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

[2016] AATA 838

Ozanic and Secretary, Department of Social Services (Social services second review) [2016] AATA 838 (25 October 2016)

Division	GENERAL DIVISION
File Number	2016/0142
Re	Rudolf Ozanic
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Mr W. Evans, Member
Date	25 October 2016
Place	Perth

The decision under review is affirmed

.........[Sgd]...............................................................

Mr W. Evans, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether Applicant’s impairments attract 20 points under the Impairment Tables – whether Applicant has severe impairment – continuing inability to work – decision under review affirmed.

LEGISLATION

Social Security Act 1991 – s 94 – s 94(1)(a) – s 94(1)(b)

Social Security (Administration) Act 1999 – s 80(1)

SECONDARY MATERIALS

Social Security (Table for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 – Table 1 – Table 5 – Table 10

REASONS FOR DECISION

Mr W. Evans, Member

25 October 2016

INTRODUCTION

1. On 10 December 2015, the Social Services & Child Support Division of the Administrative Appeals Tribunal (the AAT1) affirmed the decision of the Department of Human Services (the Department) dated 31 August 2015, cancelling the Applicant’s Disability Support Pension (DSP).

2. On 11 January 2015, the Applicant submitted an Application for Second Review to the General Division of the Administrative Appeals Tribunal (the Tribunal) (T1, p1).

3. The hearing was held on 14 September 2016.  Mr Ozanic was self-represented, assisted by an interpreter provided by the AAT. All of Mr Ozanic’s evidence was conducted in the Serbian language through the interpreter. Mr Ozanic failed to bring the T documents previously supplied to him so a copy was provided and its use as a reference document explained to him.

4. The Tribunal accepted into evidence as Exhibit R1, the T Documents T1 – T35, pages 1 to 125. The Respondent’s Statement of Facts, Issues and Contentions (SOFIC) was received into evidence as Exhibit R2.

5. The Tribunal accepted into evidence as Exhibit A1 a bundle of clinical notes comprising 18 pages, primarily being blood test results and a letter dated 18 April 2016 from Dr Golic, the Applicant’s psychiatrist. The Tribunal accepted into evidence as Exhibit A2 to A8, a bundle of documents comprising:

   ·A Medical Certificate from Dr Ponos (GP) stating the Applicant was unfit for work 16 August – 16 November 2016 (A2);

   ·a letter from Royal Perth Hospital dated 27 March 2016 (A3);

   ·Four Clinipath Pathology Notes (A4 – A7); and

   ·A Royal Perth Hospital Medical Imaging Appointment D0869509 (A8).

   BACKGROUND

6. Mr Ozanic was born in Bosnia on 25 July 1956 (now aged 60) and arrived in Australia in 1998 as a refugee (T3, p10). On arrival he undertook English language training and obtained a job as a part-time cleaner.  He retired from working in 2001 allegedly primarily due to Post Traumatic Stress Disorder (PTSD) resulting from his purported experiences as a non-combatant during the Bosnian War in 1992.

7. Mr Ozanic resides in State Housing supported accommodation in Subiaco, Western Australia.  He lives alone. He has been married twice.

8. The Applicant contended that he suffered from the following recognised ailments:

   ·PTSD with depression and anxiety;

   ·Fibromyalgia; and

   ·Hepatitis B.

9. Mr Ozanic was granted DSP on 22 May 2001.

10. Mr Ozanic has made several annual trips to Bosnia and Serbia in recent years to utilise the alleged healing waters of the SPA’s located there “as they made him feel more relaxed”. During those visits his holiday period was limited to one month before restrictions would be applied to his receiving DSP whilst overseas.

11. Mr Ozanic contacted the Department on 6 January 2014, enquiring about indefinite portability of his DSP (T34, p107), assumed to be to allow him more time to spend overseas in receipt of DSP.  The Department’s Customer Enquiry Record states:

    Cus(tomer) enquired about portability of payments IN CASE of cus(tomer) being granted max DSP Pen(sion) after NWC assessment.

12. The Department advised Mr Ozanic that he would be required to undergo a medical review and a Job Capacity Assessment (JCA), the outcomes of which might affect his continuing ability to receive DSP. He was also advised that new Impairment Tables were introduced on 1 January 2012 that might affect his eligibility for DSP. Mr Ozanic elected to continue.

13. On 15 June 2015, a JCA was undertaken by a registered psychologist and a physiotherapist, assisted by a Serbian interpreter.  At T24, p79, in the JCA report describing Mr Ozanic’s PTSD condition as being fully diagnosed, fully treated and fully stabilised, it states:

    The Medical Report (MR) by Doctor (Dr) Mirjana Ponos, General Practitioner (GP) states that the client has been diagnosed with Post Traumatic Stress Disorder in 1998 by Dr Zlatan Golic, Psychiatrist

14. This Tribunal was not provided a copy of Dr Golic’s initial diagnosis, made in 1998.

15. In a letter dated 2 November 2011 (T5, p36), Dr Paul Zilko diagnosed Mr Ozanic as suffering from “moderate tenderness of fibromyalgia”.

