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

[2021] AATA 141

Petojevic and Secretary, Department of Social Services (Social services second review) [2021] AATA 141 (11 January 2021)

Division:GENERAL DIVISION

File Number(s):      2020/1766

Re:Nada Petojevic

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Mr S Evans, Member

Date:11 January 2021

Date of written reasons:        5 February 2021

Place:Sydney

For the reasons given orally at the conclusion of the hearing of this matter on 11 January 2021, the decision under review, being the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal made on 20 February 2020, is affirmed.

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Mr S Evans, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – mental health conditions – adjustment disorder with mixed depression, anxiety – whether impairments fully diagnosed, fully treated and fully stabilised – where applicant had not taken prescribed medication or undertaken psychological treatment  – where impairment rating cannot be assigned – physical condition – arthritis – where insufficient evidence to assign impairment rating – where self-reports of applicant insufficient – decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) ss 18B, 43

Social Security Act 1991 (Cth) ss 94

Social Security (Administration) Act 1999 (Cth)

CASES

Negri v Secretary, Department of Social Services [2016] FCA 879

SECONDARY MATERIALS

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

WRITTEN REASONS FOR ORAL DECISION

Mr S Evans, Member

5 February 2021

INTRODUCTION

1. Nada Petojevic (“Ms Petojevic”) is the applicant. She applied for Disability Support Pension (“DSP”) on 10 May 2019 on the basis of her medical conditions of adjustment disorder with mixed depression and anxiety (chronic type) (“mental health conditions”), and arthritis. Her application was refused by the Secretary of the Department of Social Services (“the Secretary”) on the basis that she did not meet the requirements under the Social Security Act 1991 (Cth) (“the Act”).

2. Ms Petojevic seeks review on the grounds that on the grounds that all the information she has provided to the Secretary and the Tribunal sufficiently justified that she should receive DSP.

3. For the reasons which follow, the decision under review was affirmed.

   General Background

4. Ms Petojevic first applied for DSP after sustaining injuries in a motor vehicle accident in 2011. She currently lives with her husband, who she said is in receipt of DSP. She and her husband get by with the support of their three adult children.

5. Ms Petojevic’s application for DSP was rejected by a delegate of the Secretary on 25 June 2019, a decision which was subsequently affirmed by an Authorised Review Officer (“ARO”) on 10 December 2019. Ms Petojevic appealed the decision of the ARO to the Social Services and Child Support Division of the Tribunal (“AAT1”) which affirmed the ARO’s decision and rejected her application on 20 February 2020. Ms Petojevic now seeks review of the AAT1 decision in the General Division of the Administrative Appeals Tribunal (“the Tribunal”).

   Hearing

6. The matter was heard on 11 January 2021. Ms Petojevic was self-represented and both she and the representative of the Respondent appeared via telephone in accordance with the COVID-19 Special Measures Practice Direction given under section 18B of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”).

7. At the hearing, Ms Petojevic was provided an opportunity to present her case. At the conclusion of the hearing, the Tribunal affirmed the decision under review and gave oral reasons for its decision as permitted under subsection 43(2) of the AAT Act. Ms Petojevic subsequently sought a statement in writing of the reasons for the decision under subsection 43(2A) of the AAT Act. The Tribunal therefore provides reasons in writing for the decision which, in accordance with subsection 43(2B) of the AAT Act, include findings on material questions of fact and a reference to the evidence or other material on which these findings were based.

8. In accordance with the Federal Court decision in Negri v Secretary, Department of Social Services [2016] FCA 879, these written reasons are consistent with the oral decision given and do not contain altered or new reasoning, but it is hoped that they explain in a fuller way the reasons why the Tribunal decided to affirm the original decision to refuse Ms Petojevic’s application for DSP.

   CRITERIA TO BE APPLIED

   Qualification for Disability Support Pension

9. DSP is an income support payment for people with a disability that prevents them from working at least 15 hours per week. Section 94 of the Act sets out the criteria for qualification for payment of DSP:

   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; and

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

   (c)    one of the following applies:

   (i)the person has a continuing inability to work;…

10. The Impairment Tables[1] referred to in paragraph 94(1)(b) of the Act are used to assign ratings to determine the level of functional impact that a condition has on an applicant. Only medical conditions that are permanent, have been fully diagnosed, fully treated and fully stabilised and are likely to persist for at least two years, can be allocated points under the Impairment Tables.

    [1] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (“Impairment Tables”).

11. Subsection 6(6) of Part 2 of the Impairment Tables sets out the requirements for a condition to be fully stabilised:

    (a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or

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

    (i)     significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or

    (ii)    there is a medical or other compelling reason for the person not to undertake reasonable treatment.

12. Reasonable treatment is defined at subsection 6(7) of the Impairment Tables as treatment that:

    (a)is available at a location reasonably accessible to the person; and

    (b)is at a reasonable cost; and

    (c)can reliably be expected to result in a substantial improvement in functional capacity; and

    (d)is regularly undertaken or performed; and

    (e)has a high success rate; and

    (f)carries a low risk to the person.

