Petrovic and Secretary, Department of Social Services (Social services second review)
[2018] AATA 748
•4 April 2018
Petrovic and Secretary, Department of Social Services (Social services second review) [2018] AATA 748 (4 April 2018)
Division:GENERAL DIVISION
File Number(s): 2016/1367
Re:Dragan Petrovic
APPLICANT
Secretary, Department of Social Services And
RESPONDENT
DECISION
Tribunal:Member K. Parker
Date:4 April 2018
Place:Melbourne
The Tribunal affirms the reviewable decision. The Tribunals finds that as at 8 October 2015, the Applicant was not eligible to receive the disability support pension under the Social Security Act 1991 (Cth). The decision made to cancel the Applicant’s DSP on that date was correct.
[sgd]........................................................................
Member K. Parker
SOCIAL SECURITY – disability support pension – cancellation decision – whether the applicant has physical, intellectual or psychiatric impairments – back and neck condition – adjustment disorder with mixed anxiety and depressed mood – bilateral hip condition – right heel and foot condition – head injury – chronic pain – oesophageal condition – whether conditions were permanent – whether conditions were fully diagnosed, treated and stabilised – Tables 3, 4, 5, 7 and 10 of the Impairment Tables – meaning of “assistance” as appearing in the descriptors in the Impairment Tables – meaning of “to stand” and whether it permits a person to alter their weight, standing position or posture – whether the impairments attracted 20 points or more – multiple conditions causing single impairment under any one table – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) – ss 37, 71
Social Security Act 1991 (Cth) – ss 23, 26, 94
Social Security (Administration) Act 1999 (Cth) s 80
Social Security (Tables for the Assessment of work-related Impairment and Disability Support Pension) Determination 2011 – ss 6, 8, 9, 10 and 11 and Part 3, Tables 3, 4, 5, 7 and 10Secondary Materials
Guide to Social Security Law
Cases
Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
DPP v Walters (2015) 49 VR 356
Re Eid and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 558
Freeman v Secretary, Department of Social Security [1988] FCA 294
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Re Malik and Secretary, Department of Social Services [2015] AATA 649
Negri v Secretary, Department of Social Services [2016] FCA 879
Re O’Bryan and Secretary, Department of Social Services [2014] AATA 590
Re Saad and Secretary, Department of Social Services [2015] AATA 160
Re Secretary, Department of Social Services and Davidson [2015] AATA 533
Secretary, Department of Employment & Workplace Relations v Harris [2007] FCAFC 130
Re Secretary, Department of Social Services and Seyfang [2016] AATA 243
Re Shaer and Secretary, Department of Social Services [2015] AATA 1005
Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286
Re Spry and Secretary, Department of Social Servcies and Anor [2014] AATA 722
Re Summers and Secretary, Department of Social Security [2014] AATA 165REASONS FOR DECISION
Member K. Parker
4 April 2018
INTRODUCTION
Mr Dragan Petrovic (Mr Petrovic) is a 61 year old man. He was born in Yugoslavia (now Bosnia), and immigrated to Australia in 1978 at the age of 21. Before ceasing work, Mr Petrovic worked in various occupations including as a fitter and turner, bricklayer, painter, truck driver and briefly, in the hospitality industry. He was involved in two car accidents in 1981 and again, in 1985.
From 1 November 2000 until 8 October 2015, Mr Petrovic was granted the disability support pension (DSP) based on a “musculo-skeletal” condition. Mr Petrovic received a sickness allowance at various times in the 1990’s.
Following a review, Centrelink considered that Mr Petrovic no longer qualified for the DSP under the Social Security Act 1991 (Cth) (Act) and decided to cancel his DSP on 8 October 2015.
Mr Petrovic sought review by an authorised review officer (ARO) of Centrelink. The ARO made a decision on 13 November 2015 to affirm the original decision made to cancel his DSP.
Mr Petrovic sought review by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1). On 24 February 2016, the AAT1 affirmed the decision of Centrelink’s ARO to cancel his DSP. The AAT1 found that Mr Petrovic’s:
(a)mental health condition was not fully diagnosed, treated and stabilised and no impairment rating could be assigned to it under Table 5;
(b)back condition had caused a mild functional impact under Table 4 (to which a rating of five points applied);
(c)right heel condition had caused a mild functional impact under Table 3 (lower limb function) (to which a rating of five points applied). The AAT1 found that lower limb impairment to Mr Petrovic due to the condition of osteoarthritis of the left hip had been surgically resolved.
On 16 March 2016, Mr Petrovic lodged an application for review by the General Division of the Administrative Appeals Tribunal (Tribunal).
This Tribunal affirms the decision under review for the reasons to follow.
LEGISLATIVE FRAMEWORK
Section 94 of the Act sets out the qualification requirements for the DSP as follows (as relevant to this application):
(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;
…
Note 2: For Impairment Tables see subsection 23(1) and sections 26 and 27.
…
‘Impairment Tables’ is defined in s 23 of the Act as the tables determined by an instrument under s 26(1). The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Determination) prescribes a set of tables for assessing the degree of impairment caused by a permanent condition or conditions more likely than not to persist for more than two years (Impairment Tables). The Impairment Tables assign ratings to determine the level of functional impact of each impairment.
The following subsections of section 6 of the Determination are relevant to the assessment of impairment ratings:
Impairment ratings
(3)An impairment rating can only be assigned to an impairment if:
(a)the person’s condition causing that impairment is permanent; and
Note: For permanent see subsection 6(4).
(b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Example: A condition may last for more than 2 years, but the impairment resulting from that condition may be assessed as likely to improve or cease within 2 years – if this is the case, an impairment rating under the Tables cannot be assigned to the impairment.
Permanency of conditions
(4)For the purposes of paragraph 6(3)(a) a condition is permanent if:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)the condition has been fully treated; and
Note: For fully diagnosed and fully treated see subsection 6(5).
(c)the condition has been fully stabilised; and
Note: For fully stabilised see subsection 6(6).
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Fully diagnosed and fully treated
(5)In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
Fully stabilised
(6)For the purposes of paragraph 6(4)(c) and subsection 11(4) 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 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.
Note: For reasonable treatment see subsection 6(7)
Reasonable treatment
(7) For the purposes of subsection 6(6), reasonable treatment is 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.
Subsection 6(1) of the Determination provides: “the impairment of a person must be assessed on the basis of what they can, or could do, not on the basis of what the person chooses to do or what others do for the person”. Subsection 6(2) also provides that the person’s medical history must be considered before applying the Impairment Tables to a person’s impairment. Section 8(1) of the Determination provides that symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.
Further, subsection 11(3) of the Determination provides that a descriptor applies when the person can do the activity normally and on a repetitive or habitual basis (i.e. they are generally able to do that activity whenever they attempt it) and not only once or rarely. Subsection 11(4) of the Determination provides that when assessing impairments caused by conditions that have stabilised as episodic or fluctuating, a rating must be assigned which reflects the overall functional impact of those impairments, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate. This is relevant in Mr Petrovic’s case, in relation to his permanent conditions, and the Tribunal has taken this into account when making its assessment of what impairment rating should apply.
Section 80 of the Social Security (Administration) Act 1999 (Cth) (Administration Act) provides that a social security payment, such as the DSP, may be cancelled if a person is no longer qualified to receive it.
ISSUES
The issues to be determined in this application, as at the Qualification Date, are:
(a)whether Mr Petrovic had any physical, intellectual, or psychiatric impairments;
(b)whether the conditions causing those impairments were permanent (requiring an assessment of whether they were fully diagnosed, treated, and stabilised), and were more likely than not to persist for more than two years;
(c)if so, whether those impairments, together or separately, attracted a rating of 20 points or more under any one or more of the Impairment Tables; and
(d)if so, whether Mr Petrovic had a continuing inability to work.
CONSIDERATION
Qualification Date
As contended for by the Secretary, the Tribunal accepts that it must consider whether Mr Petrovic met the eligibility requirements for the DSP as at the date of cancellation, being 8 October 2015 (Qualification Date).
The Federal Court in Freeman v Secretary, Department of Social Security [1988] FCA 294 found as follows:
[12] The ambit of the jurisdiction of the Administrative Appeals Tribunal in relation to the review of a decision to cancel a pension or benefit is therefore less than would be the jurisdiction of the Tribunal in relation to a refusal to grant a pension or benefit or a decision suspending the payment of a pension or benefit. In the latter cases, there may well be an ongoing entitlement to a pension or benefit which the Tribunal should recognise when formulating its decision. However, if the Tribunal comes to the view that the decision to cancel was the correct or preferable decision, then no further matter remains for the Tribunal’s consideration. Any entitlement of the applicant to a pension or benefit at a subsequent time must be the subject of a further claim which, having been made, would only become the subject of review within the Tribunal’s jurisdiction once a decision with respect to it had been made by an officer of the Department of Social Security and that decision had been the subject of appeal and reconsideration in accordance with s.19.
This decision was applied by the Tribunal on many occasions including in the matters of Re Shaer and Secretary, Department of Social Services [2015] AATA 1005 and ReMalik and Secretary, Department of Social Services [2015] AATA 649 and Re Saad and Secretary, Department of Social Services [2015] AATA 160, standing for the proposition that the Tribunal must only consider whether a person qualified for DSP on the date of cancellation.
The Tribunal is guided by the observations of Gyles J in the Federal Court of Australia decision of Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at paragraph [1]:[1]
…the applicant’s entitlement to the pension must be considered as at the date of his claim, namely, 3 May 2004 and a period of 13 weeks thereafter. Any subsequent changes in his health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time.
[1] Approved by Besanko J in Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [26] to [28]. The Harris case was appealed to the Full Court of the Federal Court in Secretary, Department of Employment & Workplace Relations v Harris [2007] FCAFC 130 but the observations of Gyles J at first instance on this issue were not disturbed by the Full Court’s appeal decision. The approach to be taken was dictated by the terms of the legislation - Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286.
By extension, the Tribunal considers that it must consider Mr Petrovic’s entitlement to DSP as at the date of cancellation being 8 October 2015 and that any subsequent changes to his health is irrelevant to the questions which arise in this application, except insofar as it may cast light on the position as at 8 October 2015.
Back and neck condition – impairment to spinal function under Table 4
Mr Petrovic has suffered from a longstanding back and neck condition. The Secretary did not dispute that this condition was fully diagnosed, treated and stabilised.
The Tribunal notes that Dr S Alexeyeff, General Practitioner, completed a “DSS Treating Doctor’s Report” in reference to Mr Petrovic on 25 August 1992. This form stated that Dr Alexeyeff had been treating Mr Petrovic since September 1988. The doctor diagnosed Mr Petrovic with “back and neck pains” and he listed that this condition was long term (i.e. likely to persist for longer than two years). Mr Petrovic was certified as being unfit to perform any work, including on a part time basis and that his unfitness for work was likely to last for six to twelve months.[2]
[2] The Secretary lodged a set of documents with the Tribunal on 31 March 2016 pursuant to its obligations under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (T-Documents). Refer T-Documents T9.