16. Mr Ozanic advised the JCA that he contracted Hepatitis B when he was a child of about eight years of age. He advised the JCA and the AAT1 that the condition causes him no discomfort or problems.

17. The AAT1 (T3, p12), noted that:

    [48]…Mr Ozanic’s GP, Dr Ponos, listed Hepatitis B, alongside hyperlipidaemia, fatty liver and haemorrhoids as conditions generally well-managed, with minimal or limited impact on function.

    [49]The Tribunal considers these problems have no significant impact.  They cannot be considered for points from the Impairment Tables.

18. On 31 August 2015, the Department advised Mr Ozanic (T26, p89) as follows:

    The medical review has determined that your medical conditions (sic) of Post Traumatic Stress disorder (sic) is considered to be a permanent condition but there is considered to be minimal or no impact on ability to function as a result of this condition.   It is rated 0 points under the Impairment Tables.

    The medical review has determined that your medical condition of Fibromyalgia is considered to be a permanent condition and it is rated 5 points under Table 1 of the Impairment Tables due to mild impact on functions requiring physical exertion and stamina.

    The medical review has determined that your medical condition Hepatitis B is considered to be a permanent condition but there is considered to be minimal or no impact on ability to function as a result of this condition.  It is rated 0 points under the Impairment Tables.

    Your other medical conditions have all been assessed as having minimal impact on function and have been rated 0 points under the Impairment Tables.

    As the medical review has resulted in the cancellation of your Disability Support Pension, you are not eligible for indefinite portability of Disability Support Pension under Section 1218AAA of the Social Security Act.

19. On 31 August 2015, (T25, p87) the Department advised Mr Ozanic:

    After considering your circumstances, we have made a decision that you are not eligible for Disability Support Pension. To be eligible for Disability Support Pension, you need to have an impairment rating of 20 points or more using the impairment tables in the Social Security Act 1991.

    These tables are used to assess how much your ability to work is affected by any permanent medical condition that is fully diagnosed, treated and stabilised.  You have been assessed as having an impairment rating of less than 20 points.  In making this decision we took into account all available medical evidence and other relevant information about your circumstances.

    ISSUES

20. The Respondent contended that the issue before the Tribunal is whether, as at 31 August 2015, the relevant date of DSP cancellation, Mr Ozanic satisfied section 94 of the Social Security Act 1991 (the Act); in particular:

    a.    whether the Mr Ozanic’s impairments are permanent, and if so;

    b.    whether the impairments attract an impairment rating of at least 20 points, and if so;

    c.     whether Mr Ozanic has a continuing ability to work.

21. The Respondent also emphasised to Mr Ozanic that this hearing was to determine his eligibility for DSP as at the date of cancellation; it was not a hearing about portability of his DSP to accommodate his desire to travel overseas.

22. The Tribunal agrees that these are the main issues before it.

    IMPAIRMENT TABLES

23. The Impairment Tables contain rules (the Rules) for their use when deciding if a person is qualified for DSP. The Impairment Tables are function-based rather than diagnosis-based. They describe functional activities, abilities, symptoms and limitations and are designed to determine the level of functional impact of impairments.

24. An impairment rating can only be assigned if the condition causing the impairment is permanent (that is, fully diagnosed, treated and stabilised and likely to persist for more than two years), and the impairment rating resulting from that condition is also more likely than not to persist for more than two years (ss 6(3) – 6(4) of the Rules).

25. The following must be considered in determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated:

    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 two years (s 6(5) of the Rules).

26. A condition is fully stabilised if:

    (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 two years, or

    (b)The person has not undertaken reasonable treatment for the condition either:

    (i)significant functional improvement to a level enabling the person to undertake work in the next two years is not expected to result, even if the person undertakes reasonable treatment, or

    (ii)there is medical or other compelling reason for the person not to undertake reasonable treatment (ss 6(6) and 6(7) of the Rules).

27. The existence of a diagnosed condition will not necessarily result in a rating under the Impairment Tables. If the Impairment has no functional impact, then no rating can be assigned (s 6(8) of the Rules). 

28. In Mr Ozanic’s case, the following Tables apply:

    ·Table 1 -  Functions requiring Physical Exertion and Stamina (refer to Annexure A);

    ·Table 5 - Mental Health Function (refer to Annexure B); and

    ·Table 10 – Digestive and Reproductive Functions (refer to Annexure C).

