilovic satisfied s 94(1)(a) of the Act.

  7. The respondent submits that, during the claim period, Mr Mirilovic’s impairments did not attract a combined rating of 20 points under the Impairment Tables and that he also did not have a continuing inability to work so that he did not satisfy s 94(1)(b) and s 94(1)(c) of the Act.

  8. Therefore the issues to be decided are: whether during the claim period Mr Mirilovic had a combined rating of 20 points or more under the Impairment Tables and, if so, whether he had a continuing inability to work.

    IMPAIRMENT RATING

  9. On 5 July 2012, some six months prior to the claim that is the subject of this application, Mr Mirilovic attended a face to face Job Capacity Assessment (JCA) conducted by a psychologist with contribution from an occupational therapist.

  10. In a report dated 9 July 2012, the assessor listed several medical conditions suffered by Mr Mirilovic including depression, osteoarthritis, hypertension, high cholesterol and gout.

  11. Mr Mirilovic told the assessor that he had experienced his depression symptoms since stopping work eight months before and that he had been referred to a psychiatrist but had not yet been able to make an appointment.

  12. Mr Mirilovic also told the assessor that he had been experiencing pain in his lower back and hips for the past seven to eight months and that his symptoms had been increasing.

  13. The assessor noted that both depression and posttraumatic stress disorder (PTSD) had been indicated as diagnoses but concluded that these conditions were not fully diagnosed, treated or stabilised on the basis that the diagnoses were not supported by a psychiatrist or clinical psychologist.

  14. The assessor also concluded that the osteoarthritis and gout were fully diagnosed but not fully treated and stabilised.

  15. The hypertension and hypercholesterolaemia were found to be fully diagnosed, treated and stabilised but had no impact on Mr Mirilovic’s functional capacity and, therefore had an impairment rating of zero.

  16. The assessor concluded that Mr Mirilovic’s work capacity was temporarily reduced to 0-7 hours per week until January 2013 during which time he would follow up with referral to both a psychiatrist and a rheumatologist and commence any recommended treatment.

  17. On 11 January 2013 Mr Mirilovic attended his second face to face JCA conducted by a psychologist with contribution by a registered nurse.

  18. Curiously, the report dated 11 January 2013 appears to be almost an exact copy of the report done six months earlier and not only contains errors but is also inconsistent with other evidence before the Tribunal.

  19. In my mind this raises serious questions about the fairness and reliability of this report and therefore I am unable to give it much weight.

  20. On 4 April 2013 Mr Mirilovic attended his third face to face JCA which was conducted by a registered nurse with contribution from an occupational therapist and a psychologist.

  21. For reasons that are unclear the report was not submitted until 29 May 2013, almost two months later.

  22. The assessor listed the same medical conditions as in the previous reports but changed “osteoarthritis” to “musculo-skeletal disorder” and add several other conditions including epilepsy.

  23. In respect of the condition of depression the assessor noted Mr Mirilovic commenced psychiatric consultations in March 2013 when he was prescribed Diazepam and advised to discontinue Zoloft. On the basis of this information the assessor concluded that Mr Mirilovic’s condition was not fully treated or stabilised although it was accepted it was fully diagnosed.

  24. In respect of the musculo-skeletal condition the assessor referred to the specialist reports of Dr Habib and commented that Mr Mirilovic “may benefit from recommended secondary rehabilitation, a referral to pain management and orthopaedic specialist opinion” then went on to conclude that the condition is considered to be “permanent” but “not … fully treated or stabilised” on the basis that Mr Mirilovic was actively pursuing treatment options.

  25. In respect of epilepsy the assessor concluded that the condition was not fully treated or stabilised because of the “recentness of [the] diagnosis”.

    MR MIRILOVIC’S EVIDENCE

  26. During Mr Mirilovic’s oral evidence it became clear that he had difficulty in remembering relevant details about his various medical conditions and was unable to provide a reliable history of his symptoms and treatment.

  27. What was clear, however, is that the conditions with the most functional impact on Mr Mirilovic are his spine condition and his mental health condition.