On 14 September 1992, Mr Petrovic was examined by Dr Brenda Harries, a Government-appointed Examining Medical Officer. Dr Harries assessed Mr Petrovic at that time as having “nil or minor restriction” with respect to his cervical and thoracolumbar spine and that there was no sciatica present. Dr Harries’s clinical findings included the following, “Full range of neck and back movement with no tenderness. Does not c/o [complain of] pain. All reflexes present & equal. No less 1 sciatica”. The history given by Mr Petrovic was recorded as follows, “Back & neck pain – one & off since [motor vehicle accident] 1981. Aggravated by next [motor vehicle accident] 1985. When gets nervous neck & back gets worse”. As part of the general assessment, Dr Harries stated that, “I see no medical reason why Mr Petrovic could not immediately return to full-time gainful employment in any of his previous jobs. He could also do e.g. work on a farm, as he seems to enjoy that life-style a lot. He would probably not be a good candidate for Vocational Rehabilitation, as he appears to be unmotivated to return to the work force”.[3]
[3] Refer T-Documents T10.
In a DSS Medical Certificate issued on 21 February 1993, Dr Alexeyeff provided a diagnosis relating to Mr Petrovic of, “Chronic spondylitis”.[4] The doctor’s prognosis was that Mr Petrovic was likely to be able to return to work in the next three months.
[4] Refer T-Documents T11.
In a DSS Treating Doctor’s Report completed by Dr Alexeyeff on 11 January 1994, Dr Alexeyeff made two diagnoses in relation to Mr Petrovic but no diagnosis relating to any back or neck conditions.[5] The doctor described the conditions as stable and estimated that Mr Petrovic was likely to remain unfit for work for three to six months.
[5] Refer T-Documents T12.
In a DSS Medical Certificate issued on 22 March 1994, Dr Alexeyeff stated a diagnosis of, “Chronic Cervical Spondylitis” and certified Mr Petrovic as being unable to work for the next three months.[6]
[6] Refer T-Documents T13.
On 4 July 1994, Mr Petrovic was examined by Dr N R Rose, a Psychiatrist, who held that positions of Medical Referee Commonwealth of Australia, Honorary Lecturer Department of Psychological Medicine Monash University, Formerly Visiting Psychiatrist Prince Henry’s Hospital. Dr Rose stated as follows in his report dated 7 July 1994:[7]
…[Mr Petrovic] impressed me as a healthy looking young man who gave a very vague history and who was notably hypochondriacal. He was neither obviously depressed or anxious.
…
Ever since the first accident [in 1981], Mr Petrovic has been somewhat forgetful and he has been prone to regular headaches. He has tended to sleep poorly. He has to take analgesics for back pain and for headache but he takes no other medication. Despite these significant physical complaints and despite having poor concentration, he has been able to play regular soccer. In fact, he used to play for the Richmond United Club until four years ago.
[7] Refer T-Documents T15.
On 22 July 1994, Mr Petrovic was examined by Dr M. Pascal, a Government-appointed Examining Medical Officer.[8] Dr Pascal assessed Mr Petrovic at that time as having, “Cervical spondylitis. Muscular, joint pains…not much change in his condition since he was last seen. He complains of sore back and neck, and of nervous problems. He is not on any medication and has never been referred to a specialist”. Upon physical examination, there were no abnormalities assessed in his cervical spine and thoracolumbar spine. Dr Pascal’s general assessment of Mr Petrovic was recorded as:
38 year old person, who last worked as a drive for 9 months up to September 1990, when he stopped work not for any medical reasons, but because of a disagreement with his boss. He has been complaining of ill health for some time and is currently on [Sickness Allowance].
He was first seen in September 1992, when he was complaining also of neck and back pain. He was then found fit for work but has not seemingly made any serious attempt at returning to work since.
Reports have now been received from the specialists to whom the person was referred. Both are positive that there is no condition, psychiatric or physical, preventing the person from working. There is no reason to disagree with the specialists’ opinion and the person is considered fit for any work compatible with his age and education.
[8] Refer T-Documents T14.
In a DSS Treating Doctor’s Report completed by Dr Alexeyeff on 22 July 1994, Dr Alexeyeff made two psychological diagnoses in relation to Mr Petrovic but no diagnosis relating to any back or neck conditions.[9] The doctor stated that Mr Petrovic was improving and his prognosis for both conditions was that the doctor expected resolution of them within six months.
[9] Refer T-Documents T16.
On 19 September 1996, Dr Anthony Lo from Collingwood Acupuncture and Medical Clinic issued a report stating that Mr Petrovic was suffering from “significant back pain for several years and finds it difficult to maintain a position for more than 10 mins per time”. Dr Lo also stated, “He is undergoing acupuncture treatment at present and would require to be on ongoing sickness benefits for 6-12 months”.[10]
[10] Refer T-Documents T17.
On about 13 August 1996, Dr Allan J Bond of Fitzroy Central Clinic completed a DSS Treating Doctor’s Report in relation to Mr Petrovic. Dr Bond recorded the following diagnoses, “1. Depression; 2. Chronic Migraines” and stating that “collectively these conditions render patient unsuitable for most work”. There were no diagnoses recorded of any physical conditions. Dr Bond stated that Mr Petrovic had attended the practice for approximately eight years. Dr Bond’s opinion was that Mr Petrovic was likely to be able to work part-time in 12 to 24 months.[11]
[11] Refer T-Documents T18.
Dr Glenn Howlett, a Government-appointed Examining Medical Officer completed a DSS Australian Government Health Service Medical Officer Report on 23 September 1996. Dr Howlett assessed Mr Petrovic at that time as being a “vague historian” and that his current problems including, “Lower back pain: 10 yr history. Describes recent exacerbation of pain. No recent injury. [Motor vehicle accident] 1981, & again 1985. Unable to maintain fixed postures. XRay – apparently – NAD (didn’t bring). [Treatment] analgesics. Acupuncture with Dr Lo”. Upon physical examination, nil or minor restriction was recorded by Dr Howlett with respect to Mr Petrovic’s thoracolumbar spine and there were no symptoms of referred limb pain or nerve root compression (e.g. sciatic pain). Dr Howlett assessed Mr Petrovic’s low back pain condition as static and considered there to be 0% impairment under Table 5.2 that applied at that time. Dr Howlett assessed Mr Petrovic as medically fit for his usual work or for work for which he is skilled or for other work for greater than 30 hours per week.
Dr Howlett general assessment of Mr Petrovic in 1996 was as follows:[12]
The client last worked as a driver in 1990, leaving this position because of a disagreement with his employer. He describes a ten year history of back pain, getting worse recently but without any obvious precipitant. He said he had an X-ray which did not demonstrate a cause for his pain. He is having acupuncture and taking tablets. Mr Petrovic also complains for depressive symptoms over the past ten years. He says he is taking tablets but does not know what they are or how long he had been taking them. He has headaches of variable severity and duration but does not usually take medication for these.
Clinically there is little evidence of medical problem of sufficient severity to prevent Mr Petrovic working on a full-time basis in open employment. I note this was the opinion of Drs. Kemp and Rose two years ago: there would appear to be little reason to revise their assessments at this stage. The client could medically sustain full-time work as a drive or as a cleaner, for example, without heavy lifting or heavy pushing of pulling.
[12] Refer T-Documents T19.
On 14 July 2000, Dr Allan J Bond, General Practitioner, of My Doctor - Fitzroy completed a Centrelink Treating Doctor’s Report in relation to Mr Petrovic.[13] Dr Bond recorded the following diagnoses, “Chronic Low Back Pains”. Dr Bond described Mr Petrovic’s clinical features as “Chronic Back Pain & associated [right-sided] sciatica” with “date of onset” recorded as “2/1990”. Dr Bond described the treatment as “analgesic, Physio. Refer Rheumatol ST”.
[13] Refer T-Documents T20.
On 26 September 2013, Dr Geoffrey Tymms, Orthopaedic Surgeon and Foot and Ankle Specialist, in a letter to Epworth Richmond Emergency Department reported in relation to Mr Petrovic’s foot and heel, which I will refer to in more detail below, and also reported that, Mr Petrovic “is attending the gym regularly”.
On 9 February 2015, Dr Zoltan Vilagosh, General Practitioner, completed a Centrelink Treating Doctor’s Report in relation to Mr Petrovic.[14] Dr Vilagosh confirmed the following diagnoses, “Chronic Lower Back Pain. On(?) Degenerative changes out(?). Anxiety”. Dr Vilagosh described Mr Petrovic’s current treatment as including medication (Mobic 200mg and Lexotan 200mg) and self-directed exercises. Past treatment was recorded as medication (Panadeine Forte from 2001 to 2013 intermittently; Endone from 2013; Celebrex 200mg from 2002 to 2009 and Capadex in 2002. Dr Vilagosh stated that neither he nor any other doctor from his practice had referred Mr Petrovic to a specialist. Future/planned treatment was stated as “Ongoing supportive measures. Self-directed exercises. Analgesic/NSAIDS/Lexotan”. Current symptoms were described as “Pain lumbar spine, especially on prolonged sitting or standing”. The impact on Mr Petrovic’s ability to function was described by Dr Vilagosh as follows, “Poor mobility/ poor motivation/ pain on moving” and that within the two years to follow that this impact was expected to fluctuate.
[14] Refer T-Documents T24.
On 19 May 2015, Mr Sam Patten, Orthopaedic Surgeon, in a letter to Mr Petrovic’s treating general practitioner stated, “Mr Petrovic has widespread osteoarthritis throughout the rest of his body and requires ongoing physiotherapy and hydrotherapy to maintain his ongoing function”.[15]
[15] The Secretary lodged a further set of documents with the Tribunal on 27 June 2017 pursuant to its obligations under s 71 of the Administrative Appeals Tribunal Act 1975 (Cth) (Supplementary T-Documents). Refer Supplementary T-Documents ST14.
On 17 September 2015, a face-to-face Job Capacity Assessment (JCA) was conducted of Mr Petrovic by an accredited exercise physiologist and an exercise physiologist (JCA Assessors). The JCA Assessors issued a report on 1 October 2015 (JCA Report). The “interview requirements” in the JCA Report were stated as follows:
Please consider the customers frequent overseas travel
6 trips since 14/02/2012 latest being 25/12/2014 to 02/02/2015 and address implications within your assessment…
In relation to Mr Petrovic’s spinal condition, the JCA Assessors made the following assessment as set out in the JCA Report:
(a)Mr Petrovic’s spinal condition was fully diagnosed, treated and stabilised given that it had been assessed by a specialist and he had attempted a range of treatment options;
(b)there was a mild functional impact on activities involving spinal function, specifically, the JCA Assessors were satisfied that Mr Petrovic had some difficulty “bending to knee level and straightening up again without difficulty”. Mr Petrovic reported at the JCA Assessment that whilst he was able to bend to pick up some items from knee height or the floor, he experienced pain when doing so, as well as having difficulty rising back into a standing position. Accordingly, the JCA Assessors’ recommended impairment for the spinal condition was five points under Impairment Table 4;
(c)the JCA Assessors stated, “Mr Petrovic suffers from pain which impacts upon his ability to sit or stand for long periods of time, as well as his ability to bend and to engage in physically demanding tasks. It is believed that his conditions will impact upon his ability to sustain long hours of employment over time”. Suitable work was listed as “Light semi-skilled”.