29. The JCA conducted on 15 June 2015 found the following in relation to the relevant Tables:

    ·Mr Ozanic’s fibromyalgia was awarded an impairment rating of 5 points under Table 1 (1)(a)(ii) (T24, p83).

    ·Mr Ozanic’s PTSD was awarded an impairment rating of 0 points under Table 5 (1)(a)(b)(c) and (f) (T24, p82).

    ·Hepatitis B, liver disorder and circulatory system conditions were awarded an impairment rating of 0 points under Table 5 and Table 10 (T24, p83).

    ·The Applicant was assessed as having a baseline work capacity at 15-22 hours per week with a capacity for work increasing to 23-29 hours per week within 2 years with intervention (T24, p84-85).

30. At paragraph 37 of the Respondent’s SOFIC, the Respondent accepted that as at 31 August 2015, the relevant date of cancellation of Mr Ozanic’s DSP, Mr Ozanic suffered from PTSD with depression and anxiety, fibromyalgia, Hepatitis B, liver disorder and haemorrhoids, thus satisfying s 94(1)(a) of the Act which states:

    94          Qualification for disability support pension

    (1)       A person is qualified for disability support pension if:

    (a)the person has a physical, intellectual or psychiatric impairment;

31. However, the Respondent contends that the Applicant, having been awarded 0 points for PTSD and only 5 points for Fibromyalgia from the Impairment Tables, failed to meet the 20 points for DSP required of s 94(1)(b) of the Act which states that qualification for DSP demands:

    (b)     the person’s impairment is of 20 points or more under the Impairment Tables;

32. Section 80(1) of the Social Security (Administration Act) 1999 provides that :

    (1)         If the Secretary is satisfied that a social security payment is being, or has been, paid to a person:

    (a)       who is not, or was not, qualified for the payment; or

    (b)       to whom the payment is not, or was not, payable;

    the Secretary is to determine that the payment is to be cancelled or suspended.

33. The Respondent contends that as the Applicant failed to meet the required 20 points, cancellation of his DSP is justified.

34. On 2 September 2015, the Applicant sought a review of the Department’s decision to cancel his DSP (T3, p6).

35. On 18 September 2015, an Authorised Review Officer (ARO), after examining the Applicant’s case, also determined (T27, p94) that the Applicant’s total impairment rating was 5 points and as the Applicant did not have an impairment rating of 20 points or more, he no longer qualified for the DSP. The ARO also noted that the Applicant had a work capacity of 15-22 hours per week due to the Applicant’s difficulty with concentration, chronic pain and physical limitations and that his work capacity is likely to improve to 23-29 hours per week within two years.

    MEDICAL EVIDENCE

36. In determining Mr Ozanic’s medical condition, the following doctor’s reports and Applicant’s statements were taken into consideration by the Tribunal:

    ·Medical Report – Disability Support Pension Review for Portability: Section A signed by Mr Ozanic dated 14 May 2015, Section B dated 8 May 2015 signed by Dr Ponos. (T21, p58). Mr Ozanic stated that the point system is not accurate enough to determine his fitness for work or that he is healthy enough to cancel his DSP.  He alleges that he suffers severe depression, fibromyalgia and other issues;

    ·JCA report dated 18 August 2015 (T24, p79). PTSD fully diagnosed, treated and stabilised.  Applicant involved in three motor vehicle accidents between 2000 and 2013 resulting in soft-tissue injuries resolved over time. Fibromyalgia accepted as fully diagnosed, treated and stabilised. Minimal discomfort. Treated with Panadol.  Hepatitis B since 8 years of age. Customer reported the condition is well managed and has minimal impact on function. The condition was assessed as fully diagnosed, treated and stabilised. Fatty Liver identified with no past, current or future treatment planned. Assessed as fully diagnosed, treated and stabilised.  Haemorrhoids identified. Mr Ozanic stated that no treatment was being undertaken nor was there any functional impact. The condition was assessed as being fully diagnosed, treated and stabilised;

    ·Work capacity form dated 14 May 2015 signed by Mr Ozanic (T22, p60).  States that the Applicant suffers from Depression, Fibromyalgia, Fats (sic) liver, Hyperiplemia (sic) Hemoroids (sic) and Hepatitis B. No other significant statements recorded;

    ·Letter from Dr Michael McComish (consultant physician) dated 15 April 2015 (T20, p55). Applicant, despite muscle pain is able to exercise without limitation, swimming regularly and playing basketball once a week. Dr McComish concluded that the Applicant’s health was good;