  28. Mr Mirilovic said that his anxiety and depression had gradually worsened over the last three years and that his chronic pain had been a major factor.

  29. He was originally seen by a psychiatrist, Dr Sokolovic, but that after five or six consultations the treatment was discontinued. He was then referred to another psychiatrist, Dr Kecmanovic, sometime in 2012 but he was uncertain about the date.

  30. With regard to his back pain, Mr Mirilovic explained that in 2011 he fell over at work while carrying a loaded rubbish bin and injured his lower back and left shoulder.

  31. Mr Mirilovic described symptoms of pain, numbness and pins and needles and currently complains of lower back pain radiating down his legs, pain in his upper back and neck and pain in his left arm.

  32. Mr Mirilovic explained that he has tried hydrotherapy with little benefit and has tried a suggested home exercise program which he found difficult and did not help with his pain.

  33. Mr Mirilovic claimed that he can walk about 30 to 40 metres on the flat. He has more difficulty with steps because of pain and needs to support his weight with his walking stick and the hand rail.

  34. Mr Mirilovic said that he can sit for 15 to 30 minutes but then gets pain in his neck and back and needs to change his posture. Also, for the last two to three years, he has been unable to turn his head from side to side without turning his upper body.

  35. In response to questions from the respondent, Mr Mirilovic explained that he does not do much around the house and depends on his wife who also assists him with his personal care. He can’t put on his shoes and has difficulty with dressing, particularly with taking off his trousers.

  36. Mr Mirilovic said that he owns a car but had not driven at all during 2013 and that his son and daughter use the car to drive him to medical appointments.

  37. Mr Mirilovic agreed that in October 2012 he had travelled to Serbia on his own to see his mother and that he stayed in Serbia for about eight weeks. He explained that he had significant difficulty in negotiating the airports but was able to manage with the assistance of a wheelchair and was able to cope in Serbia with the assistance of friends.

    MEDICAL EVIDENCE

  38. Three Centrelink Medical Reports have been provided by Dr Tomasevic who was Mr Mirilovic’s general practitioner (GP) during the claim period.

  39. In his first report dated 14 June 2012 Dr Tomasevic lists “depression” and “osteoarthritis & pains in [the] lower back & both hips” as medical conditions which have a significant impact on Mr Mirilovic’s ability to function.

  40. Dr Tomasevic notes that the depression was chronic and that Mr Mirilovic was receiving psychiatric therapy from Dr Kecmanovic. He described the impact on Mr Mirilovic’s ability to function as “reduced cognitive function, reduced ability to interact or communicate with other people”.

  41. With respect to the back and hip symptoms, Dr Tomasevic describes reduced mobility and endurance and inability “to lift heavy objects”. Panadol Osteo for symptomatic relief was listed as current treatment, and physiotherapy and orthopaedic surgical review were indicated to be future/planned treatment.

  42. Dr Tomasevic lists hypertension, PTSD, dyslipidaemia and gout as conditions generally well managed that cause minimal or limited impact and noted “reduced function” but provided no specific details.

  43. In a second report, dated 27 August 2012, Dr Tomasevic provides similar information but notes that Mr Mirilovic is receiving psychiatric therapy by Dr Sokolovic and treatment with sertraline (Zoloft), an antidepressant.

  44. In his third report, dated 27 February 2013, during the claim period, Dr Tomasevic lists “chronic pains in back & both lower limbs” and “anxiety & depression” as medical conditions which have most impact on Mr Mirilovic and notes that the diagnosis of Mr Mirilovic’s back condition is supported by Dr Habib, orthopaedic surgeon.

  45. With respect to the functional impact of the back and hip pain the only additional information in this report is that Mr Mirilovic is unable to sit and stand for long periods.

  46. With respect to the treatment of anxiety and depression, Dr Tomasevic notes that Mr Mirilovic is on medication and undertakes psychiatric therapy with Dr Kecmanovic.