    The Qualification Period

13. The impairment must be present at the time of the claim or within the following 13 weeks, as specified by Schedule 2 of the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”).

14. As noted, Ms Petojevic lodged her claim for DSP on 10 May 2019 and that triggers the assessment process to determine eligibility. Ms Petojevic must qualify for DSP on the date of the claim or within 13 weeks thereafter (i.e. 9 August 2019). I will refer to this as the “qualification period”.

15. The practical implication for this application is that the Tribunal can only consider Ms Petojevic’s conditions and qualification for DSP during the qualification period. The Tribunal notes that the medical reports that come into being after the relevant period are only pertinent to the extent that they refer to Ms Petojevic’s conditions during the qualification period.

    Continuing Inability to Work

16. Paragraph 94(1)(c) of the Act requires that to be eligible for DSP a person must have a continuing inability to work. The requirement for a continuing inability to work is satisfied if the person has a severe impairment – meaning they have an impairment of 20 points or more under the Impairment Tables of which 20 points or more are under a single Impairment Table. Alternatively, they have actively participated in a “program of support” and their impairment is of itself sufficient to prevent them from doing any work independently of a program of support, or undertaking a training activity, in the next two years.

    ISSUE

17. The issue before the Tribunal is whether Ms Petojevic qualified for DSP during the qualification period.

    MEDICAL CONDITIONS

18. The Secretary accepts, and based on the evidence the Tribunal agrees, that Ms Petojevic had a physical, intellectual or psychiatric impairment such that she satisfies paragraph 94(1)(a) of the Act.

19. Ms Petojevic’s general practitioner, Dr Witkowski, wrote in a report dated 9 January 2016 that Ms Petojevic had experienced “fluctuating symptomatic anxiety-depression” requiring therapy by clinical psychologists and psychiatrists and medication to assist in daily functioning.[2] He writes that the situation had been aggravated by a “quite substantial motor vehicle accident” in June 2011. As a consequence of the accident, Dr Witkowski writes that Ms Petojevic had experienced a “plethora of musculo-skeletal symptoms including neck, shoulders, chest wall and lower back”.

    [2] Section 37 Documents, T10 at 125.

20. Ms Petojevic was diagnosed with adjustment disorder with mixed depression and anxiety (chronic type) by a clinical psychologist, Dr Protulipac, on 15 March 2016.[3]

    [3] Ibid, T12 at 127.

    Mental Health Conditions

21. On 29 January 2015, Ms Petojevic was admitted to Liverpool Fairfield Aged and Mental Health Care following a self-harm attempt. She was sent home on 3 February 2015 and was advised to start a mental health care plan to see a psychologist.[4]

    [4] Ibid, T7 at 107.

22. On 6 December 2015, Ms Petojevic was again admitted to hospital following an overdose of benzodiazepines. An admission summary states that she was assessed by the mental health team and “felt she was safe for ongoing management on an outpatient basis”. She was discharged with information regarding access to the Women’s Health centre for counselling and support.[5]

    [5] Ibid, T15 at 130.

23. On 29 November 2017, she was admitted to Liverpool Hospital having overdosed on Xanax.[6]

    [6] Ibid, T28 at 154.

24. The Secretary contends that the condition was not fully treated or stabilised during the qualification period on the grounds that she had not accessed psychological counselling or psychiatric treatment since 2017 and was not optimally medicated.

25. Ms Petojevic’s Medicare Patient History shows that she attended six sessions of psychological counselling with Dr Protulipac between 8 March 2017 and 12 April 2017. It is contended that she received no treatment for her condition until she again saw Dr Protulipac for the purpose of obtaining a report to support her DSP claim on 16 May 2019. She saw Dr Protulipac six times between 16 May 2019 and 19 June 2019.

26. At the hearing, Ms Petojevic was asked about her treatment for her mental health conditions. It was put to her that she told a Job Capacity Assessor (“JCA”) in November 2019 that she had not completed any psychological counselling between April 2017 and May 2019. She claimed that she had been seen by psychologists “continually…but obviously there were breaks in between”. Specifically, Ms Petojevic claimed to have seen Dr Protulipac “off and on” and in recent times she had a lot of telephone conversations with him and she would call him, and he would calm her down. Asked specifically if she had seen Dr Protulipac in that period, she told the Tribunal that she had seen him on a pro bono basis. Asked if she had seen him regularly, she said it was not regular and could have been monthly, but she was not sure.

27. When Ms Petojevic was discharged from Liverpool Hospital in November 2017, it was recommended that she follow up with the community mental health service. Ms Petojevic does not recall this recommendation being made and conceded that she had not done so.

28. Asked about the medication she takes to treat her condition, Ms Petojevic told the Tribunal that she currently takes Cotrimil or Celepax and has done so for some time. She recalls she may have taken Lexotan or Celapram during the qualification period. She now takes her husband’s medication, splitting the tablets in two to save money as she claims that she can no longer afford Lexotan.

29. The Secretary submits that Ms Petojevic’s mental health condition cannot be assigned an impairment rating as it was not fully diagnosed, treated and stabilised during the qualification period. The contention is made on the basis that Ms Petojevic had not been optimally treated by the end of the qualification period. Specifically, she had not accessed psychological counselling or psychiatric treatment since 2017 and was not “optimally medicated”.