In the JCA Report, it was stated:
…
Employment History / Goals:
Mr Petrovic has not worked over the past 20 years. Prior to this time he worked in the building and hospitality industry (including as a metal turner and painter).
It is indicated that Mr Petrovic does not require assistance with public transport.
Barriers & Interventions
[Barriers to be addressed: Endurance limitations; Physical limitations restricting type of work; accommodation issues.
Interventions that were identified for this client: Vocational rehabilitation; Vocational assessment/coaching; accommodation services
Referrals – recommendation type: Employment services – DES – Disability Management Services]
Additional Comments:
Mr Petrovic attended the assessment with his daughter. He is residing with his daughter in his son’s apartment, but is going to need to find alternative accommodation when the selling of the apartment is finalised in the near future. Mr Petrovic has two adult children. He has a current driver’s licence, but is only able to drive a maximum of one hour at a time due to the impact of his medical conditions.
…
The client’s personal factors have a Moderate impact on their ability to work, obtain work or look for work.
…
On 5 October 2015, Centrelink made a decision to cancel Mr Petrovic’s payments under s 80 of the Administration Act.
On 27 October 2015, Mr Petrovic telephoned Centrelink to request an internal review. The file note of this conversation as recorded by the Centrelink representative was that Mr Petrovic said that he was in daily pain and had days when he found it difficult to get out of bed due to the pain.
The Tribunal was provided with a detailed medical report by Dr Robyn Horsley OAM, Occupational Physician, who first examined Mr Petrovic on the 6 March 2017.[16] Dr Horsley examined Mr Petrovic approximately 17 months after his DSP payments were cancelled.
[16] Refer Supplementary T-Documents ST24.
Dr Horsley describes Mr Petrovic’s tolerances on page 5 of her report. They were not expressed as tolerances that were present as at the Qualification Date.
Dr Horsley referred to an X-ray taken of Mr Petrovic’s lumbar spine on 2 February 2012. The doctor described the outcome of this X-ray as follows:
Mild degenerative thoracolumbar spondylosis with intervertebral disc height loss and endplate spurring of the mid to lower thoracic spine as well as the lower lumbar spine. Moderate bilateral facet arthropathy of L4/5 and L5/S1. No spondylolisthesis.
Dr Horsley also referred to an X-ray that was taken of the lumber spine on 25 August 2015. The doctor described the outcome of this X-ray as follows:
Mild thoracolumbar scoliosis convex to the right. Both SI joints are mildly degenerative. Intervertebral disc heights are reasonably well maintained. There is evidence of a left total hip replacement. At least moderate L5/S1 facet arthropathy, more pronounced on the right.
A further job capacity assessment was undertaken on 20 April 2017 following a file assessment only by a registered psychologist (assisted by an accredited exercise physiologist and qualified social worker) but given that this took place approximately 18 months after the Qualification Date, the Tribunal has not taken into account this assessment for the purposes of determining the present application.[17]
[17] Refer Supplementary T-Documents ST25.
The Tribunal is satisfied, on the evidence, that Mr Petrovic’s back and neck condition was fully diagnosed, fully treated and fully stabilised and was likely to have persisted for two years following the Qualification Date. Accordingly, the Tribunal concludes that this condition was permanent. As this condition was permanent, the Tribunal must assess whether it caused impairment to Mr Petrovic’s spinal function as at the Qualification Date, in order to determine what rating (if any) should be assigned to it under Table 4 of the Impairment Tables.
The Introduction to Table 4 provides that “Table 4 is to be used where the person has a permanent condition resulting in functional impairment when performing activities involving spinal function, that is, bending or turning the back, trunk or neck”. The Introduction to Table 4 directs that self-report of symptoms alone is insufficient and there must be corroborating evidence of the person’s impairment. This principle is consistent with the requirements of subsection 8(1) of the Determination – see paragraph [11].
The descriptors for a five-point rating to apply under Table 4 are as follows:
There is a mild functional impact of activities involving the spinal function.
(1)The person has some difficulty in:
a. activities over head height (e.g. activities requiring the person to look upwards); or
b. bending to knee level and straightening up again without difficulty; or
c. turning their trunk or moving their head (e.g. to look to the sides or upwards).
Based on the evidence referrable to Mr Petrovic’s condition as at the Qualification Date, in particular, the indication by Mr Petrovic that he was able to bend over and pick up a light object from knee height, albeit that it caused him pain, satisfies the Tribunal that a five-point rating should be assigned to Mr Petrovic for impairment to his spinal function at that time.
The Tribunal does not consider that the higher rating of ten points should be assigned under Table 4 because the evidence did not support a conclusion that the descriptor, indicating a moderate impairment to Mr Petrovic’s spinal function, applied. For instance, Mr Petrovic’s own evidence was that despite experiencing pain, he was able to bend over to pick up a light object from knee height. There was no evidence indicating that Mr Petrovic was unable to sit in or drive a car for at least 30 minutes, noting that he gave evidence to the AAT1 that he was able to drive for up to an hour. There was also an absence of evidence before the Tribunal that Mr Petrovic had an inability to sustain overhead activities or had difficulty moving his head in all directions or that he needed assistance to get up out of a chair. At the hearing, the Tribunal witnessed Mr Petrovic moving his head in different directions and getting up out of a chair. The evidence suggested that despite the back and neck condition, Mr Petrovic was still able to remain mobile in that he attended the gym on a regular basis to engage in low impact activities, including on a cross-training, or to go walking for extended distances or to engage in overseas travel.
The Tribunal finds that as at 8 October 2015, Mr Petrovic had a mild functional impairment to his spinal function attracting a five-point rating under Table 4 of the Impairment Tables. This finding accords with the contentions by both parties that five points should be assigned to Mr Petrovic in relation to this impairment.
Right heel (right foot) condition and bilateral hip conditions – lower limb impairment under Table 3
Approach when multiple conditions causing single impairment under any one table
Section 10(5) of the Determination provides that:
Where two or more conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.
Section 10(6) of the Determination provides that:
Where a common or combined impairment resulting from two or more conditions is assessed in accordance with subsection 10(5), it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once.
Right heel (right foot) condition
Mr Petrovic’s evidence was that in March 2013 he fractured his right heel when he fell off a ladder trying to climb onto a balcony after locking himself out of the house. The Secretary did not dispute that this right heel (right foot) condition was fully diagnosed, treated and stabilised as at the Qualification Date and therefore, a permanent condition to which an impairment rating may be assigned.
A letter by Dr Tymms dated 21 March 2013 records that a X-ray and CT scan at the time of the accident revealed a “comminuted intraarticular fracture of the right calcaneum with significant depression of the articular surfaces”. The doctor observed that the swelling “was not too bad”. The doctor recorded that he would undertake a “minimally invasive internal fixation for his calcaneum”.
Dr Tymms reviewed Mr Petrovic three months following the internal fixation procedure on 20 June 2013 and reported, “All is recovering very well with no problems. X-ray looks good with good bony union”.
In a letter dated 11 July 2013, Dr Julien Freitag, Sport and Exercise Medicine Registrar, Lifecare Prahran Sports Medicine, following examination of Mr Petrovic in relation to his hip, stated that:
…
In regards to [Mr Petrovic’s] right calcaneal fracture he has made a slow recovery after successful open reduction and internal fixation. He describes persistent swelling and also a burning sensation. I am concerned that it may be developing a chronic regional pain syndrome and I have therefore advised him to slowly ween off the crutches and have encouraged him to weight bear as tolerated. I have also commenced him on a course of Endep for a neuropathic component of discomfort (5mg nocte).
…
Dr Tymms reviewed Mr Petrovic six months post-surgery and stated that all was recovering well for Mr Petrovic and, “He has been gradually improving. His leg is getting stronger. He is attending the gym regularly. He has some mild discomfort but no severe pain”. The doctor reviewed Mr Petrovic one year post-surgery and noted some mild swelling and irritation from the plate on the lateral calcaneum and that overall, he was recovering well. A further procedure was performed by Dr Tymms to remove the plates and screws from his foot. Most of them were removed although he left one screw in situ in the posterior calcaneal body. The doctor stated in his report, “This was buried deep in the bone and was unlikely to cause any problems to the patient”.
On 9 February 2015, Dr Vilagosh, when asked to list any medical conditions that Mr Petrovic had at that time which were “generally well managed and that caused minimal or limited impact on ability to function” listed right heel pain. One week after the cancellation of Mr Petrovic’s DSP, in a letter dated 15 October 2015, Dr Vilagosh stated that Mr Petrovic had persistent right heel and foot pain and swelling that limited his walking and prolonged standing. He referred Mr Petrovic for an X-ray. On 16 October 2015 the X-ray report recorded that Mr Petrovic’s subtalar joint was relatively preserved without significant degenerative change. The X-ray revealed a small ossified body along the lateral aspect of the calcaneal body and mild disuse osteopenia. There were no calcified or ossified intra articular body found and no fracture remained.
In a further letter by Dr Vilagosh on 20 October 2015 he referred to the X-ray findings and stated that the ongoing pain and swelling of the area of Mr Petrovic’s heel and foot limited his walking and made prolonged standing “very uncomfortable”.
In the JCA Report dated 1 October 2015, it was recorded that Mr Petrovic told the JCA Assessors that he required surgery for his condition in April 2013 which then required a lengthy recover time, and that he still experienced pins and needles and pain.
In the AAT1 decision dated 24 February 2106, Mr Petrovic’s evidence was summarised by the AAT1 as follows:[18]
[Mr Petrovic] tries to keep himself fit. He walks up to 2 kilometres in the morning and again when he can in the evening. He attends a gym and uses low impact machines such as the cross-trainer. He cannot use a treadmill. … He cannot stand in one position due to increasing severity of pain but must constantly shift his weight and change position. It is the same when sitting. He can drive for up to an hour. He could drive for a longer period if he took more painkillers but that is not recommended. He presently takes Mobic….He wears slip-on shoes and no socks as it is very painful to bend to put on footwear…
…he suffers from pain and pins and needles in the right heel… This also causes pain when he walks, but he pushes himself to keep active. He has trouble with stairs. The foot also swells during the course of the day, to a point where he cannot keep his shoe on. He needs to elevate the foot several times a day, this alleviates the swelling…
[18] Refer T-Documents T3.
In a letter dated 24 May 2016, Dr Tymms referred to a further examination of Mr Petrovic at that time and reports:
[Mr Petrovic] states his right hind foot is also giving him some ongoing trouble. He had a fracture of his calcaneum in 2013 treated with internal fixation and then subsequent removal of metal. He states he has some persisting soreness and swelling in the foot for prolonged statement. There is some pins and needles in the foot at times. He is unable to stand or walk for prolonged periods because of this.