  47. Dr Tomasevic lists epilepsy, gout, hypertension, cataract and glaucoma as medical conditions that are generally well managed and cause minimal or limited impact but provides no additional information.

  48. The documentary evidence includes four reports by Dr Habib dated 15 March 2012, 31 July 2012, 17 June 2013 and 1 April 2014.

  49. At the hearing it was agreed that the report dated 15 March 2012 was in fact written during the claim period, on 15 March 2013.

  50. In the report dated 31 July 2012 Dr Habib notes that Mr Mirilovic developed lower back pain that radiated down the back of both thighs following a fall at work while carrying a rubbish bin.

  51. Dr Habib noted that a CT scan report dated 17 July 2012 showed “multi level spondylytic changes, worse at L4/5 causing moderate spinal canal narrowing and … disc degenerative changes with facet joints arthrosis compromising the spinal canal”.

  52. Dr Habib recommended a short course of physiotherapy followed by hydrotherapy and a strengthening program but noted that Mr Mirilovic’s back condition was chronic and would gradually deteriorate.

  53. In the report of 15 March 2013, during the claim period, Dr Habib notes that he had examined Mr Mirilovic on three occasions, 30 July 2012, 19 February 2013 and 11 March 2013, and concluded that he “suffers from a number of fairly disabling chronic conditions severely restricting / impairing his ability for any physical activities” and that he was “permanently unfit for work”.

  54. Dr Habib referred to the findings of several radiological examinations of the lumbar spine, cervical spine and both shoulders. The CT scans of the cervical (4 March 2013) and lumbar spine (17 July 2012) demonstrated marked degenerative changes and an ultrasound of the shoulders revealed significant abnormalities of the rotator cuff tendons.

  55. Dr Habib noted that Mr Mirilovic had reported difficulties with sitting for longer than 20-25 minutes, standing for longer than 15-20 minutes and walking for longer than 30 minutes at a normal slow pace. Mr Mirilovic also complained that the low back and bilateral thigh pain increased substantially after 30 minutes or so of walking.

  56. On examination on 19 February 2013 Dr Habib noted asymmetrical neck restriction between 30-50%, shoulder movement restriction and moderate restriction of movements of the back and neurological examination of the lower limbs showed some non-dermatomal sensory alterations but restricted leg raising.

  57. Current treatment was noted as regular Panadol Osteo and NSAIDs with no recommendation of any other treatment.

  58. In his report dated 17 June 2013 Dr Habib noted that Mr Mirilovic complained of ongoing neck and back pain not relieved with physiotherapy. He also noted that the neck and back examination findings had not changed despite the lapse of time since the incident in October 2011.

  59. Dr Habid noted that Mr Mirilovic was on Epilim and recommended a trial of Lyrica as well as a rehabilitation/spine care program at the local hospital.

  60. In his report of 1 April 2014 Dr Habid provides additional information in respect of his earlier consultations as well as a more current assessment of Mr Mirilovic’s functional impairment.

  61. Dr Habid notes that on 17 July 2012 his clinical findings were referrable to aggravation of the severe degenerative spinal changes verified by CT scan and that neurological examination was suggestive of S1 nerve root involvement with absent ankle jerks bilaterally and positive sciatic stretch test bilaterally.

  62. He states that on 19 February 2013 he reviewed Mr Mirilovic at the request of his GP for ongoing severe low back pain symptoms and neck pain radiating to the trapezii and the upper limbs.

  63. Dr Habib recounts that at that time Mr Mirilovic complained of an increase in symptoms and “difficulty maintaining a sitting or standing posture for longer than 10 minutes, overhead activities or maintaining a neck flexed / extended posture for longer than 1-2 minutes … [and] occipital headaches.”

  64. On examination on 19 February 2013, Mr Mirilovic “again demonstrated moderate / severe restriction of the lumbar spine. Non dermatomal sensory alteration in the lower limbs and absent ankle jerks as before.”

