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

Ognjenovic and Secretary, Department of Social Services (Social services second review) [2018] AATA 3098 (29 August 2018)
Division:GENERAL DIVISION
File Number: 2016/6822
Re:Draga Ognjenovic
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:29 August 2018
Place:Sydney

The Tribunal affirms the reviewable decision.
...............[sgd].........................................................
Mrs J C Kelly, Senior Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – cancellation of disability support pension – portability of disability support pension – whether applicant qualified for disability support pension – major depressive disorder and post-traumatic stress disorder – type 2 diabetes mellitus – spine condition – upper limb condition – lower limb condition – hypothyroidism – umbilical hernia – stress urine incontinence – vision loss – hearing loss – asthma – whether applicant’s conditions rated at 20 points or more under the Impairment Tables – whether applicant had a continuing inability to work – decision 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
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
29 August 2018

The question the Tribunal has to determine is whether the decision to cancel Mrs Ognjenovic’s Disability Support Pension (DSP) on 19 July 2016 (the cancellation decision) was correct. That requires the Tribunal to determine whether she qualified for the DSP on that date.
The Secretary, Department of Social Services (the Secretary) made the cancellation decision after undertaking a medical review to determine whether Mrs Ognjenovic qualified for portability of her DSP. On 29 January 2016 she had advised the Secretary that she wanted to go overseas indefinitely and wanted to continue receiving her payments. She had been receiving DSP since 9 March 2005.
The following reviews have been held at the request of Mrs Ognjenovic: a review of the cancellation decision by an Authorised Review Officer (ARO) and a review of the ARO’s decision by the Social Services and Child Support Division of this Tribunal (AAT1). Mrs Ognjenovic has been unsuccessful on each review.
The decision this Tribunal is reviewing is the decision made on 23 November 2016 by AAT1.
THE LEGISLATION
The legislative scheme that the Tribunal has to apply to decide whether Mrs Ognjenovic qualified for DSP on 19 July 2016 is set out in the Social Security Act 1991 (Cth), the Social Security (Administration) Act 1999 (Cth) and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) that came into effect in 2012.
The legislation requires that the Tribunal must be satisfied that on 19 July 2016 Mrs Ognjenovic:
(a)had a physical, intellectual or psychiatric impairment; and
(b)that impairment is of 20 points or more under the Impairment Tables; and
(c)had a continuing “inability to work” as defined.
As set out in paragraph 6(4) of the Impairment Tables, a condition is permanent if it:
·has been fully diagnosed by an appropriately qualified medical practitioner; and
·has been fully treated; and
·has been fully stabilised; and
·is more likely than not to persist for more than two years.
The Impairment Tables describe functional activities, abilities, symptoms and limitations and are designed to assign ratings to determine the level of functional impact of impairment.
The introduction to each relevant table requires that “self-reporting of symptoms alone is insufficient” and “there must be corroborating evidence of the person’s impairment”.
THE ISSUES THAT HAVE TO BE DECIDED
The Secretary accepts that Mrs Ognjenovic had impairments on 19 July 2016 but does not accept that the impairments rated 20 points or more under the Impairment Tables.
The Secretary does not accept that Mr Ognjenovic had a continuing inability to work on 19 July 2016. If the Tribunal finds that Mrs Ognjenovic does qualify for DSP, the Secretary argued that she does not satisfy the criteria for portability.
Therefore, the Tribunal has to consider:
(a)whether Mrs Ognjenovic’s impairments rated 20 points or more under the Impairment Tables on 19 July 2016, and
(b)if so, did she have a continuing inability to work on 19 July 2016; and
(c)if so, does she qualify for portability of DSP, which requires, amongst other criteria, that she suffer from a severe impairment, that is, an impairment which rated as 20 points or more under a single Impairment Table.
THE INFORMATION THE TRIBUNAL HAS CONSIDERED
The hearing was held by telephone with the assistance of an interpreter. When the Tribunal rang Mrs Ognjenovic, she said that she was incapable of proceeding without the assistance of her husband and son who were at the chemist. The Tribunal adjourned for an hour. Her husband, Mr Ognjenovic, answered the telephone and said that his wife was lying down having taken a tablet. He said that Mrs Ognjenovic was 30% more psychologically unwell and was attending both a psychiatrist and a psychologist. He also said that he has a hearing problem, and asked if their son, Aleksander, would assist. Thereafter Aleksander spoke to the Tribunal. He also emphasised how Mrs Ognjenovic had deteriorated, was taking more medications and seeing more doctors, and the care he provided for her. The Tribunal explained that it had to decide whether Mrs Ognjenovic qualified for DSP on 19 July 2016.