Examination today shows excellent alignment. There was some mild tenderness over the lateral aspect of the subtalar joint with some restricted movement of up to 50% of normal range. There was no current x-rays with him.
I suspect [Mr Petrovic] may have some degree of post traumatic degenerative changes in the subtalar joint following a calcaneal fracture. This may tend to cause some persisting soreness and affect mobility. This may affect his ability to stand and do any manual work. It certainly would not preclude him from doing work involving seated duties. The condition certainly would be stable at this time following his injury.
Bilateral hip conditions
On 11 July 2013, Dr Freitag saw Mr Petrovic in relation to a condition which the doctor described as left hip osteoarthritis. In the more recent report by Dr Horsley dated 6 March 2017, Dr Horsley reports that Mr Petrovic recalled “injuring his left hip in a skiing accident about 10 years ago. He recalls falling and tearing some ligaments in the left hip region”.
In Dr Freitag’s report dated 11 July 2013, the doctor said that due to the increased load through Mr Petrovic’s left hip following the right heel fracture, Mr Petrovic had noted recurrence in his left hip discomfort. The doctor observed a significantly reduced range of motion. The doctor gave Mr Petrovic an autologous PRP (blood fusion) injection into the left hip.
On 22 August 2014, an MRI was performed of Mr Petrovic’s left hip and the MRI report stated as follows:[19]
Moderate effusion and synovitis.
Cam deformity with cuff of the femoral head-neck junction osteophytes, extensive degenerative tearing of the labrum and high grade anterosuperior and superolateral fermoro-acetabular chondral wear. Moderate posterior acetabular chondral wear. Areas of femoral and acetabular osseous oedema.
[19] Refer Supplementary T-Documents ST10.
On 9 February 2015, Dr Valigosh confirmed a diagnosis of “(?) osteoarthritis left hip”. It was indicated that this diagnosis was supported by Mr Patten, Orthopaedic Surgeon. Dr Valigosh listed Mr Petrovic’s current symptoms as “pain on walking/standing”. Dr Valigosh noted the past treatment of this condition, being the PRP injection, acupuncture and an arthroscope. He noted the current treatment being analgesics and that Mr Petrovic had attended hydrotherapy, massage and physiotherapy. Dr Valigosh noted that future treatment would be dependent on recovery from the hip surgery. Dr Valigosh stated that he considered the effect of Mr Petrovic’s left hip condition to be uncertain within two years and that he expected this condition to impact on Mr Petrovic’s ability to function for more than two years.
Mr Petrovic had a left hip replacement on 20 February 2015 performed by Mr Patten.[20] In his report of the same date, Mr Patten stated that Mr Petrovic was making good early progress. Mr Patten reviewed Mr Petrovic four weeks post-surgery and in a report dated 24 March 2015, Mr Patten stated that Mr Petrovic was “doing very well” and that “The scar has healed and he is moving around comfortably. He can get rid of the stick from now on and I would like him to gradually increase his activities with light exercise in the gymnasium, and some gentle swimming”.[21] On 19 May 2015, Mr Patten reported that for the initial three months following the hip replacement surgery, Mr Petrovic was unable to walk without using crutches while recovering from the operation.[22] Mr Patten stated, “He has had a successful recovery and is doing very well” and “Mr Petrovic has widespread osteoarthritis throughout the rest of his body and requires ongoing physiotherapy and hydrotherapy to maintain his ongoing function”.
[20] Refer Supplementary T-Documents ST12.
[21] Refer Supplementary T-Documents ST13.
[22] Refer Supplementary T-Documents ST14.
In the JCA Report dated 1 October 2015, the JCA Assessors reported that Mr Petrovic told them that he could walk slowly for approximately 15 to 20 minutes, and that he could climb one flight of stairs. It was reported that Mr Petrovic told them he was able to stand but that he experienced pain while doing so and that he did not use public transport but thought that he would be able to, if he was required to do so.
Following the Qualification Date:
(a)in the AAT1 decision, handed down in February 2016, it was recorded that Mr Petrovic’s left hip surgery was “successful” but that “is now developing more discomfort in the right hip”;
(b)in a letter dated 16 March 2016, Mr Vilagosh stated that Mr Petrovic had “bilateral hip pain with associated hip degeneration”;
(c)in Dr Horsley’s report dated 6 March 2017, Dr Horsley stated that Mr Petrovic “has had a good response to the surgery”; he does not experience any pain; and had a reduction in range of motion. Noting that this report was made approximately 17 months after the Qualification Date, in relation to the right hip, Dr Horsley stated:
Mr Petrovic has been experiencing however, increasing right hip pain. Mr Patten has suggested that he stall right hip surgery for as long as possible. At this stage, Mr Petrovic experiences more right hip disability than left hip disability. On the right side, he experiences pain with activity. It can rise up to a level of 8 out of 10 if he is able to walk for any prolonged period of time, or if he rises up hills repetitively. The discomfort in the right hip radiates into the right groin and into the mid-thigh occasionally. He has no pain in the right hip at rest.
(d)Dr Horsley also made reference to an earlier X-ray of Mr Petrovic’s left and right hips on 2 February 2012 and MRI on his left hip on 6 February 2012. Dr Horsley reported the X-ray as concluding:
No focal osseous lesion. Sacroiliac joints are normal. Mild right and moderate left osteoarthritis of the hip with bilateral femoral head over coverage. Asphericity of the left anterolateral femoral head neck junction compatible with a CAM type femoroacetabular impingement with a 6mm calcified body demonstrated laterally. Further focus of calcification measuring 20mm within the left adductor muscles is likely the consequence of previous trauma. Pubic symphysis and sacroiliac joints are normal.
Dr Horsley reported the MRI as concluding:
CAM type femoroacetablular impingement is associated with full thickness chondral defect of the superolateral aspect of the femoral head as well as complex chronic degeneration and tearing of the acetabular labrum. This includes the posteroinferior acetabular labrum with also full thickness chondral defect of the posterosuperior acetabular rim, compatible with the previous radiographic diagnosis of femoral head over coverage and therefore in keeping with contrecoup injuries. Mild trochanteric bursitis and gluteus minimum tendonosis. Mild conjoint and semimembranosus origin tendonosis. A likely direct inguinal hernia.
At the hearing before this Tribunal, Dr Horsley gave evidence that the CAM deformity referred to in the reports was an underlying congenital defect such that the head of the femur is not perfectly shaped and this may cause an alteration over time due to increase “wear and tear”. The doctor explained the degenerative change was osteoarthritis.
(e)At the hearing, Mr Petrovic said that his hips were a “long time injury. Couldn’t turn or move. Hip replacement, left hip – better now but right hip getting worse and worse”.
In Centrelink’s Treating Doctor’s Report dated 9 February 2015, Dr Vilagosh did not list as a condition or make any other reference to Mr Petrovic’s right hip condition.
In paragraph [42] of the Applicant’s Statement of Facts, Issues and Contentions lodged with Tribunal by Mr Petrovic’s representatives on 6 June 2017 (Mr Petrovic’s SFIC), it was contended Mr Petrovic suffers from osteoarthritis of the right hip and that as at the cancellation date, there was no indication for surgery of the right hip and condition was treated conservatively in accordance with “the doctor’s” recommendation.
In the Secretary’s Statement of Facts, Issues and Contentions lodged with the Tribunal on 27 June 2017 (Secretary’s SFIC), it was contended that the left hip condition was fully diagnosed, treated and stabilised. There was no reference to Mr Petrovic’s right hip condition.
On the strength of 2012 X-ray and the 2012 and 2014 MRI, the Tribunal is satisfied that Mr Petrovic’s right and left hip conditions were fully diagnosed as at the Qualification Date.
The left hip replacement surgery took place in 2013 and there was no dispute between the parties that it was successful. Leading up to the Qualification Date, Mr Petrovic’s doctors had not recommended any other treatment for the left hip. Accordingly, the Tribunal is satisfied from the medical evidence that Mr Petrovic’s left hip condition was fully stabilised and treated as at the Qualification Date.
Mr Petrovic gave oral evidence at the hearing that his right hip condition was getting “worse and worse”. It was contended in Mr Petrovic’s SFIC, that there was no indication of upcoming surgery to the right hip. However, this was not consistent with other evidence (see Dr Horsley’s report) that Mr Petrovic was being advised to hold off on a right hip replacement procedure for as long as possible. Right hip replacement surgery, was, in fact, recommended but at some later time in the future. However, the legislation contemplates a two-year horizon and the Tribunal accepts there was no evidence suggesting that surgery on the right hip was contemplated within the two years to follow the Qualification Date. This being the case, the Tribunal is satisfied that the right hip condition was fully stabilised and fully treated as at the Qualification Date.
In conclusion, the Tribunal finds that Mr Petrovic’s right heel (right foot) and bilateral hip conditions were permanent, as at the Qualification Date. Accordingly, the Tribunal is required to assign a rating under Table 3 of the Impairment Tables for the overall impairment to Mr Petrovic’s lower limbs, arising from those three permanent conditions being his right heel (right foot) and bilateral hip conditions.
The parties were in dispute about what rating should be assigned. Mr Petrovic contended that a 10-point rating applied. The Secretary contended that a five-point rating applied.
A 10-point rating under Table 3 will apply where there is a moderate level of functional impact on activities using lower limbs. The descriptor for this rating is specified in the 10-point row of Table 3 as follows:
1)At least one of the following applies:
a)the person is unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities; or
b)the person is unable to use stairs or steps without assistance; or
c)the person is unable to stand for more than 5 minutes; and
2)The person is able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket.
3)The impairment rating level includes a person who can:
a) move around independently using a wheelchair and can independently transfer to and from a wheelchair (e.g. can use a wheelchair accessible toilet independently); or
b) move around independently using walking aids (e.g. quad stick, crutches or walking frame).
Note: The person may require additional time and effort to move around a workplace, may need to use disabled access entries, lifts and toilets, and may not be able to access some areas of a workplace or training facility.
A five-point rating under Table 3 will apply where there is a mild level of functional impact on activities using lower limbs. The descriptor for this rating is specified in the five-point row of Table 3 as follows:
There is a mild functional impact on activities using lower limbs.
1) At least one of the following applies:
a)the person has some difficulty walking to local facilities (e.g. shops or bus-stop); or
b)the person has some difficulty walking around a shopping mall or supermarket without a rest; or
c)the person has some difficulty climbing stairs; and
2) At least one of the following applies:
a)the person is unable to stand for more than 10 minutes; or
b)the person can mobilise effectively but needs to use a lower limb prosthesis or a walking stick.
It was contended on Mr Petrovic’s behalf that he had a moderate functional impact to his lower limbs (for which 10 points should be assigned) and sought to rely upon the medical evidence of Dr Horsley. As already mentioned, there are significant limitations as to what weight (if any) the Tribunal may place on this evidence, as Dr Horsley did not examine Mr Petrovic until 17 months after the Qualification Date and importantly, for the present exercise of assigning a rating under Table 3, was unable to corroborate Mr Petrovic’s self-reported lower limb symptoms or limitations as at the Qualification Date.