  65. Dr Habib concluded that Mr Mirilovic suffers from “severe degenerative spinal changes and discopathies in the cervical and lumbar regions” and notes he has “clinical and radiologically verified moderate / severe functional restrictions and resultant disabilities.”

  66. Dr Habib expresses the opinion that Mr Mirilovic has undergone “appropriate management of his spinal conditions, including pain relief modalities, physiotherapy and hydrotherapy over an extended period” and that “[h]is spinal condition is not amenable to steroid injections”.

  67. Dr Habib also states that Mr Mirilovic’s spinal condition is “progressive in nature and will deteriorate” and notes that he is unable to perform any overhead activities, has difficulty turning his head or bend his neck down, has difficulty bending forward to retrieve objects from work tables or maintain a sitting posture for 10 minutes without experiencing considerable exacerbation of the back and lower limb symptoms.

  68. There are three letters from Dr Rail, neurologist, in evidence. In the first letter, dated 16 October 2012, Dr Rail notes that Mr Mirilovic suffers from recurring headaches, insomnia and has a chronic depressive illness which is treated with Zoloft.

  69. Dr Rail finds no abnormal signs on neurological examination and notes that a cerebral CT scan showed “nothing categoric”.

  70. In the second letter, dated 15 January 2013, Dr Rail notes that on returning from overseas on Christmas Eve Mr Mirilovic had a fit at the airport and that he had a previous seizure in 2012.

  71. Dr Rail diagnosed epilepsy and started treatment with anticonvulsant medication, Epilim. Also Mr Mirilovic was warned against swimming and driving.

  72. In the third letter, 4 February 2013, Dr Rail notes that Mr Mirilovic’s EEG was normal but recommends continuing treatment with Epilim and was again warned against swimming.

  73. In a letter dated 18 March 2013 Dr Kecmanovic, psychiatrist, noted that Mr Mirilovic complained of nervousness, irritability, depression, poor sleep, poor concentration and forgetfulness and that he had been on Zoloft since August 2012.

  74. Dr Kecmanovic diagnosed “Dysthymia and Epilepsia” and noted that all antidepressants increase “convulsive readiness” so he stopped the Zoloft and prescribed diazepam (Valium) instead and also recommended continuing with the Epilim.

  75. In a brief letter dated 30 January 2014 Dr Kecmanovic notes that he had seen Mr Mirilovic on three occasions since March 2013 and that there has been no change in his clinical situation and that he requires further psychiatric treatment.

  76. In a letter dated 3 April 2013 Mr Colovic, physiotherapist, reported that Mr Mirilovic had commenced treatment for his neck, shoulder and lower back pain. He described a treatment plan which included strengthening exercises to carry out at home.

  77. I note that Mr Colovic confirmed that Mr Mirilovic requires assistance for personal care from his wife for showering, washing hair and dressing and undressing and was unfit to drive.

  78. In a subsequent letter, dated 29 April 2013, Mr Colovic reported that Mr Mirilovic had attended five EPC treatments, but he continued to complain of neck pain radiating to the shoulder. Mr Mirilovic is reported to have said that he had experienced some improvement in his lower back pain.

  79. Included in the evidence are two letters dated 13 December 2013 from Dr Protulipac, clinical and forensic psychologist, in which he confirms that Mr Mirilovic is now under his care.

  80. Dr Protulipac states that his initial assessment revealed that Mr Mirilovic “suffers from chronic pain, epilepsy, osteoarthritis, a range of organic problems, chronic symptoms of trauma, elevated anxiety, depression, insomnia and a range of psychosomatic complaints.”

  81. Dr Protulipac expresses the opinion that these conditions prevent Mr Mirilovic from “actively seeking employment, participating in the related activities, attending interviews or working” because of “psychomotor retardation, low motivation, poor concentration, impairment to short-term memory, hyperventilation, apprehensiveness and other related symptoms.”

  82. In his second letter Dr Protulipac notes that Mr Mirilovic underwent psychiatric treatment with Dr Sokolovic and Dr Kecmanovic with little success and had been referred to him for further psychological treatment which was now ongoing.