The Tribunal has taken into account the 477 pages of documents the Secretary provided to the Tribunal pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, the additional medical reports provided by Mrs Ognjenovic, the additional Job Capacity Assessment (JCA) dated 8 June 2017 provided by the Secretary, and the oral evidence given by Mrs Ognjenovic’s husband and son.
In summary, the documentary material dated from 17 April 2003 and comprised many medical reports and certificates, investigation reports such as Magnetic Resonance Imaging Reports (MRIs), ultra sounds and X-rays, JCAs, and various pieces of correspondence such as medical referrals and letters from the Secretary.
The Tribunal has also taken into account the submissions made on behalf of Mrs Ognjenovic and the written and oral submissions made on behalf of the Secretary.
THE TRIBUNAL’S CONSIDERATION
Mrs Ognjenovic was born in 1954. She came to Australia in March 2003 and qualified for DSP in 2005. She has never worked outside the home. She has been receiving Newstart Allowance since the DSP was cancelled. She lives with her husband and adult son.
The Impairment Tables that applied when Mrs Ognjenovic was granted DSP in 2005 are different from the Impairment Tables that the Tribunal has to consider, which came into effect in 2012.
The two Work Capacity reports prepared around the time Mrs Ognjenovic was granted DSP in 2005 made different findings. The first report dated 1 April 2005 found that Mrs Ognjenovic qualified for DSP because of her diabetes. The second dated 19 April 2005 found that she qualified for DSP because of both her left knee and diabetes conditions.
Because the Tribunal has to decide whether Mrs Ognjenovic qualified for the DSP on 19 July 2016, medical reports before and after that date are useful to the extent that they provide information relevant to the assessment of the impairments from which she suffered, her degree of impairment, and whether she had a continuing inability to work on 19 July 2016.
A JCA was carried out on 9 May 2016 and a report dated 20 June 2016 was prepared (the June 2016 JCA). The assessor was a clinical psychologist. An accredited exercise physiologist was a contributing assessor. A further JCA was submitted on 8 June 2017. The assessor was a registered psychologist and the contributing assessor was a rehabilitation counsellor.
Mrs Ognjenovic suffers from various impairments. On 14 March 2016, Dr Tomic, Clinical Psychologist, signed a medical report, and Dr Todorovic, General Practitioner, counter-signed it on 16 March 2016. The report was for the review of portability of Mrs Ognjenovic’s DSP. They confirmed that Mrs Ognjenovic suffered from:
·Chronic major depressive disorder superimposed on chronic post-traumatic stress disorder (PTSD);
·Type 2 diabetes;
·Fracture of the right wrist;
·Hypothyroidism;
·Soft tissue injuries to the neck, right shoulder and right knee;
·An umbilical hernia.
The Tribunal infers that Dr Tomic was only addressing the first condition, given his expertise, and that Dr Todorovic addressed the other physical conditions.
It is relevant to refer to the disabilities, illnesses or injures listed in the medical details provided in a form submitted with Mrs Ognjenovic’s original application for DSP in 2003. The form was intended to be completed by the applicant, however, taking into account the writing and the content of the information provided, the Tribunal finds that Dr Mahfouz, general practitioner, completed the form. He wrote:
·Right leg, back injured 28 March 2003;
·Right hand / arm / shoulder;
·Head / neck;
·Depression 28 March 2003;
·Right hearing loss.
Various descriptors of the conditions from which Mrs Ognjenovic suffers appear in the evidence, including conditions not mentioned in the March 2016 medical report but which appear in the evidence after that date, including chronic pain in various parts of the body and stress urine incontinence. The Tribunal has addressed each condition in relation to the relevant Impairment Table.
Major depressive disorder, chronic, superimposed on pre-existing post-traumatic stress disorder (PTSD)
In Australia, Mrs Ognjenovic was first diagnosed with PTSD in March 2004 when she consulted a psychiatrist, Dr Kecmanovic. Her Medicare Patient History Report shows that she attended seven sessions with him, the last one on 14 December 2006. On 30 March 2004, the psychiatrist wrote that he had prescribed medication for Mrs Ognjenovic. Her Prescribing History Report shows that the first time she was supplied medication for depression or anxiety was 25 March 2005 when she was supplied with 50 Diazepam tablets. Mrs Ognjenovic’s Prescribing History from 1 January 2004 to 9 November 2017 shows no regular pattern of prescription or supply of medications for her mental health condition thereafter. It is irregular.