It was suggested that Mr Petrovic’s level of impairment did not significantly change between the Qualification Date and when Dr Horsley examined Mr Petrovic and that the Tribunal should except Dr Horsley’s evidence as being likely to apply retrospectively. However, the Tribunal does not accept that there was no significant change in his lower limb impairment. Mr Petrovic said himself at the hearing before this Tribunal that his right hip had become “worse and worse”. Dr Horsley reported that Mr Petrovic’s functional tolerances had declined.
Mr Petrovic also sought to rely on other medical evidence which has been referenced earlier in these Reasons for Decision and has been considered by this Tribunal in determining an appropriate rating under Table 3.[23] Mr Petrovic contended that he meets the descriptors in paragraphs 1(a), (b) and (c) in the 10-point rating row in Table 3.
[23] Refer paragraph [46], [49] and [59] of Mr Petrovic’s SFIC.
The Secretary contended that a five-point rating should be assigned under Table 3.[24] The Secretary accepted that Mr Petrovic’s lower limb conditions, particularly the right heel condition, impacted on Mr Petrovic’s ability to stand, walk and his mobility as at the Qualification Date, and that the degree of that impact was mild.
[24] Refer to the Secretary’s SFIC at paragraph [4.30].
The Tribunal will start with an assessment of whether the descriptor for the 10-point rating under Table 3 applied to Mr Petrovic as at the Qualification Date. This will require that both of the descriptors in paragraphs (1) and (2) applied to Mr Petrovic as at the Qualification Date.
Paragraph (1) will apply to Mr Petrovic if any one of subparagraphs (1)(a), (b) or (c) applied to him as at the Qualification Date.
Paragraph (1)(a) applies if, “the person is unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities”. Mr Petrovic gave evidence to the AAT1 that he could walk for up to two kilometres in the morning and again when he could in the evening. The hearing before this Tribunal Mr Petrovic denied telling the AAT1 that he could walk for two kilometres. I do not accept this denial. I find that Mr Petrovic was walking significant distances as at the Qualification Date accepting that he was likely to have experienced some pain when doing so. Mr Petrovic told the JCA Assessor in October 2015 that he could walk slowly for 15 to 20 minutes. Even if Mr Petrovic was limited to walking on 15 to 20 minutes slowly, paragraph (1)(a) would not apply to him as the Tribunal is satisfied that by being able to walk for this length of time, albeit slowly, Mr Petrovic was able to walk “far” outside of his home.
Paragraph (1)(b) applies if, “The person is unable to use stairs or steps without assistance”. The term “assistance” is not defined in the Impairment Determination or the Act.
Interpretation of the word “assistance” in Table 3 of the Impairment Tables
Mr Petrovic’s evidence was that at the Qualification Date he was unable to use stairs with the assistance of a hand rail. Mr Petrovic contended that this was sufficient for a finding to be made that paragraph (1)(b) applied to him and that the word “assistance” in that phrase included assistance in the form of hand rails on the stairs.
The Secretary disagreed with this contention. The Secretary referred the Tribunal to the decision in Re Summers and Secretary, Department of Social Security [2014] AATA 165 (Summers). In this decision, the Tribunal accepted that the reference to “assistance” in the Impairment Tables meant a reference to assistance by a person rather than by the use of an aid such as a shopping trolley or walking stick or hand rail, and that it would be superfluous to mention “aids, equipment or assistive technology” in the descriptors, because the rule in s 9 of the Impairment Tables Determination required them to be taken into account. Section 9 provides that a person’s impairment is to be assessed when the person is using or wearing any aids, equipment or assistive technology that the person has and usually uses.
Both parties filed submissions in relation to the interpretation of the word “assistance” in Table 3 (Supplementary Submissions).[25]
[25] The Secretary’s Supplementary Submissions were lodged with the Tribunal on 14 September 2017. Mr Petrovic’s Supplementary Submissions were lodged with the Tribunal on 25 September 2017.
The Secretary contended that its interpretation of the word “assistance” was reinforced in government policy as expressed in the Guide to Social Security Law (Guide) at 3.6.3.30 and 3.6.3.05 as follows:
[3.6.3.30]The 10- and 20- point ratings in Table 3 use the term “assistance”. Assistance means assistance from another person, rather than any aids or equipment the person has and usually use (see 3.6.3.05 (E) Use of aids, equipment & assistive technology).
[3.6.3.05] Use of the term “assistance” within the Tables
The term assistance is used in numerous descriptors within various Impairment Tables. In all of these cases assistance means from another person, rather than from any aids, equipment or assistive technology the person had and usually uses.
Given that a person’s impairment is to be assessed when the person is using or wearing any aids, equipment or assistive technology they have an usually use, any further assistance would be from another person.
The Secretary contended the Tribunal should apply the Guide unless it is unlawful, or tends to produce an unjust result.[26]
[26] Refer Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60.
The Secretary contended that the interpretation of the word “assistance” in Summers was specifically considered and adopted in the case of Re Secretary, Department of Social Services and Davidson [2015] AATA 533 (Davidson). The applicant in Davidson needed to hold onto a rail when ascending or descending stairs. The Secretary also referred to other cases before the Tribunal adopting its interpretation of “assistance” including Re O’Bryan and Secretary, Department of Social Services [2014] AATA 590; Re Spry and Secretary, Department of Social Servcies and Anor [2014] AATA 722; and Re Secretary, Department of Social Services and Seyfang [2016] AATA 243. The Secretary highlighted that the Tribunal Members in each of those cases held that the reference to “assistance” meant a reference to personal assistance.
In Mr Petrovic’s Supplementary Submissions, it was contended that the Guide had no useful role to play in the Tribunal’s task of interpreting a legislative provision and that the Secretary had oversimplified the ratio in Re Drake. It was highlighted to the Tribunal that the Full Court of the Federal Court in Re Drake had upheld the appeal on the ground that the Tribunal at first instance had abrogated its function by deferring to ministerial policy without making an independent assessment and determination of the matter before it. It was contended that, “Simply deciding the matter in accordance with ministerial policy without regard to whether the more appropriate outcome might have been reached was held by the Full Court to be an error of law”.
The representatives for Mr Petrovic contended that the ratio in Re Drake was more accurately portrayed in the following extract (highlighted in bold) from the majority judgment in Bowen CJ and Dean J:
[69] Ordinarily …an administrative officer charged with the exercise of discretionary power will be entitled, in the absence of specifically defined criteria or considerations, to take into account government policy.
[70] …In a matter such as the present where it was permissible for the decision-maker to take relevant government policy into account in making his decision, but where the Tribunal is not under a statutory duty to regard itself as being bound by that policy, the Tribunal is entitled to treat such government policy as a relevant factor in the determination of an application for review of that decision. It would be contrary to common sense to preclude the Tribunal, in its review of a decision, from paying any regard to what was a relevant and proper factor in the making of the decision itself. If the original decision-maker has properly paid regard to some general government policy in reaching his decision, the existence of that policy will plainly be a relevant fact for the Tribunal to take into account in reviewing the decision. On the other hand, the Tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision made was, on the material before the Tribunal, the correct or preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be.
It was contended that this extract clarified three matters, namely, that government policy was relevant to:
(a)the exercise of a discretionary power;
(b)in the absence of specifically defined statutory criteria;
(c)but the Tribunal was not entitled to abdicate its function of determining whether the decision made was the correct or preferable one in favour of government policy.
It was contended by Mr Petrovic’s representatives as follows:[27]
The task of interpreting a legislative provision should not be conflated with that of exercising a discretion. They are two different tasks. The present case is about the proper application of certain defined criteria to a particular person’s circumstances at a relevant point in time. It is not a matter of discretion. Whilst government policy might be relevant to the exercise of a discretion (such as the decision of whether or not to deport the applicant in Re Drake) it is not apt to justify a derogation from established principles of statutory interpretation.
[27] Refer paragraph [31] of Mr Petrovic’s Supplementary Submissions.
As to the principles of statutory interpretation, Mr Petrovic’s representatives contended that the cardinal rule of statutory interpretation was that where the language of an Act is clear and explicit, effect must be given to the language, whatever may be the consequences, for the words of the statute speak the intention of the legislature. It was contended that paraphrasing statutory language, whether found in parliamentary material, policy guides, or other extrinsic material is apt to mislead from the intention of parliament if attention strays from the statutory text. The Tribunal was referred to paragraph [2] of the decision of the Victorian Court of Appeal in DPP v Walters (2015) 49 VR 356 as follows:
[2] Interpreting statutory provisions requires consideration of the legislative context and – where relevant – the legislative history. But, as the High Court has repeatedly emphasised, the task of statutory interpretation begins, and ends, with the words which Parliament has used. For it is through the statutory text that the legislature expresses, and communicates, its intention.
The New Shorter Oxford English Dictionary defines “assistance” as:
1 the action of helping; help, aid, support;
2 a helper; a body of helpers;
3. persons present; bystanders;
4 presence, attendance.
Mr Petrovic’s representatives contended that “assistance” was defined in The Macquarie Dictionary Online as, “noun the act of assisting; help, aid” and “assist” is defined as, “verb to give support, help, or aid to in some undertaking or effort, or in time of distress”. It was contended that the meaning of “assistance” was very broad and if it was allowed to be given its naturally broad meeting, that the ordinary scope of the word extended to a person being unable to climb stairs with the “assistance” of a hand rail. Mr Petrovic contended that the Secretary appeared to be seeking to import the words “from another person” to limit the word “assistance” and set out in its submissions the prerequisites it said applied before words should be read into a statute.
It was not clear to the Tribunal that this is what the Secretary had sought to do. The Tribunal considers that it was open to the Secretary to interpret the references in Table 3 to the word “assistance”, taken in conjunction with s 9 of the Determination, to mean assistance other than assistance in the form of aids, equipment or assistive technology that the person has and usually uses.
It would be rare indeed that any staircase in Australia in these modern times was not flanked on one side or both by a hand rail. When a person ascends or descends from a staircase, it follows then, that a person has (immediately accessible to them) and usually uses a hand rail as an aid to enable them climb or descend the stairs. If the Tribunal is to comply with s 9 of the Determination, it must assess Mr Petrovic’s level of impairment taking into account any use by the person of a hand rail when using stairs. This rule informs the interpretation that the Tribunal should give to word “assistance” in Table 3, i.e. to determine where the edges of the potentially broad scope of that word lie in the context of the legislation within which that word appears.
In the specific circumstances of this case, I consider that this interpretation renders the descriptor consistent with it being a measure of a person with moderate lower limb impairment, namely, that they need another person and not just the hand rail on the stairs to help them make it up or down a set of stairs. I consider that someone who is able to make it up and down stairs, but must seek the use of a hand rail when they do so, is more appropriately considered to have a mild functional impact on activities using the lower limbs, in contrast to either moderate or no functional impact.