    ·Letters from Dr Merrilee Needham (consultant neurologist) dated 18 December 2013 (T9, p42), 23 September 2014 (T14. P48 and T15, p49), 18 February 2015 (T17, p51 & T18, p52), 28 October 2015 (T32, p101).  Applicant’s myalgia’s did not start until 2009 and are not applicable to his DSP. Not able to come up with any unifying diagnosis to explain his myalgia’s;

    ·Letter from Dr Greta Pranjic (psychologist) dated 19 November 2013 (T7, p39).  Applicant attended two sessions for PTSD in 2013 with all subsequent bookings cancelled by Applicant;

    ·Letters form Dr Paul Zilco (rheumatologist) dated 2 November 2011 (T5, p36) and 13 September 2013 (T6, p38). Applicant complaining of muscle soreness.  Blood pressure was normal, thyroid function normal as were creatinine and liver function tests.  Referred to Dr Needham;

    ·Letters from Dr K C Ng (rheumatologist) 12 December 2013 (T8, p40) and 14 March 2014 (T12, p46). Applicant suffering aches and pains purportedly associated with a traffic accident on 17 May 2013. Treatment associated with a Compensation Claim. Applicant continuing to work as a window cleaner earning about $300 a month. On examination the Applicant was assessed as not suffering from depression. Muscle tone and power were normal as was his gait and the rest of the examination was unremarkable. On 14 March 2014, the Applicant was recommended to use a TENS muscle-stimulating machine to assist with recovery;

    ·Letter from Dr Lorenzo Tarqinio (gastroenterologist) dated 11 February 2014 (T10, p44). Liver screen unremarkable.  An absence of significant fibrosis. Evidence of fatty liver and recommendation that Applicant lose 3-4 kg in weight;

    ·Letter from Dr Lazar Jancic (chiropractor) dated 21 February 2014 (T11, p45).  Applicant complaining of musculoskeletal discomfort following his motor vehicle accident on 17 May 2013. Chiropractic treatment did not produce any noticeable improvement over six weeks and was discontinued by Dr Lazar;

    ·Letters from Dr Zlatan Golic (consultant psychiatrist) dated 29 October 2014 (T16, p50) & 24 March 2015 (T19, p53). Applicant’s PTSD in partial remission. Overall, on 29 October 2014, the doctor did not notice any change in his psychiatric symptoms. On 24 March 2014, the Applicant reported that he was suffering depression, brought on by major financial worries exacerbated by a lack of family support due to all relatives living overseas. His desire to travel overseas to visit family is constrained by Centrelink rules. Without the regular financial input from DSP he would not have the financial means to survive; and

    ·Letter from Ms Angela Cole (ARO) dated 18 September 2015 (T27, p91). During discussion, Applicant advised Ms Cole that the JCA report is correct. The Applicant was formally informed that as he did not have an impairment rating of 20 points, he was no longer qualified for Disability Support Pension.

    DISCUSSION

    Respondent’s Contentions

37. In opening, the Respondent stated that:

    Mr Ozanic is subject to the old rules in determining his fitness to work. That is, when Mr Ozanic was granted DSP in May 2001, a person was considered to have a continuing inability to work if they could not work for at least 30 hours per week. That 30 hour test was reduced to 15 hours from 1 July 2006 by schedule 2, part 1, section 9 of the Employment and Workplace Relations Legislation Amendment (Welfare to Work and Other Measures) Act 2005 (the Amending Act). Schedule 2, part 1, section 13 of the Amending Act provided that changes to the continuing inability to work test did not apply to persons who had made a claim for DSP and had received a payment prior to 1 July 2006, save for a small transitional group of which the Applicant was not a member.

    Accordingly, the Applicant is subject to the 30 hour per week continuing inability to work test.

38. Mr Ozanic is to be assessed on his ability to work 30 hours per week and not the 15 hours a week required of the new rules.  As such the Respondent accepted that Mr Ozanic was unfit for work given the assessments of the JCA (Respondent’s SOFIC para 42).

39. The Respondent further contended that Mr Ozanic’s medical conditions were not permanent and that medical evidence indicates that functional impact is minimal. The Respondent stated that Dr Ponos (GP) at T23 pages 70 and 72, when assessing a condition which has a significant impact on the patient’s ability to function, described the Applicant’s PTSD being confined to a majority impact of “difficulty concentrating”. That was the only impact described.

1. The Respondent then drew attention to the JCA report at T23 page 82 where the Applicant reported that he “plays basketball on a regular basis, and is happy to drive to different areas …that he is okay in small groups …was able to cope with window cleaning”.

2. The Respondent then moved to T24, page 51 accentuating that the Applicant reported to Dr Needham that he “travels to Croatia (Bosnia) on an annual basis – that he does obtain some benefit from a natural spring in Croatia - and (he) may need to be there for more than three months”.  Dr Needham was unclear as to the details of the natural spring and its purported healing powers.