There is no other record of Mrs Ognjenovic attending a psychiatrist until 2017, although Dr Todorovic completed referrals to psychiatrists on 17 January 2013 and 10 April 2014.
Mrs Ognjenovic told the JCA assessor on 9 May 2016 that she was taking medication but had not attended a psychiatrist or psychologist for the last four years. In fact, she had consulted and been treated by Dr Tomic, clinical psychologist, in 2014, 2015 and 2016.
On 10 May 2014, Dr Tomic diagnosed that Mrs Ognjenovic was suffering from major depressive disorder, chronic, superimposed on pre-existing post-traumatic stress disorder, chronic. His report was dated 21 May 2014. He proposed stress-focused cognitive therapy in combination with self-suggestion programmes in self-induced relaxation.
In his March 2016 report Dr Tomic stated that the date of onset of that condition was 1996 and that it has a severe adverse impact on Mrs Ognjenovic’s “everyday functioning: concentration, communication, energy level, self-esteem, thinking process, motivation, occupational social, recreational and sexual functioning”.
He listed three courses of psychological treatment beginning 10 May 2014, 4 March 2015 and 7 March 2016. The 2014 and 2015 courses were for six months and included stress focused cognitive therapy and anti-depressive agents. They ended on 10 December 2014 and 30 September 2015 respectively.
In Dr Tomic’s opinion, Mrs Ognjenovic’s condition would remain unchanged or deteriorate within the next two years and deteriorate within the next five years.
Dr Tomic listed the causes of the condition and the following impacts of the condition on her ability to function:
·Unable to live independently and look after herself;
·Unable to communicate with people appropriately;
·Unable to follow simple instructions;
·Unable to adapt to life in community and make decisions.
Mrs Ognjenovic’s Medicare Patient History Report from 1 January 2004 to 9 November 2017 shows that she saw Dr Tomic on the following dates in 2016: 7, 14 and 29 March, 11 and 27 April, 12 May, 2, 14 and 29 June, and 20 July.
Her Prescribing History shows that she was prescribed and supplied the following medications before and around 19 July 2016:
·9 March 2016 prescribed 50 Mirtazapine;[1] supplied 13 March 2016;
·1 June 2016 prescribed 50 Diazepam;[2] supplied 22 August 2016;
·16 June 2016 prescribed 50 Diazepam; supplied 22 June 2016;
·9 August 2016 prescribed 50 Diazepam; supplied 12 August 2016.
[1] An antidepressant: Relieves anxiety: >
Mrs Ognjenovic saw Dr Todorovic on 9 March and 1 June 2016. The Tribunal finds that he issued the prescriptions on those dates. There is no record of her seeing any doctor on 16 June or 9 August 2016. It is therefore unclear who issued the latter two prescriptions. Before 19 July 2016, Mrs Ognjenovic had been supplied with Mirtazapine on 13 March 2016 and with Diazepam on 22 June 2016. In 2015 she was supplied with 50 Diazepam on 14 May, 15 September and 25 November.
The JCA submitted on 20 June 2016 considered that this condition was not fully diagnosed, treated, or stabilised:
due to lack of evidence of a recent diagnosis, and lack of optimal treatment by Psychiatrist and/or Clinical Psychologist. Psychiatric review and treatment, psychologist therapy and support are likely to result in improved management of client symptomatology and in turn improved functioning.
In his 20 July 2016 report, Dr Tomic stated that he had closed the case because Mrs Ognjenovic had spent the maximum under Medicare for the year, although she sought further psychological support. He set out:
Progress to date: in accordance with my pessimism expressed in my previous correspondence, her improvement is mild and fluctuating.
Dr Tomic provided further reports dated 12 September 2016, 13 March 2017 and 4 September 2017. In the September 2016 report, his opinion was that Mrs Ognjenovic is:
Mentally unable to accept responsibility for any kind of formal employment, including voluntary work, for at least five years ahead.
In his 13 March 2017 report, Dr Tomic’s opinion was that Mrs Ognjenovic’s condition had been fully diagnosed, treated and stabilised. He provided an assessment of her level of total mental impairment according generally to the six criteria in Table 5 of the Impairment Tables but the assessment was not done according to the Impairment Tables.
The JCA submitted on 8 June 2017 found that the condition was not fully treated and stabilised.
In his 4 September 2017 report, Dr Tomic wrote that after the eight sessions of treatment, Mrs Ognjenovic had a break of two months and went to Bosnia:
In her fantasy, she constantly lives in Bosnia and dreams about returning there permanently. Where there on holidays, she felt much better. However, after returning to Australia, she learnt that meanwhile her application for retrieving previously cancelled DSP was rejected, which abruptly worsened her mood and sleep.
Dr Kulic, psychiatrist, provided a brief report dated 6 November 2017. He diagnosed major depressive disorder and post-traumatic stress disorder, noted that her current medication was Mirtazepine, and stated that she was “Unfit for work or any training for the next 3 months (most likely indefinitely)”. In a medical certificate dated 4 November 2017, he specified that the major depressive disorder was the primary condition and the secondary/related condition was PTSD, and listed symptoms.
The Tribunal concludes that as of 19 July 2016 Mrs Ognjenovic had been diagnosed with major depressive disorder and post-traumatic stress disorder. It does not accept that the condition was fully treated and stabilised for the following reasons.
Mrs Ognjenovic consulted a psychiatrist in Australia for about three years in 2004 to 2006, who had diagnosed the same condition. She did not consult another psychiatrist until the end of 2017 despite referrals being provided in 2013 and 2014. In 2005, she was supplied with Diazepam four times. During the period 1 January 2006 to 31 December 2011, she was supplied with Diazepam on 18 January 2006 and 10 March 2008, and with Dothiepin, an antidepressant,[3] on 18 January 2006. The supplies of Diazepam increased from 14 August 2012, although they were irregular.
[3] >
She was treated by Dr Tomic, consultant psychologist, in 2014, 2015 and 2016. The Tribunal accepts that she was taking medication from at least March 2016 until 19 July 2016. Dr Tomic’s opinion on 20 July 2016 was that there had been mild and fluctuating improvement in her condition as a result of the treatment she was receiving. The Tribunal has taken into account the evidence about her condition after that date, but considers the contemporaneous evidence the most reliable. Such improvement is not consistent with the condition being fully treated in accordance with clause 6(5) of Part 1 of the Impairment Tables. The condition was not permanent and cannot be rated according to the Impairment Tables.
Type 2 diabetes mellitus
In the March 2016 medical report, Dr Todorovic provided the following information about Mrs Ognjenovic’s type 2 diabetes condition. It was diagnosed by an endocrinologist in 2006 and had been treated with various medications since then. His opinion was that she might need to start insulin injections in the next five years. The impacts on her ability to function were decreased endurance and difficulties with strenuous activities. Dr Todorovic expected the condition to fluctuate over the next two years and deteriorate over the next five years.
Other medical evidence shows that diabetes was diagnosed in July 2004. In his report dated 11 January 2013, Dr Borkman, endocrinologist, referred Mrs Ognjenovic for dietary advice and diabetes education, and noted that she had refused insulin therapy. The Tribunal infers that he had recommended that treatment. There is no more recent evidence from an endocrinologist. Dr Todorovic reported on 7 March 2013 that Mrs Ognjenovic’s diabetes was treated with medication and noted that insulin therapy was planned and that she had refused to start that therapy. He noted that the condition caused difficulty with strenuous activities and decreased endurance.
The Tribunal finds that Mrs Ognjenovic has refused to have insulin treatment but may have to have it in the next two years. It finds that the condition has not been fully treated as required by clause 6(5) of Part 1 the Impairment Tables. It is therefore not permanent and a rating cannot be attributed under the Impairment Tables.
Spine
Mrs Ognjenovic has reported lower back pain to doctors since late 2003. Several doctors’ reports about, and imaging investigations of, her lumber spine were before the Tribunal. The earliest imaging investigations of the lumbar spine were undertaken in 2003.
The most recent imaging report is a CT of the lumbar spine dated 15 October 2015. It reported a mild disc bulge at L2/3 and a moderate bulge at L4/5 associated with facet joint ligamentous hypertrophy causing moderate canal stenosis.
A CT of the cervical spine was also undertaken on 15 October 2015. The following are findings that were other than normal:
·C3/4 disc is narrowed. There is no disc bulge or disc protrusion. Bony degenerative changes are casing mild narrowing of the right foramen at this level.
·The C5/6 is narrowed and degenerative with a disc bulge but this is not compressing the thecal sac.
·The C6/7 displays a minimal disc bulge but this is not compressing the thecal sac and the foramina are of reasonable size.