30. Ms Petojevic reported that she ceased psychological treatment in April 2017 as she was advised by her psychologist that he did not generally provide services under Medicare and she did not wish to engage with another psychologist. This is supported by Ms Petojevic’s Medicare records as outlined above at paragraph 25.  

31. Dr Protulipac provided an extensive assessment of Ms Petojevic which details her medical history and conditions as of 3 May 2019.[7] Dr Protulipac states that Ms Petojevic met the criteria for “Major Depressive Disorder, Recurrent, Moderate, Without Psychotic Features”, “Post Traumatic Stress Disorder, Chronic Type” and “Panic Disorder with Agoraphobia”.  

    [7] Ibid, T32 at p 175–189.

32. Dr Protulipac also reported that Ms Petojevic was taking Citalopram, Bromazepine and Temazepam among other medication. Ms Petojevic’s Medicare records indicate that she had consistently been dispensed with Citalopram, but not Bromazepine or Temazepam. When she was discharged from Liverpool Hospital on 6 December 2017, she was provided a prescription for Quetiapine, but it is apparent that Ms Petojevic did not take the medication as advised.

33. Dr Protulipac provided a further report dated 18 June 2020 in which he confirms that for the purpose of Ms Petojevic’s DSP claim, her mental health condition is “fully diagnosed, fully treated and fully stabilised.”

34. I find that Ms Petojevic’s mental health conditions were not fully treated during the qualification period because she was not taking the medication which she had been prescribed. Furthermore, by her own evidence, Ms Petojevic found treatment from Dr Protulipac helpful and yet she did not undertake any psychological treatment between April 2017 and May 2019.

35. As Ms Petojevic was had not undertaken reasonable treatment during the qualification period, her condition was not fully treated and stabilised. Having determined that Ms Petojevic’s mental health conditions were not fully treated or fully stabilised, they cannot be assigned an impairment rating.

    Arthritis

36. The Secretary accepts, and based on the evidence the Tribunal agrees, that this condition was fully diagnosed, treated and stabilised during the qualification period.

37. As it is not in contention that Ms Petojevic’s physical conditions are eligible for an impairment rating, there is no need for the Tribunal to explore her past treatment in detail.

38. The Secretary contends that Ms Petojevic’s conditions should be rated zero points under Impairment Table 2 as there is insufficient corroborating evidence as to the functional impairment during the qualification period. It is noted that Ms Petojevic told the JCA on 10 October 2019 that her shoulder pain resulted in minimal functional impact and that she was mainly affected by her neck pain. She also told the AAT1 that she could not carry a heavy bag of shopping without experiencing discomfort and pain and that she experienced pain in her shoulder when manipulating small object in her hands. However, the Secretary notes that there is no contemporaneous medical evidence to support these claims.

39. At the hearing, Ms Petojevic confirmed that she can shower and perform light household tasks such as washing dishes and stacking the dishwasher. She can prepare food but may leave the dishwasher on or forget to flush the toilet. She said she needs someone to supervise her. She confirmed that she can drive short distances but claims that she “cannot remember anything”, which she claims was her biggest problem. She goes out independently and attends church every week. She says that when she sits for period of time, she needs to take strong painkillers, and this was how she was able to sit for 40 minutes with the JCA. She has not made a further application since this one and says that it takes a toll out of her every time she gets rejected.

40. At the hearing, Ms Petojevic described a functional impact in relation to this impairment which would be consistent with a rating of 5 points under either Impairment Table 2 (Upper Limb Function) or 4 (Spinal Function). The Impairment Tables do not allow points to be allocated on the solely on the basis of self-reporting by an applicant.

41. As there is insufficient evidence or detail to assign a rating in accordance with the descriptors in the Impairment Tables, Ms Petojevic is not eligible for an impairment rating under Impairment Tables 2 or 4.  

    CONCLUSION

42. As the Tribunal has concluded that Ms Petojevic is not entitled to 20 or more points under the Impairment Tables, her application cannot succeed, and it is not necessary for the Tribunal to consider if she meets the requirements in paragraph 94(1)(c).

43. Whilst the Tribunal accepts that Ms Petojevic suffers from the claimed conditions, she has not met the requirements for DSP as set out in the Act.

44. Finally, the Tribunal notes that Ms Petojevic has applied for DSP on previous occasions and had her applications rejected by the Secretary. During the hearing, she expressed a degree of exasperation with the process of making an application for DSP. It is the case that the demands placed on applicants to provide evidence of their medical conditions are necessary to ensure compliance with the Act but are also often both onerous and expensive. Ms Petojevic told the Tribunal that applying for DSP takes a lot out of her, which the Tribunal accepts.

    DECISION

45. The decision under review, being the decision of the AAT1 made on 20 February 2020, is affirmed.

I certify that the preceding 45 (forty -five) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

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Associate

Dated: 5 February 2021

Date(s) of hearing:	11 January 2021
Applicant:	By telephone
Solicitors for the Respondent:	Services Australia