3. The Respondent then reiterated the findings of Dr Needham that supported the diagnosis of fibromyalgia and that the pain was manageable.  This led to the assessment of 5 points from the Impairment Tables, noting that there is “a mild functional impact on activities requiring physical exertion or stamina”.

4. The Respondent then drew the Tribunal’s attention to Dr McComish’s letter dated 15 April 2015 in which it is stated:

   [the Applicant] smokes about 20 cigarettes a week .. doesn’t drink excessively ... is able to exercise without limitation, swimming regularly and playing basketball once a week .. systems enquiry revealed no symptoms of concern.

5. The Respondent then addressed the various medical reports and the JCA findings relating to fibromyalgia, fatty liver, hyperlipidaemia, Haemorrhoids and Hepatitis B, difficulty standing for prolonged periods of time, etc. and noted that the Applicant reported at the JCA that he felt that these issues were well managed and had minimal impact on his life.  The Respondent then stated that the assessment of 5 points against these conditions was justified.

6. The Applicant had submitted to the Tribunal a bundle of clinical notes comprising 18 pages, primarily being blood test results and a letter dated 18 April 2016 from Dr Golic, the Applicant’s psychiatrist. The Tribunal recorded these as Exhibit A1. Upon examination it was determined that they were irrelevant to these proceedings due to their being dated in March, April and May 2016, well after the applicable date of cancellation of the Applicant’s DSP.

7. The Respondent did note, however, that Dr Golic’s letter of 18 April 2016, affirmed that the Applicant’s “chronic PTSD is unchanged. He receives optimal treatment for his condition. In my opinion his condition has for years sufficiently stabilised from a psychiatric point of view and is reasonably treated”.  The Respondent opined that whilst this letter is inadmissible, it does serve to confirm that the rating of 0 points previously afforded this PTSD condition remains warranted.

8. The Respondent contended, quite correctly, that further documents submitted by the Applicant as Exhibits A2 to A8 also post-dated the DSP cancellation and were therefore irrelevant to this hearing. The Tribunal and the Applicant accepted that the documents were not applicable.

9. At the hearing, the Respondent undertook a series of questions of the Applicant designed to evaluate the Applicant’s ability to undertake normal daily tasks such as walking to the train station unaided, shopping unaided, cooking meals, ablutions, socializing, reading the newspaper and watching TV. The Applicant’s answers all indicated that he had no difficulty performing any of those tasks, including being able to walk 20 minutes to the shops where he bought his daily grocery and meal requirements as he did not cook for himself in his flat.  He meets several times a week at the shops with his friend Alexander whom he met at the Croatia Club about two and half years ago.

10. When asked whether he lived alone the Applicant replied that he did so.  He divorced from his first wife Ljiljana on 1 June 2010 but still sees her on occasion as they have a son, Goran, together. He is an adult now living in Perth whom he also “sees sometimes weekly, other times fortnightly, sometimes monthly”.

11. The Applicant stated that Ljiljana assisted him with his Centrelink submission in May 2015 (T22, p60-67) and that he still uses her to assist in filling out forms.

12. The Applicant then affirmed that he does have a network of people around him who can provide assistance when needed.

13. The Respondent then asked about the Applicant’s second wife, Bijana Turjilic. The Applicant replied that he married Bijana on 19 August 2010 in Croatia and assisted her to come to Australia on 27 March 2014. He has never lived with her either overseas or in Australia and they are now divorced.  He does not see her at all.

14. The Respondent then pursued whether the Applicant still undertook swimming and basketball as indicated in the ARO report (T27, p93). The Applicant responded by saying that he swam regularly until April 2015 then stopped altogether in June 2015, and that he played basketball at Mirrabooka Sports complex as an ad-hoc player only, and that no team was involved.

15. The Respondent then asked the Applicant about his trips to Croatia, to which the Applicant replied that he went annually and was last there from December 2015 to 18 February 2016. He arranged all the travel himself including accommodation and meals.  He spent the majority of the six weeks at the SPA for natural spring water treatment as it provided some relief from his aches and pains. He travelled alone.

16. The Respondent closed her questioning by confirming that the Applicant was no longer working as a window cleaner and had not since December 2013.

    Applicant’s Oral Evidence

17. The Applicant stated that he retired in 2001 due to his PTSD and that he had been seeing a psychiatrist for six to 12 months prior. The psychiatrist assisted him in applying for DSP after 12 months. 

18. The Applicant stated that he had four motor vehicle accidents (MVAs) in the first year “which had a great impact on me”.  After the second MVA, he kept looking for part-time cleaning jobs but employers continually “knocked me back due to my being on compo”.  He continued with part-time window cleaning through friends.