  83. Dr Protulipac notes the diagnosis as PTSD, chronic type, and Major Depressive Disorder, recurrent, moderate, without psychotic features.

  84. Dr Protulipac expresses the opinion that Mr Mirilovic’s psychological symptoms are such that he is “unfit for employment, job searching, retraining or any type of intellectual activities” and that he “will never be fit to return to the workforce or perform any type of paid employment”.

  1. I note a report by Dr Gotis-Graham, rheumatologist, dated 28 January 2014, which does not add a great deal, but does confirm that Mr Mirilovic has had degenerative musculoskeletal problems for at least three years with significant impact on his ability to function.

    CONSIDERATION

  2. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination2011 (the Determination) requires that an impairment rating can only be assigned to an impairment if the condition causing that impairment is permanent.

  3. The Determination also provides that a condition is permanent if it has been fully diagnosed, fully treated, fully stabilised and is more likely than not to persist for more than two years.

  4. The evidence before the Tribunal establishes that during the claim period Mr Mirilovic suffered from several medical conditions, some of which were permanent within the meaning of the Act and which may have had an impact on his ability to function.

  5. The medical evidence, however, indicates most of the conditions were considered to be generally well managed and had limited or minimal functional impact and, therefore, could not be assigned a rating under the Impairment Tables.

  6. The two conditions that were fully diagnosed during the claim period that had a significant impact on Mr Mirilovic’s ability to function were his degenerative spinal condition and his mental health condition (Major Depression and PTSD).

  7. The respondent contends that, during the claim period, these two conditions were not fully treated and stabilised and relies on the JCA reports of 11 January 2013 and 29 May 2013.

  8. I have already noted above that I have significant reservations about the fairness and reliability of the report dated 11 January 2013 and will not consider it further.

  9. In the report dated 29 May 2013 the assessor concludes that Mr Mirilovic’s musculo-skeletal condition is “permanent” but not “fully treated or stabilised” on the basis that he is actively pursuing treatment options.

  10. I have some difficulty with this conclusion as it seems somewhat inconsistent and in my view suggests a failure to understand the nature of Mr Mirilovic’s condition which the evidence clearly describes as a chronic degenerative condition that will inevitably get worse over time and that may require additional treatments as the condition progresses or changes.

  11. The question I must consider is whether there is sufficient evidence before the Tribunal to establish that Mr Mirilovic’s degenerative spinal condition was fully diagnosed, treated and stabilised during the claim period.

  12. Section 5 of the Determination states that:

    In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:

    (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

  13. Section 6(a) of the Determination states that a condition is fully stabilised if “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”.

  14. After having reviewed all the evidence before the Tribunal I am satisfied that, during the claim period, Mr Mirilovic’s degenerative spinal condition was fully diagnosed, treated and stabilised.

  15. In reaching my conclusion I rely on the evidence of Dr Habib which provides a persuasive description of a chronic degenerative disease of the spine that has been present for several years and despite apparently reasonable treatment demonstrates ongoing deterioration with persistent symptoms. He also describes severe functional impact on activities involving spinal function.

  16. The various treatments that have been suggested at times beyond the claim period appear to be directed at symptom relief and there is no persuasive evidence that any of the suggested treatments were likely to result in significant functional improvement to a level enabling Mr Mirilovic to undertake work in the next two years.

  17. That Dr Habib is a registered general surgeon and not an orthopaedic surgeon, in my view, does not justify giving his opinion little or no weight.

  18. There is no evidence to suggest that Mr Mirilovic required any surgical intervention by an orthopaedic surgeon at the times he was seen by Dr Habib, and I can only assume that Dr Tomasevic would not have referred Mr Mirilovic to Dr Habib for assessment if he had any concerns about Dr Habib’s expertise.

  19. Furthermore, I am satisfied that the content of Dr Habib’s reports, which are in evidence, demonstrate that he did have the relevant expertise to both evaluate and treat Mr Mirilovic’s degenerative spinal condition.