In his report dated 22 August 2013, Dr Todorovic listed lower back injury/chronic lower back pain and neck injury – chronic pain, as conditions that were generally well managed and caused minimal or limited impact on ability to function.
In the March 2016 medical report, Dr Todorovic listed soft tissue injury to the neck which occurred on 22 July 2010 as a medical condition that was generally well managed and that caused minimal or limited impact on ability to function. He did not mention the lumbar spine/lower back in that report.
The June 2016 JCA found that Mrs Ognjenovic’s impairment arising from osteoarthritis warranted 5 points under Table 4 – Spinal Health.
In his 27 September 2016 medical report, Dr Todorovic diagnosed chronic pain syndrome in relation to the neck and noted that treatment included Panadol osteo tablets and physiotherapy. On 8 November 2016 he referred Mrs Ognjenovic for physiotherapy. Later evidence shows that she was involved in an accident on 29 April 2017, suffered soft tissue injuries and was referred to an Orthopaedic surgeon in respect of pain in her neck, whole back, right wrist, both shoulders, both knees.
The Tribunal accepts that at 19 July 2016, Mrs Ognjenovic had been diagnosed with lower back pain and neck pain. The Tribunal accepts that the condition was fully treated and stabilised. It agrees with the JCA’s assessment that the condition warranted 5 points under Table 4.
Upper limbs – fractured right distal radius / right shoulder
In the 16 March 2016 report, Dr Todorovic listed fractured right distal radius and soft tissue injury to the right shoulder that occurred on 22 July 2010 as medical conditions that were generally well managed and caused minimal or limited impact on ability to function.
In the August 2013 report, Dr Todorovic listed right shoulder injury/chronic pain as a condition was the generally well managed and caused minimal or limited impact on ability to function.
An X-ray report of the right wrist dated 2 August 2010 referred to a fracture through the distal radius with both longitudinal and transverse components, lying in a “virtually anatomical position. There was incomplete bony union at the fracture site”.
An X-ray report of the right forearm, wrist and hand dated 28 November 2014 stated: “There is no acute fracture. There is normal alignment”.
An unidentified type of investigation of the right forearm and right shoulder was carried out on 31 March 2015. “No convincing evidence of fracture was seen” in respect of the right forearm.
In relation to the right shoulder it reported: “No fracture or dislocation was seen. Mild impingement type morphology was noted”.
An ultrasound of both shoulders was undertaken on 15 October 2015. The following findings were made in respect of both shoulders:
The supraspinatus tendon is thickened and tendinotic. There is no tear. The other rotator cuff tendons define normally. The biceps tendon defines normally and lies in normal positon. There is thickening of the subacromial bursa and bursal bunching on abduction.
There was “no joint effusion” in the right shoulder.
The Tribunal accepts that there was a fracture of the right distal radius that has healed. It notes that Mrs Ognjenovic reported to the JCA in May 2016 that she experienced ongoing pain in the right wrist with decreased movement and that pain radiated to her right shoulder. She also reported that she used Voltaren cream and had been referred for MRI to investigate and for treatment planning.
The Tribunal found later reports and medical certificates confusing. In his report dated 14 March 2017, Dr Todorovic referred to chronic pain in the right wrist. He did not mention either shoulder. In medical certificates dated 1 December 2016, 11 January 2017 and 22 March 2017, he referred to chronic pain syndrome, including in the left shoulder and right arm. In a medical certificate dated 9 May 2017 he referred to soft tissue injuries in both shoulders.
Given the pre-July 2016 investigations, the Tribunal accepts that the fracture to the right distal radius and soft tissue injury to the right shoulder had been diagnosed as at 19 July 2016. The fractured right distal radius has been fully treated and stabilised. The evidence about treatment of the right shoulder is minimal. However accepting that it has been fully treated and stabilised, the Tribunal finds that it had a minimal or limited impact on Mrs Ognjenovic’s ability to function as at 19 July 2016.