19. The Applicant stated that “from 2010 to today, I suffered 10 days of chest pains which turned out not to be a heart attack.  I have had a second chest pain problem with a similar outcome.  I have fibromyalgia and have had many unhelpful blood tests.  There is no real cause or treatment.  I do my own treatment at the SPA as the doctors here do not know how to treat me anymore”.

20. The Applicant was allocated a housing commission flat in Subiaco in 2010 but the complex is occupied by younger people and there were very few people his age (60).  He stated that he suffers PTSD and anxiety due his being “lonely and because of the people dying around me”.

21. The Applicant stated that he was of the opinion “that Centrelink is a social(ist) institution and their treatment of pensioners is not good” and that he felt abandoned.

22. The Applicant further stated:

    I am now on Newstart Allowance which is $440 per fortnight which is much less than DSP at $770 per fortnight – it’s inhuman (sic).  I don’t smoke anymore – I have no pleasures in life – no incentive for Christmas or any other occasion.

23. He went on to complain that at first his medicals were free now he has to pay and that he cannot even afford his tablets.  He also stated that he has had PTSD for “four years” and that he had been awarded 10 points for it in the past and 5 points for fibromyalgia and that he was now not fit to work.  He stated that on 15 August 2015 he asked Centrelink for help with portability of his DSP but the psychologist there “saw him for only one hour on one day and how could she have arrived at her decision so quickly?”  He stated that he was “trying to take the pension out of Australia and my medical reports show increased readings which I believe is due to stress – fatty levels, sugar levels are up”. 

24. The Applicant stated that taking all his ailments into account, and all the appointments, with him being over 60, he suffers increased anxiety for his health and wellbeing.  He was concerned that with all his problems, he cannot go anywhere and that no employer will consider him.

25. He then stated that Centrelink had misunderstood his reasons for seeking continuance of DSP allowance – “they thought I was trying to obtain portability but then I was subjected to multiple tests – I am getting more sick with this”.

    Closing Remarks - Respondent

26. In closing, the Respondent reiterated that the Applicant’s fibromyalgia was assessed as “mild”. He is able to work, he can perform all daily living tasks, has capably travelled overseas on several occasions, can catch public transport, walk 20 minutes to the shops daily, play basketball and go swimming. He is fully ambulant, self-supporting and does not meet the Moderate Functional Impact requirement of Impairment Table 1, instead, he suffers only Mild Functional Impact as per Table 1 and therefore receives only 5 points.

27. As to the Applicant’s PTSD, the Respondent drew attention to Table 5 Mental Health Function. Relevantly the Respondent addressed the functional descriptors of Table 5 (refer to Annexure B). The Respondent contended that the Applicant satisfied criteria 1a, 1b, 1c, 1d and 1e. This constituted a rating of 0 points for PTSD.

28. At paragraph 56 of the Respondent’s SOFIC the Respondent accepts that the Applicant’s PTSD is a permanent condition which is fully diagnosed, treated and stabilised.

    Applicant’s Closing Remarks

29. Mr Ozanic stated:

    The first Tribunal has accepted 15 points on some evidence, the second Tribunal gave 15 points, and the third Tribunal required additional findings which I have done.  My GP says I am not fit to work, I have emergency reports and pain, I cannot solve the fibromyalgia.  I have submitted new reports today, I am still in treatment; it’s wearing me out.

    There is no cure for me, there is continuous monitoring and this process is deteriorating my health.  Centrelink is pushing me back some length health-wise.  The SPA is self-medication.

    In order for me to get $300 a fortnight more, I need to be in a madhouse with Australians.  I wish to say that Centrelink is not looking after the health of its customers.

    ASSESSMENT

30. The Tribunal noted that on 6 January 2014 Mr Ozanic made a general enquiry about portability of his DSP payments (T34, p107). On 21 January 2014, Mr Ozanic was advised that DSP was only payable for six weeks during any one overseas trip and that if he required a longer period he would need to undergo a review of his eligibility for DSP (T34, p108).

31. On 1 August 2014 (T34, p110) Mr Ozanic requested initiation of the medical review process to see if he qualified for portability of DSP.

32. At T34, p111 Mr Ozanic advised that he was intending to leave Australia permanently on 1 September 2014, travelling to Bosnia and Herzegovnia. He was advised by Centrelink staff that DSP cannot be paid outside Australia if he departed the country permanently. Nor could he be paid energy supplement, his pension concession card would be cancelled and any pension supplement would also be cancelled.

33. Mr Ozanic submitted paperwork for portability medical review on 1 August 2014 and, after being advised that the review could result in his losing his DSP, he elected to proceed.