  20. It follows that the next issue is to determine Mr Mirilovic’s impairment rating under Table 4 – Spinal Function.

  21. In his oral evidence Mr Mirilovic described functional impairment consistent with a rating of 20 points under Impairment Table 4 and this is confirmed by Dr Habib’s assessment in his report of 1 April 2014 which I assume refers to Mr Mirilovic’s impairment as at that date.

  22. However, in the 1 April 2014 report Dr Habib also noted that on 19 February 2013, during the claim period, he reviewed Mr Mirilovic at the request of his family doctor and at this consultation Mr Mirilovic complained of an increase in symptoms and difficulty maintaining a sitting or standing posture for longer than 10 minutes, overhead activities or maintaining a neck flexed/extended posture for longer than one to two minutes.

  23. Also Mr Mirilovic said in his evidence that he had been unable to turn his head from side to side without moving his upper body.

  24. Relevantly, in his report of 15 March 2013 Dr Habib noted that Mr Mirilovic’s neck was restricted asymmetrically between 30-50% and Mr Mirilovic experienced loss of nearly 50% range of movement of his back.

  25. Although there is some variation in the precise details of the description of impairment I am satisfied that the evidence before the Tribunal is consistent with a conclusion that during the claim period Mr Mirilovic’s rating under Impairment Table 4 was 20 points. This means that his impairment as a result of his degenerative spinal condition was a severe impairment in accordance with s 94(3B) of the Act.

  26. In the JCA report of 29 May 2013 the assessor concluded that Mr Mirilovic’s mental health condition was not fully treated or stabilised on the basis that he had not commenced “psychiatric management” until March 2013.

  27. This is not consistent with other evidence before the Tribunal, particularly Dr Tomasevic’s Centrelink Medical Report of 27 August 2012 which confirms that Mr Mirilovic was receiving psychiatric treatment from Dr Sokolovic and was being treated with antidepressant medication since at least August 2012.

  28. The reports of Dr Kecmanovic and Dr Protulipac confirm that Mr Mirilovic has had ongoing psychiatric treatment since August 2012 and although his treatment has been complicated by the fact he was unable to continue on antidepressant medication because of his epilepsy there is nothing in the evidence to suggest that Mr Mirilovic’s treatment has not been reasonable or that further reasonable treatment was likely to result in significant functional improvement that would enable Mr Mirilovic to undertake work in the two years after the claim period.

  29. Therefore, I am satisfied Mr Mirilovic’s mental health condition was fully treated and stabilised during the claim period.

  30. Furthermore, I am satisfied that there is sufficient evidence to support a conclusion that during the claim period Mr Mirilovic’s condition had at least moderate functional impact on his mental health function with a rating of 10 points under Impairment Table 5.

  31. It follows that during the claim period Mr Mirilovic did have an impairment rating of more than 20 points and did satisfy s 94(1)(b) of the Act.

  32. I note that since I have determined that Mr Mirilovic has a severe impairment, as defined by the Act, he is not required to have actively participated in a program of support for a determination to be made that he has a continuing inability to work. I am satisfied that the reports of Dr Habib and Dr Protulipac provide sufficient evidence for me to conclude that during the claim period Mr Mirilovic had a continuing inability to work as required by s 94(1)(c) of the Act.

    DECISION

  33. For the reasons set out above, I am satisfied that, during the claim period, Mr Mirilovic had a rating of 30 points under the Impairment Tables and had a continuing inability to work which means he satisfied the requirements of s 94(1) of the Act and was therefore qualified for DSP.

  34. The reviewable decision is set aside and substituted with a decision that Mr Mirilovic satisfies the requirements of section 94(1) of the Act and was qualified to receive DSP at the date of application.

I certify that the preceding 118 (one hundred and eighteen) paragraphs are a true copy of the reasons for the decision herein of Dr Ion Alexander, Member

................[sgd]........................................................

Associate

Dated 1 July 2014

Date of hearing 6 June 2014
Applicant In person
Solicitor for the Respondent Mr G Lozynsky, Department of Human Services
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