The evidence does not support a rating under the Impairment Tables greater than 0 under Table 2 – Upper Limb Function.
Lower limbs
In his treating doctor report dated March 2003, Dr Mahfouz referred to a post-traumatic right knee pain suffered in March 2003 when Mrs Ognjenovic hit her knee on a metal door in the airport. An orthopaedic surgeon diagnosed anterior cruciate ligament (ACL) rupture from an MRI scan dated 29 October 2003, stated that he could not offer surgical treatment and suggested a specialist knee clinic. A document on letterhead of Dr Mahfouz’s practice refers to ruptured anterior collateral (sic) ligament, 2003, resulting in ongoing pain in the knee, for which an orthopaedic surgeon had been consulted but no surgery was planned.
There were various medical reports thereafter about the right knee. An MRI on 13 May 2011 identified a meniscal tear and old complete tear of the ACL.
In his August 2013 report, Dr Todorovic stated that right knee injury was generally well managed and caused minimal or limited impact on ability to function and that Mrs Ognjenovic had been advised to have an arthroscopy because there was a lateral meniscus tear.
In the 16 March 2016 report, Dr Todorovic listed soft tissue injury to right knee as a condition that was generally well managed and caused minimal or limited impact on ability to function. He wrote that the injury was suffered on 22 July 2010.
Mrs Ognjenovic told the JCA assessor in May 2016 that she could:
·Walk across the road to the shopping centre for light shopping;
·Rise up out of a chair without assistance; and
·Sometimes travel on public transport without assistance.
The Tribunal notes that she was able to travel overseas from 14 May 2017 to 2 August 2017. Her son told the Tribunal that he travelled with her, and that she did not need a wheelchair at the airport, but used a walking stick.
The Tribunal accepts that the lower limb condition has been diagnosed. It does not accept that it has been fully treated and stabilised. There is no evidence that Mrs Ognjenovic proceeded to have an arthroscopy as Dr Todorovic had recommended in 2013. It is not permanent.
Hypothyroidism
In the 16 March 2016 report, Dr Todorovic wrote that Mrs Ognjenovic’s hypothyroidism was treated with thyroxin tablets and was generally well managed and causing nil or limited impact on ability to function. In the August 2013 report, he included this condition as other information he wished to provide.
The June 2016 JCA assessed hypothyroidism as fully diagnosed, treated and stabilised with an impairment rating of nil points under Table 1 because the condition was well controlled and/or had no functional impact on work-related or daily activities.
The Tribunal finds that the contemporaneous evidence supports the JCA assessment and finds that the condition of hypothyroidism has no functional impact on activities requiring physical exertion or stamina and therefore rates nil points under Table 1.
Umbilical hernia
In the 16 March 2016, Dr Todorovic noted that Mrs Ognjenovic had surgery to the umbilical hernia in 2006 and stated that this condition was generally well managed and caused minimal or limited impact on ability to function. In his August 2013 report, Dr Todorovic included umbilical hernia repair in 2005 in response to the question: “Is there any other information that you would like to provide”.
The Tribunal notes that a 2005 medical report states that the hernia repair had been carried out in that year.
The June 2016 JCA assessed the hernia as fully diagnosed, treated and stabilised with an impairment rating of nil points under Table 10.
The Tribunal accepts that assessment is correct.
Stress urine incontinence
In the August 2013 report, Dr Todorovic listed urinary stress incontinence as a condition that was generally well managed and caused minimal or limited impact on ability to function. The condition was not mentioned in the March 2016 report.
Mrs Ognjenovic reported to the JCA in May 2016 that she experienced incontinence as a result of her diabetes and had to wear a nappy at night. The JCA also described it as stress incontinence for which Mrs Ognjenovic had been prescribed medication “ceasing independently” because of side effects.