Returning to Mr Petrovic, on his own evidence, he said he was unable to climb stairs unless he could use the hand rails. I find that paragraph (1)(b) did not apply to Mr Petrovic as he was able to climb stairs without the assistance of another person or without other assistance that fell outside of the type of assistance as described in s 9 of the Determination.
Meaning of the reference “to stand”
Paragraph (1)(c) applies if, “the person is unable to stand for more than 5 minutes”. Another issue was raised by the parties, in relation to the interpretation of the reference to “to stand” as appearing in this paragraph. The issue was whether it should be interpreted as meaning to stand motionless (referred to by Mr Petrovic’s representatives as static standing), or whether it meant standing with the liberty to shift the person’s weight or to alter the person’s position or posture slightly from time to time.
The Tribunal considers that the correct view is that the reference to “to stand” was not intended to measure a person’s capacity to stand motionless or like a statue but instead would allow for a person to make whatever adjustments were required (provided they remained standing), to make the person more comfortable, just a person will adjust their position, posture and weighting when standing in everyday life to remain comfortable when standing. This is supported by the requirement of subsection 11(3) of the Determination, when determining whether a descriptor applies that involves a person performing an activity, that they can do that activity “normally”. By application of that principle, the Tribunal considers that the reference to “to stand” was not intended to be a reference to static standing.
In the JCA Assessment, the JCA Assessors stated that Mr Petrovic was able to stand, but indicated that he experienced pain whilst doing so. Dr Vilagosh in the Centrelink Treating Doctor’s Report dated 9 February 2015 stated that Mr Petrovic had pain with prolonged standing.[28] Mr Petrovic informed the AAT1 that he could not stand in one position due to increasing severity of pain but must constantly shift his weight and change position. More recently, Dr Horsley observed in her report 17 months after the Qualification Date that Mr Petrovic’s functional tolerances had declined because he was no longer going to the gym as he was unable to do so at concessional price, after his DSP ceased. Dr Horsley reported that Mr Petrovic’s static standing tolerance at this much later point in time was five minutes and (what she described as) his dynamic standing tolerance was 30 minutes.
[28] Refer T-Documents T24/90&93 and T25/102.
Based on this evidence, and noting that even after a reported decline in Mr Petrovic’s functional tolerances, the Tribunal finds that if he was permitted to adjust his weight and posture whilst remaining standing, Mr Petrovic was able to stand for a period of at least 30 minutes. For this reason, the Tribunal finds that paragraph (1)(c) did not apply to Mr Petrovic as at the Qualification Date.
In conclusion, the Tribunal has found that none of subparagraphs (1)(a), (b), or (c) applied to Mr Petrovic as at the Qualification Date. At least one of them needed to apply to Mr Petrovic for the 10-point rating to apply to him. Paragraphs (1) and (2) in the descriptor are cumulative so given this finding, it is not necessary for the Tribunal to consider paragraph (2) or (3), as the descriptor applicable to the 10-point rating did not apply to Mr Petrovic because the requirements of paragraph (1) are not met.
The Tribunal concludes that the 10-point rating did not apply to Mr Petrovic under Table 3.
The Tribunal will consider next whether the five-point rating in Table 3 applied to Mr Petrovic. This will require that both paragraphs (1) and (2) of the descriptor applied to Mr Petrovic as at the Qualification Date.
The Tribunal will start by considering whether any one of paragraphs (1)(a),(b) or (c) applied to Mr Petrovic.
Paragraph (1)(a) applies if, “the person has some difficulty walking to local facilities (e.g. shops or bus-stop)”. I consider that paragraph (1)(a) did not apply to Mr Petrovic as at the Qualification Date. Although I have found that Mr Petrovic was able to walk up to two kilometres twice a day and was sufficiently mobile to be capable of attending and engaging in exercises on a cross trainer at the gym on a regular basis, I accept that it was likely that he had some difficulty in the form of experiencing pain while he was doing so. It is for these reasons that I consider that Mr Petrovic had some difficulty walking to local facilities as at the Qualification Date.
Paragraph (1)(b) applies if, “The person has some difficulty walking around a shopping mall or supermarket without a rest”. Mr Petrovic’s family friend, whom he has known for approximately 20 years, Ms Olga Florenini, provided a statement dated 2 June 2017, and gave evidence at the hearing. She said she had assisted to care for Mr Petrovic including at the time of the Qualification Date and leading up to that date. Ms Florenini said that she did Mr Petrovic’s shopping each week, with Mr Petrovic’s daughter. Ms Florenini said Mr Petrovic was “not really able to carry things” and that “he was really slow” and that it was a hard for him to make a decision about what to buy. Ms Florenini said that it was “better if I do it”. Ms Florenini suggests that Mr Petrovic experienced difficulty with the decision-making process of buying things when shopping, reading the labels or carrying things. The Tribunal is not satisfied from this evidence that Mr Petrovic had some difficulty with walking around a shopping centre or supermarket without a rest, particularly in light of the findings set out in paragraph [88]. Any difficulty seemed to be connected to Mr Petrovic’s psychological state and to a certain extent it seemed that part of the reason why he did not do the shopping, was largely, that Ms Florenini and Mr Petrovic’s daughter had taken over this task from him. The Tribunal considers that it was unnecessary for them to do so on account of any impairment attributable to Mr Petrovic’s conditions, accepting of course that they were only trying to help.
Paragraph (c) applies if, “the person has some difficulty climbing stairs”. Based on the evidence set out in paragraph [106], the Tribunal finds that Mr Petrovic, as at the Qualification Date, had some difficulty climbing stairs and for this reason paragraph (1)(c) applied to him.
The Tribunal concludes that descriptor in paragraph (1) for a five-point rating under Table 3 applied to Mr Petrovic. The Tribunal must now consider whether the descriptor in paragraph (2) also applied to Mr Petrovic.
Paragraph (2) applies if, “the person is unable to stand for more than 10 minutes” or “The person can mobilise effectively but needs to use a lower limb prosthesis or a walking stick”. There was no evidence before the Tribunal to suggest that Mr Petrovic required the use of a prosthesis or a walking stick to mobilise effectively. The evidence before the Tribunal in relation to Mr Petrovic’s ability to stand has been addressed at paragraph [109]. The Tribunal finds that Mr Petrovic was, on the evidence, able to stand for more than 10 minutes as at the Qualification Date.
The Tribunal will consider next the descriptor for a zero-point rating under Table 3. This rating will apply if “there is no functional impact on activities requiring use of the lower limbs”. Paragraph (1) applies if:
(1)The person can:
a.walk without difficulty on a variety of different terrains and at varying speeds; and
b.walk without difficulty around the home and community; and
c.kneel or squat and rise back to a standing position without difficulty; and
d.stand unaided for at least 10 minutes; and
e.use the stairs without difficulty.
The Tribunal does not consider that subparagraphs (1)(a), (b), (c) and (e) applied to Mr Petrovic. The Tribunal finds that a zero-point rating should not be assigned to Mr Petrovic with respect to his lower limb impairment. The Tribunal is satisfied that Mr Petrovic had mild lower limb impairment as at the Qualification Date and the descriptor for a five-point rating is more closely aligned with the limitations on his activities involving the lower limbs, in contrast to the zero-point rating.
In conclusion, the Tribunal finds that five points should be assigned under Table 3 with respect to Mr Petrovic’s lower limb impairment.
Adjustment disorder with mixed anxiety and depressed mood – impairment to mental health function under Table 5
On 14 January 1992, Dr Alexeyeff, General Practitioner, in a Sickness Benefit Medical Certificate recorded a diagnosis of “Chronic stress Acute anxiety and Insomnia” with a prognosis that Mr Petrovic’s incapacity from this condition was not likely to last for more than six months.[29] There was evidence before the Tribunal that Mr Petrovic had an argument with his boss at about this time which resulted in him ceasing his employment.
[29] Refer T-Documents T4.
On 14 April 1992, Dr Alexeyeff issued a further Medical Certificate stating a diagnosis of “Stress Induced Nervous Condition”. The doctor stated the prognosis as the incapacity was not likely to last for more than six months.
On 12 May 1992, on a Sickness Allowance Review form Dr Alexeyeff stated a diagnosis of “Stress induced chronic fatigue” and “Anxiety” since October 1991.[30] He stated that both conditions were temporary, improving and that Mr Petrovic was likely to remain unfit for work for the next “2-3 months”.
[30] Refer T-Documents T6.
On 9 June 1992, Dr Alexeyeff issued a further Medical Certificate stating a diagnosis of “Stress induced breakdown and chronic fatigue” and a prognosis that the impairment was not likely to last for more six months.[31]
[31] Refer T-Documents T7.
On 11 August 1992, Dr Alexeyeff issued a further Medical Certificate stating a diagnosis of “Stress Induced Fatigue and Mental exhaustion” and a prognosis that the impairment was likely to last for more than six months.[32]
[32] Refer T-Documents T8.
On 25 August 1992, Dr Alexeyeff completed a DSS Treating Doctor’s Report and stated a diagnosis of “Nervous Exhaustion – stress induced” and stated that “… 2.Stress induced fatigue and insomnia business & family worries”.[33] There was a reference to Mr Petrovic having taken anxiolytics in the past and that present treatment was nil. It stated that Mr Petrovic had not been hospitalised in the previous five years. He stated that the stress induced fatigue was temporary. The doctor stated he thought Mr Petrovic would remain unfit for work for “6-12 months”.
[33] Refer T-Documents T9.
Dr Harries, upon examining Mr Petrovic on 14 September 1992, recorded a history as follows (as relevant to Mr Petrovic’s mental health conditions):
36 years old. Has not worked since 1989/1990?
Had argument with boss & left job.
Medical problems
Stress
Nerves are no good – started a few years ago
Can’t sleep
This all started after allergic reaction to Penicillin injection – had had 4 already with no problems but with 5th one – fainted & they “thought he was going to die”. Since then very nervous, accident ? fatigue ? him.
Very worried about family in Yugoslavia with war etc – doesn’t know if they are alright.
Feels better when goes to his friend on the farm
Dr Harries made a note in the treatment section of the form that Mr Petrovic had never had treatment for his nerves or been to see a psychiatrist. The doctor’s clinical findings included:
Unshaven man.
Not obviously depressed/anxious.
Dr Harries recorded “mild depression/stress” as a temporary condition and stated that the prognosis was good. The doctor stated, “Reaction to family situation. Family in Yugoslavia (Bosnia) in the war. He had no word of them. No treatment required. Clinically, he is not at all depressed or anxious”.
Dr Alexeyeff completed a further Medical Certificate on 21 February 1993 stating a diagnosis of “Acute or Chronic Anxiety” and the he was likely to be able to return to work in the next three months.
On 11 January 1994, Dr Alexeyeff completed a DSS Treating Doctor’s Report and stated a diagnosis of “stress induced insomnia” following collapse of work about 18 months prior; and “reactive depression”, which the doctor described as temporary and moderate. The treatment listed was “counselling, Xanax pro and Zantac”. Symptoms included “difficulty waking in the am. Poor concentration. Reactive stress”. The prognosis was stated as “eventual recovery in under two years”. It was estimated by the doctor that Mr Petrovic would be unfit for work for the next “3-6 months”.