34. On 22 May 2015, Mr Ozanic requested a medical assessment to determine if he was medically eligible to receive DSP under indefinite portability provisions as per section 1218AAA of the Act. On 17 June 2015, Mr Ozanic attempted to cancel his claim for indefinite portability and was informed that the medical assessment process will continue.  In these circumstances, this Tribunal is only to determine only Mr Ozanic’s eligibility for DSP as at 31 August 2015, disregarding the portability issue.

35. Mr Ozanic presented as a fit and healthy-looking 60 year old man. He was articulate in summarising his various ailments and was able to participate fully in the hearing process, albeit with the assistance of an interpreter. He demonstrated no symptoms of a lack of concentration during the three-hour hearing. He remained calm and collected throughout.

36. The Tribunal finds that there is no evidence that he has difficulty with self-care, social or recreational activities, home duties, interpersonal relationships, behaviour, planning, decision-making or work capacity. It particular many of those attributes are evident in his undertaking sole travel overseas on a regular basis.

37. After due consideration of the medical evidence presented, it is clear that Mr Ozanic suffers from a variety of ailments, many of which are common among persons of his age.  The majority of those ailments do not warrant consideration when assessing eligibility for DSP. 

38. From the perspective of this Tribunal however, the question is whether any of his conditions fall within the criteria for the awarding of 20 points under the applicable Impairment Tables to make him eligible for DSP as at 31 August 2015, the date of cancellation of his DSP.

39. The diagnosis of PTSD is affirmed as being fully diagnosed, treated and stabilised, as are his fibromyalgia, Hepatitis B, fatty liver and haemorrhoids.  All ailments are deemed to be well managed by the Applicant, as affirmed by the Applicant, with none having a functional impact on his day-to-day activities, other than fibromyalgia which has a mild impact on his functionality.

40. The awarding of 5 points for the mild functional impact brought about by the fibromyalgia is not contested by the Respondent and the Tribunal finds it appropriate given the assessment by the JCA as per paragraph 29 above.

41. It is clear to the Tribunal that Mr Ozanic has been assessed as having long-standing PTSD, however, the medical evidence of Dr Golic shows that there are long periods between visits by Mr Ozanic, notably, he started with Dr Golic in 1998 yet his next evidentiary visit appears to be on 29 October 2014 (T16, p50) where Dr Golic assesses the Applicant’s condition as being in partial remission and that he had not noticed any change in his psychiatric symptoms.  The next recorded visit is on 24 March 2015 some five months later (T19, p53) where much of what the Applicant is recorded as having said to Dr Golic is now highly questionable, given the Applicant’s verbal evidence to this Tribunal.  The Applicant’s next visit to Dr Golic was unfortunately on 18 April 2016, some 12 months after the last visit and outside the scope of this Tribunal hearing.

42. After due consideration of the evidence presented, the Tribunal finds that the assessment by the JCA in awarding 0 points for PTSD in accordance with the Impairment Tables is justified.

43. The decision of the Tribunal is that the total points applicable to the Applicant are 5 points and that he therefore fails to qualify for payment of Disability Support Pension as of 31 August 2015.

    DECISION

44. The decision under review is affirmed.

I certify that the preceding 83 (eighty-three) paragraphs are a true copy of the reasons for the decision herein of Mr W. Evans, Member

........[Sgd]................................................................

Administrative Assistant

Dated 25 October 2016

Date of hearing	14 September 2016
Applicant	In person
Representative for the Respondent	Ms S Sangha
Solicitors for the Respondent	Mills Oakley Lawyers

Annexure A

Table 1 - Functions requiring Physical Exertion and Stamina

Introduction to Table 1

·     Table 1 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring physical exertion or stamina.

·     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 purposes of this Table include, but are not limited to, the following:

• a report from the person’s treating doctor;
• a report from a medical specialist confirming diagnosis of conditions commonly associated with cardiac or respiratory impairment (e.g. cardiac failure, cardiomyopathy, ischaemic heart disease, chronic obstructive airways/pulmonary disease, asbestosis, mesothelioma, lung cancer, chronic pain);
• a report from a medical specialist confirming diagnosis of conditions commonly associated with extreme fatigue or exhaustion or other conditions affecting physical exertion or stamina (e.g. end stage organ failure, widespread/metastatic cancer, chronic pain, or other long-term conditions where treatment cannot sufficiently control symptoms);
• results of exercise, cardiac stress or treadmill testing.

Points

Descriptors

0

There is no functional impact on activities requiring physical exertion or stamina.

(1)      The person:

(a)      is able to undertake exercise appropriate to their age for at least 30 minutes at a time; and

(b)      has no difficulty completing physically active tasks around their home and community.

5

There is a mild functional impact on activities requiring physical exertion or stamina.