The Tribunal accepts that the condition has been diagnosed, but there is insufficient corroborative evidence to decide that it has been fully treated and stabilised, particularly as Mrs Ognjenovic reported ceasing medication of her own accord.
Vision loss
In his 7 March 2013 medical report, Dr Todorovic stated that “decreased vision” was a medical condition that was generally well managed and caused minimal or limited impact on Mrs Ognjenovic’s ability to function. He did not mention vision loss in the March 2016 report. He stated that Mrs Ognjenovic had a cataract in her left eye in his report of 14 March 2017.
The JCA dated 16 May 2013 referred to “decreased vision” and that Mrs Ognjenovic reported that she required treatment to her left eye but did not have the funds to pay. The JCA also “noted that the treating GP ‘cannot comment’ regarding this medical condition as he has no reports regarding this and would require specialist referral to be made.
The Tribunal is not satisfied that the condition had been diagnosed as of 19 July 2016.
Hearing loss
On 13 July 2011, Dr Katzen reported that an audiogram had revealed a “totally dead left ear and normal hearing in the right ear”. His report was prepared in relation to a Compulsory Third Party accident matter. He was not a treating doctor. He did not recommend treatment. The Tribunal infers that he is an Ear Nose and Throat (ENT) specialist. There is no other evidence from an audiologist or ENT specialist.
In the August 2013 report, Dr Todorovic included “Decreased hearing L ear” as a condition that was generally well managed and caused minimal or limited impact on ability to function.
The condition is not mentioned in the 16 March 2016 report by Dr Todorovic. The June 2016 JCA report states that the assessor did not need to use increased volume or provide special hearing assistance during an interview with Mrs Ognjenovic. Mrs Ognjenovic was able to conduct a telephone conversation with the Tribunal without apparent hearing difficulty.
There has been no referral to a specialist to examine Mrs Ognjenovic and provide advice about management or treatment. The Tribunal accepts that the condition has been diagnosed, but does not accept that it has been fully treated and stabilised.
Asthma
In his August 2013 report, Dr Todorovic included “Asthma – using Seretide accuhaler 250/50” in response to the question: “Is there any other information that you would like to provide?” The condition was not mentioned in the March 2016 report. It is not apparent to the Tribunal that Mrs Ognjenovic has been supplied with any prescription medicine for this between 2009 and 2017. While Mrs Ognjenovic has been diagnosed with the condition in the past, the Tribunal is not satisfied that she was suffering from the condition in July 2016.
Other conditions
Mrs Ognjenovic claimed to have a tumour and blood pressure in a document dated 10 March 2016 submitted in support of the review of portability of her DSP. The medical evidence does not refer to either a tumour or blood pressure condition. There is insufficient information before the Tribunal on which to make relevant findings on either of those conditions.
DECISION
For the above reasons, the Tribunal finds that Mrs Ognjenovic did not have impairments of 20 points or more under the Impairment Tables on 19 July 2016. She did not qualify for DSP on that day. The decision to cancel her DSP was correct.
It is therefore not necessary to consider whether Mrs Ognjenovic had a continuing inability to work or whether she qualified for portability of DSP.
The Tribunal affirms the reviewable decision.

I certify that the preceding 98 (ninety-eight) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

...............[sgd].........................................................
Associate
Dated: 29 August 2018

Date of hearing: 19 January 2018

Advocate for the Applicant: Mr M Ognjenovic & Mr A Ognjenovic

Solicitors for the Respondent: Mr J Larcombe, Department of Human Services

[2018] AATA 3098

29 August 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Natural Justice

Procedural Fairness

Standing

Statutory Construction

Date of hearing:	19 January 2018
Advocate for the Applicant:	Mr M Ognjenovic & Mr A Ognjenovic
Solicitors for the Respondent:	Mr J Larcombe, Department of Human Services