Based on the approach in Negri, the Tribunal has considered the medical reports by an “appropriately qualified medical practitioner” being a psychiatrist, Dr Kaplan, as referred to in paragraphs [147], [148] and [149] even though his reports post-date the Qualification Date. In that report, Dr Kaplan made a diagnosis of “Adjustment Disorder with Mixed Anxiety and Depressed Mood”.
In the highlighted part of Dr Kaplan’s report referred to in paragraph [148], the doctor speculates that Mr Petrovic’s condition was unlikely to have altered significantly over the past three years since the fall. This speculation was based on an assumption that Mr Petrovic has had “chronic pain” which has been present for some years which was aggravated three years ago by the fall. The Tribunal considers that Mr Petrovic no doubt experienced some pain as a result of his ongoing back condition and hip conditions and also as a result of his recovery from the fall injury to his heel, however, the Tribunal does not consider that on balance, the medical evidence favours a finding that Mr Petrovic had “chronic pain”, except perhaps in the periods immediately following surgery on his left hip and injured right heel. The Tribunal notes that orthopaedic surgeons expressed a good recovery from both procedures and in the case of the foot, actively encouraged Mr Petrovic to cease using the crutches because in the doctor’s opinion, Mr Petrovic no longer needed them when it appeared that Mr Petrovic seemed inclined to continue doing so.
The Tribunal does not accept Dr Kaplan’s evidence as to the likelihood of whether Mr Petrovic was suffering from the adjustment disorder as at the Qualification Date; because the Tribunal considers that the doctor’s retrospective assessment about this was not based on a solid foundation. Namely, Dr Kaplan’s retrospective opinion was based on the premise that Mr Petrovic was experiencing chronic pain when the Tribunal is not satisfied that this was the case as at the Qualification Date as outlined in paragraph [164]. There was no other evidence from a specialist medical practitioner (i.e. neurologist, rehabilitation physician, psychiatrist or neuropsychologist), who had diagnosed Mr Petrovic with chronic pain before the Qualification Date. Accordingly, the Tribunal does not find that as at the Qualification Date, that Mr Petrovic’s mental health condition was fully diagnosed by an appropriately qualified medical practitioner.
Even if the Tribunal is wrong about this, the Tribunal is not satisfied that Mr Petrovic’s mental health condition was fully stabilised as at the Qualification Date within the meaning of subsection 6(6) of the Determination. As at the Qualification Date, the Tribunal finds that Mr Petrovic had not undertaken reasonable treatment for his mental health condition and that neither subsection 6(6)(b)(i) or (ii) applied to Mr Petrovic, for the reasons set out below.
Following the cancellation of DSP, Mr Petrovic was for the first time referred to a psychologist for psychological intervention (in the form of counselling under a mental health plan) and he was also referred to a psychiatrist one year later, who, upon examining him, made significant alterations to his prescribed medications for his mental health condition. It was significant that the psychiatrist recommended that Mr Petrovic cease taking Lexotan (a benzodiazepine tranquilliser that was prescribed to him by his treating general practitioner, over a long period of time, to assist him to sleep), and instead, prescribed Mr Petrovic with alternative anti-depressant medications.
The Tribunal finds that the psychological intervention (the program of counselling) and the alteration in Mr Petrovic’s prescribed medications in a significant way were reasonable treatment for Mr Petrovic’s mental health condition.
It was contended on behalf of Mr Petrovic that the Tribunal should rely on Dr Kaplan’s view, as expressed in his 23 May 2017 report as set out in paragraph [149], that it was unlikely that psychological intervention could reliably have been expected to resulted in substantial improvement in Mr Petrovic’s functional capacity and that “depression related to chronic pain tends not to respond to antidepressant medication”. This contention suggests that subsection 6(6)(b)(i) of the Determination applied to Mr Petrovic.
The Tribunal acknowledges Dr Kaplan’s view that he does not hold out hope that the change in antidepressant medication or psychological intervention will result in significant change in Mr Petrovic, however, Dr Kaplan’s opinion is based upon an assumption that Mr Petrovic was experiencing “chronic pain”. As already indicated, the Tribunal does not find that Mr Petrovic had a chronic pain condition or experienced chronic pain. It appeared from the evidence of Mr Petrovic’s other treating medical practitioners (in particular, his psychologist Mr Stojcevski and also Dr Horsley) that a primary source of the recent deterioration of Mr Petrovic’s mental health condition was the event of cancellation of his DSP. The Tribunal also considers that the loss of Mr Petrovic’s home “a year or two” before he saw Dr Kaplan in November 2016, due to the “financial dealings of his de facto” appeared, on the evidence, to have impacted greatly on Mr Petrovic’s mental health condition.
The Tribunal is satisfied that the completion of a program of psychological intervention coupled with significant alterations to be made to Mr Petrovic’s psychotropic medications, may result in a significant functional improvement to a level enabling Mr Petrovic to undertake work in the next two years. The Tribunal considers that it is possible that this treatment may assist Mr Petrovic to come to terms with the recent change in his financial circumstances and to equip him with some tools to prepare him, psychologically, to become open to searching for appropriate employment that will accommodate the limitations that arise from his conditions.
The Tribunal is also not satisfied that subsection 6(6)(b)(ii) of the Determination applied because there was no medical or other reason to explain why Mr Petrovic had not undertaken and completed psychological counselling, or a review of his psychotropic medication by a psychiatrist, prior to the Qualification Date. The Tribunal notes that Mr Petrovic had available to him before the Qualification Date the option of applying to go onto a mental health plan which would have entitled him to undertake psychological intervention (counselling) by a psychologist at a much earlier point in time at no cost to him.
The Tribunal does not accept that Mr Petrovic sufficiently undertook reasonable treatment merely by attending his treating general practitioner about his psychological or psychiatric problems and relying only on the psychotropic medication prescribed by a general practitioner that had clearly not assisted Mr Petrovic over a lengthy period of time, other than perhaps to have a tranquilising effect on him. The Tribunal finds that this was not reasonable treatment and instead, may have acted to hamper Mr Petrovic’s medical progress, noting that the evidence of Mr Petrovic was that he struggled to get out of bed on some days.
The Tribunal is also satisfied that as at the Qualification Date, Mr Petrovic’s mental health condition was not fully treated. In reaching this conclusion, the Tribunal has taken into account the matters set out in section 6(5) of the Determination. As relevant, the Tribunal has considered the absence of treatment by Mr Petrovic before the Qualification Date by a psychologist, clinical psychologist or psychiatrist which was difficult to comprehend, for a condition that was contended by Mr Petrovic, and described by Ms Florenini in her evidence, to have had a debilitating impact on Mr Petrovic over many years and said to constitute a moderate level of impairment on Mr Petrovic’s mental health function under Table 5.[44] The Tribunal has also considered the treatment program of psychological intervention by Mr Stojcevski and the significant change in his psychotropic medication, which commenced after the Qualification Date, and the fact this it is continuing. Based on this evidence, the Tribunal finds that Mr Petrovic’s mental health condition is not fully treated.
[44] Refer page 13 of Mr Petrovic’s SFIC.
In conclusion, the Tribunal finds that Mr Petrovic’s mental health condition was not permanent as at the Qualification Date, as it did not meet at least subsections 6(4)(a), (b) and (c) of the Determination, all being mandatory requirements for a condition to be considered permanent. Accordingly, this condition, because it was not permanent, did not attract a rating under Table 5 of the Impairment Tables.
Brain damage and chronic pain – impairment to brain function under Table 7
Chronic pain
Mr Petrovic contended that he suffered from chronic pain and that chronic pain adversely affected his mental health and cognitive function. Mr Petrovic’s representative drew the attention of the Tribunal to the Introduction to Table 7 which cites chronic pain as an example of a condition associated with cognitive impairment. The Tribunal notes that where chronic pain is cited in the Introduction to Table 7, there is also a requirement specified that a report supporting the diagnosis of the relevant condition associated with neurological or cognitive impairment, such as chronic pain, should be obtained from a specialist health practitioner (e.g. neurologist, rehabilitation physician, psychiatrist or neuropsychologist). Mr Petrovic references the report of Dr Kaplan, a Psychiatrist.
As addressed in paragraph [160], the Tribunal does not accept Dr Kaplan’s evidence as constituting a diagnosis of chronic pain of Mr Petrovic as at the Qualification Date. Firstly, the Tribunal considers that too much time, i.e. one year, had passed since the Qualification Date and when Dr Kaplan first examined Mr Petrovic, for the Tribunal to be satisfied that Dr Kaplan was in a position to be able to make that diagnosis on a sound basis. Secondly, the Tribunal considers that Dr Kaplan when citing a reference to chronic pain in his reports was not making a diagnosis but was simply reflecting a description of Mr Petrovic’s condition or symptoms that had been relayed to Dr Kaplan by Dr Dojic in the referral letter. Dr Dojic is a general practitioner, and therefore not a specialist health practitioner as contemplated by the Introduction to Table 7 as explained in paragraph [170]. Dr Bond on 14 July 2000, and Dr Vilagosh on 9 February 2015 (see paragraphs [33] and [35] respectively), made references to Mr Petrovic having a chronic lower back pain condition, however, the Tribunal does not accept those diagnoses because they were made by a general practitioner and not by a specialist health practitioner. The Tribunal also lacked confidence in the diagnoses of Mr Petrovic’s treating general practitioners as they were not consistent and instead, varied greatly from time to time over the course of treating Mr Petrovic. Further, the prognoses given by those doctors repeatedly turned out to be inaccurate with no explanation as to why that was the case, nor any steps taken by those doctors to investigate the medical conditions in an attempt to address why those conditions had persisted for as long as they did.
For these reasons, the Tribunal finds that there is insufficient evidence for a finding that as at the Qualification Date, Mr Petrovic had been fully diagnosed with a condition of chronic pain. It follows that any impairment arising from this condition is not permanent and does not attract an impairment rating under Table 7.
Brain Damage
The Tribunal has considered the evidence of Dr Rose, noting that she is a qualified psychiatrist, as outlined in paragraphs [26] and [135] and in particular the references to Mr Petrovic having sustained a head injury during a car accident in 1981. Dr Rose reported that Mr Petrovic had reported that he had been somewhat forgetful, had been prone to regular headaches since that accident, for which he took analgesics and that his sleep had been poor. There was also a reference to him having poor concentration, although it seemed that Dr Rose may have questioned this on account of him reporting that he played soccer on a regular basis. Dr Rose stated that Mr Petrovic had been unconscious for a period of “perhaps” 24 hours as a result of the accident and that he had experienced “significant retrograde amnesia”.