(1)      The person:

(a)      experiences occasional symptoms (e.g. mild shortness of breath, fatigue, cardiac pain) when performing physically demanding activities and, due to these symptoms, the person has occasional difficulty:

(i)       walking (or mobilising in a wheelchair) to local facilities (e.g. a corner shop or around a shopping mall, larger workplace or education or training campus), without stopping to rest; or

(ii)       performing physically active tasks (e.g. climbing a flight of stairs or mobilising up a long, sloping pathway or ramp if in a wheelchair) or heavier household activities (e.g. vacuuming floors or mowing the lawn); and

(b)      is able to perform most work-related tasks, other than tasks involving heavy manual labour (e.g. digging, carrying or moving heavy objects, concreting, bricklaying, laying pavers).

Annexure B

Table 5 – Mental Health Function

Introduction to Table 5

·   Table 5 is to be used where the person has a permanent condition resulting in functional impairment due to a mental health condition (including recurring episodes of mental health impairment).

·   The diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).

·   Self-report of symptoms alone is insufficient.

·   There must be corroborating evidence of the person’s impairment.

·   Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:

• a report from the person’s treating doctor;
• supporting letters, reports or assessments relating to the person’s mental health or psychiatric illness;
• interviews with the person and those providing care or support to the person.

·   In using Table 5 evidence from a range of sources should be considered in determining which rating applies to the person being assessed.

·   The person may not have good self-awareness of their mental health impairment or may not be able to accurately describe its effects.  This is to be kept in mind when discussing issues with the person and reading supporting evidence.

·   The signs and symptoms of mental health impairment may vary over time.  The person’s presentation on the day of the assessment should not solely be relied upon.

·   For mental health conditions that are episodic or fluctuate, the rating that best reflects the person’s overall functional ability must be applied, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.

Points

Descriptors

0

There is no functional impact on activities involving mental health function.

(1)      The person has no difficulties with most of the following:

(a)      self care and independent living;

Example: The person lives independently and attends to all self care needs without support.

(b)      social/recreational activities and travel;

Example 1: The person goes out regularly to social and recreational events without support.

Example 2: The person is able to travel to and from unfamiliar environments independently.

(c)      interpersonal relationships;

Example: The person has no difficulty forming and sustaining relationships.

(d)      concentration and task completion;

Example 1: The person has no difficulties concentrating on most tasks.

Example 2: The person is able to complete a training or educational course or qualification in the normal timeframe.

(e)      behaviour, planning and decision-making;

Example: There is no evidence of significant difficulties in behaviour, planning or decision-making.

(f)       work/training capacity.

Example: The person is able to cope with the normal demands of a job which is consistent with their education and training.

Annexure C

Table 10 – Digestive and Reproductive Function

Introduction to Table 10

·     Table 10 is to be used where the person has a permanent condition resulting in functional impairment related to digestive or reproductive system functions.

·     Digestive conditions may include diseases that affect the mouth, salivary glands, oesophagus, stomach, intestines (small or large intestine), pancreas, liver, gall bladder, bile ducts, rectum or anus.

·     Reproductive system conditions may include gynaecological diseases (e.g. severe and intractable endometriosis, ovarian cancer) and conditions of the male reproductive system (e.g. testicular cancer).

·     Table 13 (Continence Function) is to be used for a person who requires continence and ostomy care (that is, a person with an ileostomy or colostomy).

·     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 purposes of this Table include, but are not limited to, the following:

• a report from the person’s treating doctor;
• a report from a medical specialist (such as a gastroenterologist, a gynaecologist, an urologist or an oncologist) confirming diagnosis of a digestive or reproductive system condition;
• results of investigations (such as X-Rays or other imagery, endoscopy or colonoscopy).

·     Symptoms of digestive conditions include, but are not limited to, pain, discomfort, nausea, vomiting, diarrhoea, constipation, reflux, heartburn, indigestion or fatigue.

·     Personal care needs associated with digestive conditions include, but are not limited to, the need to take medications when symptoms occur, care of special feeding equipment (e.g. Percutaneous Endoscopic Gastrostomy (PEG) button or special feeding tube), special diets or feeding solutions, strategies to relieve pain, additional toileting and personal hygiene needs.

·     Symptoms associated with reproductive system conditions include, but are not limited to, pain, fatigue, menorrhagia or dysmenorrhea.

·     Personal care needs associated with reproductive system conditions include, but are not limited to, strategies to relieve pain or more frequent menstrual care.

Points

Descriptors

0

There is no functional impact on work-related or daily activities due to symptoms or personal care needs associated with a digestive or reproductive system condition.

(1)      The person is not usually interrupted at work or other activity by symptoms or personal care needs associated with a digestive or reproductive system condition.