Dr Rose’s concluded from his examination of Mr Petrovic in 1994, being 13 years after the car accident in 1981, that he was not suffering from a psychiatric disorder as such but that he had mild brain damage as a result of a serious head injury, which had resulted in chronic headaches, lowered concentration and irritability. Dr Rose observed that the organic disturbance resulting from his head injury had not been sufficient to stop him from working and he considered Mr Petrovic “to be fully capable of holding down a regular job”. The Secretary asked the Tribunal to note that Dr Rose was not Mr Petrovic’s treating practitioner and that there was no other evidence as to the brain damage referred to by Dr Rose. Despite those matters, the Tribunal accepts the evidence that was provided in Dr Rose’s report, given Dr Rose’s specialist qualifications and also given that he provided his opinion after he had undertaken a personal examination of Mr Petrovic.
The Introduction to Table 7 states that it is to be used “where the person has a permanent condition resulting in functional impairment related to neurological or cognitive function”. The Tribunal is satisfied on the evidence of Dr Rose, as outlined above, that as at the Qualification Date, Mr Petrovic had been diagnosed with brain damage. Mr Petrovic had suffered from this condition for a long period of time before being examined by Dr Rose. It was not suggested by the Secretary that Mr Petrovic had not yet undertaken any reasonable treatment for this condition. Mr Petrovic had been prescribed analgesics and had taken these as required to manage his bad headaches. The Tribunal is satisfied that as at the Qualification date, this condition was likely to have persisted for more than two years, noting that Mr Petrovic has suffered memory problems arising from the accident since 1981.
Accordingly, the Tribunal finds that this condition was permanent under subsection 6(4) of the Determination as at the Qualification Date. It follows that a rating should be assigned to this condition under Table 7 for impairment to brain function.
Under Table 7, five points will be assigned to a condition if there is a mild functional impact resulting from a neurological or cognitive condition. The descriptor for a five-point rating is set out below (emphasis added):
(1)The person is able to complete most day to day activities without assistance and has mild difficulties in at least one of the following:
a) memory; Example: The person occasionally forgets to complete a regular task or sometimes misplaces important things;
b) attention and concentration; Example 1: The person has some difficulty concentrating on complex tasks for more than 1 hour. Example 2: The person has some difficulty focusing on a task if there are other activities nearby.
c) problem solving; Example: The person has difficulty solving complex problems that may involve multiple factors or abstract concepts. Example 2: The person shows a lack of awareness of problems in some situations.
d) planning; Example: The person has some difficulty planning and organisation complex activities (such as arranging travel and accommodation for an interstate or overseas holiday);
e) decision making; Example: The person has some difficulty in prioritising and complex decision making when there are several options to choose from.
f) comprehension: Example: The person has some difficulty in understanding complex instructions involving multiple steps.
A 10-point rating under Table 7 will be assigned where “there is a moderate functional impact resulting from a neurological or cognitive condition”. The descriptor for this rating is set out below:
(1) The person needs occasional (less than once a day) assistance with day to day activities and has moderate difficulties in at least one of the following:
a. memory; Example 1: The person often forgets to complete regular tasks of minor consequence such as putting the bin out on rubbish night. Example 2: The person often misplaces things. Example 3: The person needs to use memory aids (such as shopping lists) to remember any more than 3 or 4 items.
b. attention and concentration; Example 1: The person has difficulty concentrating on complex tasks for more than 30 minutes. Example 2: The person has significant difficulty focusing on a task if there are other activities occurring nearby.
c. problem solving: Example: The person has difficulty solving some day to day problems or problems not previously encountered and may need assistance or advice from time to time.
d. planning; Example: The person has difficulty planning and organising new or special activities (such as planning and organising a large birthday party).
e. decision making; Example: The person has some difficulty in prioritising and decision making and displays poor judgement at times, resulting in negative outcomes for self or others.
f. comprehension; Example: The person has difficulty understanding complex instructions involving multiple steps and may need more prompts, written instructions or repeated demonstrations than peers to complete tasks;
g. visuo-spatial function; Example: The person has some difficulty with visuo-spatial functions (such as difficulty reading maps, giving directions or judging distance or depth) but this does not result in major limitations in day to day activities.
h. behavioural regulation; Example: The person occasionally (less than once a week) has difficulty controlling behaviour in routine situations (such as showing frustration or anger or losing temper for minor reasons but displays no physical aggression).
i. self awareness; Example: The person lacks awareness of own limitations, resulting in mild difficulties in social interactions or problems arising in day to day activities.
Ms Florenini in her statement, noting that it was made seven months after the Qualification Date, and at the hearing, gave evidence that Mr Petrovic struggled with his memory and concentration. She said that she had devised a system of using “post-it” notes and phone reminders to remind Mr Petrovic to take his medication and eat his meals. She stated that Mr Petrovic appeared to feel shame that he did not remember things. She stated that Mr Petrovic would sometimes call her “for menial reasons” and would have forgotten that they had already spoken about or addressed things. Ms Florenini said that Mr Petrovic would find it difficult to make a decision, such as to pay a bill, because he did not know whether he had paid it previously. She said that when he went to the shopping centre, he was “really slow” and that he could not remember why he was there. Ms Florenini says that she did not think Mr Petrovic could work for more than one hour at a time as he could not concentrate on the tasks at hand, no matter how menial they were or is “so anxious and angry”. She said he seemed less able to concentrate on things over the previous ten years. At the hearing, Ms Florenini gave evidence that Mr Petrovic’s mood swings were “quite dramatic” and that he got “frustrated”.
Mr Petrovic at the hearing gave evidence that he “used to love reading”, but now and in October 2015, he could only read half a page. He said that in October 2015 he would often have outbursts of anger and that it would not take long for someone to spark him. He said that some of his friends had stopped seeing him. The evidence did not indicate that Mr Petrovic had lost all of his social contacts. Mr Petrovic gave evidence at the hearing that on a good day, he would go out with a friend. He said they would go for a coffee or a couple of drinks. Mr Florenini also referred to Mr Petrovic having a friend who would help him to read his mail. Mr Florenini also remained a close friend to Mr Petrovic.
Mr Petrovic said he did not have an ability to plan. When questioned, Mr Petrovic said he did not make decisions day to day. He said he was dependent on Ms Florenini and his daughter to get him to his appointments. He said he did not interact at all and that “the pills knocked me out”. He said he did not watch television and when he tried to read a magazine or book, he would fall asleep.
The Tribunal notes that Mr Petrovic told the JCA Assessor when he assessed him on 1 October 2015 that he had a current driver’s licence “but was only able to drive a maximum of one hour at a time due to the impact of his medical conditions”.[45] Mr Petrovic gave evidence that in October 2015, he would drive himself to the local gym to exercise, including on the cross trainer.
[45] Refer T-Documents T25/105.
Based on this evidence, the Tribunal is satisfied that Mr Petrovic’s attention, concentration, decision making, judgement, visuospatial function and planning was sufficiently able to manage the task of independently driving a motor vehicle for up to a period of one hour, which was substantial. The Tribunal also finds that Mr Petrovic was sufficiently able to employ those capabilities to enable him to drive to the gym independently, which the evidence indicated that he was doing on a regular basis, even if this did not take place every day as indicated by Mr Petrovic.
Further, the Tribunal notes the evidence that Mr Petrovic took a number of overseas trips between 2012 and 2015, and it appears he took a ski trip about ten years ago (as referenced on page 5 of Dr Horsley’s report dated 6 March 2017), while he was received DSP, during which he sustained a fall and injured his hip. The Tribunal accepts that others may have assisted Mr Petrovic to organise the travel arrangements for those trips, however, the Tribunal is satisfied that leading up to the cancellation date, Mr Petrovic’s neurological and cognitive function was sufficiently at a level to enable him to cope with the demands usually associated with overseas and other travel, even when assisted, in part, by others.
In the five-point rating row of Table 7, the Tribunal finds, on the evidence, that as at the Qualification Date, Mr Petrovic did not need assistance and supervision from his daughter or Ms Florenini at least once a day on account of the neurological or cognitive issues likely to have arisen from his head injury. Ms Florenini gave evidence that Mr Petrovic was visited upon by Ms Florenini and/or his daughter about twice a day and that Ms Florenini would attend to many of the household tasks. Mr Petrovic’s daughter did not provide a statement. However, the Tribunal is not satisfied that the frequency of those visits, on all occasions, were out of necessity. The Tribunal gained an impression from the evidence of Ms Florenini and Mr Petrovic, that Mr Petrovic had developed an over reliance on his supports to assist him with his day to day activities, perhaps as a result of the kindness and willingness on the part of Ms Florenini to take up that role, when it seemed from the evidence that Mr Petrovic was capable of doing many of the activities for himself. The Tribunal notes that under s 6(1) of the Determination that it must make its assessment on the basis of what Mr Petrovic can do and not on the basis of what Ms Florenini and/or Mr Petrovic’s daughter has chosen to do for him. Accordingly, the Tribunal finds that the first requirement of paragraph (1), namely, that the person is able to complete most day to day activities, applied to Mr Petrovic as at the Qualification Date.
On the evidence, including the matters outlined in paragraphs [179] to [184], the Tribunal is satisfied that subparagraphs (1)(a), (b), (c) and (f) applied to Mr Petrovic as at the Qualification Date. The Tribunal is not satisfied that subparagraphs (1)(d) and (e) applied to Mr Petrovic due to the matters raised in paragraph [182] to [184]. Only one of those subparagraphs needed to apply for Mr Petrovic to satisfy this second requirement of paragraph (1). Consequently, the Tribunal finds that paragraph (1) applied to Mr Petrovic and the descriptor for a five-point rating under Table 5 applied to him.
The Tribunal will consider next whether the descriptor for the 10-point rating under Table 7 applied to Mr Petrovic.
For the same reasons as described in paragraph [182] to [185], the Tribunal finds that Mr Petrovic did not need occasional (less than once a day) assistance with day to day activities and for this reason he did not meet the first of the two mandatory requirements of paragraph (1).
The Tribunal finds, on the evidence, that Mr Petrovic had moderate difficulty with the attributes listed in subparagraphs (1)(a), (b) and (h). The Tribunal is not satisfied that Mr Petrovic had a moderate difficulty with the remaining attributes. The Tribunal notes that a person need only have a moderate difficulties with one of the attributes listed in subparagraphs (1)(a) to (j) inclusive, so it follows that Mr Petrovic met the second of the two mandatory requirements for this descriptor.
In conclusion, the Tribunal finds that the descriptor for a 10-point rating under Table 7 did not apply to Mr Petrovic at the Qualification Date as he did not meet both of the requirements for this descriptor to apply. The Tribunal was not satisfied that Mr Petrovic had a moderate functional impact resulting from a neurological or cognitive condition. However, the Tribunal finds that the descriptor for the five-point rating under Table 7 applied to Mr Petrovic as both of the mandatory requirements for this descriptor applied to him as at the Qualification Date. The Tribunals finds that Mr Petrovic had a mild functional impact resulting from a neurological or cognitive condition.
Accordingly, the Tribunal assigns five points to Mr Petrovic under Table 7 on account of brain damage.
Oesophageal condition – impairment to digestive function (Table 10)
It was conceded by the Secretary that as at the Qualification Date, Mr Petrovic had an oesophageal condition that was permanent.[46] However, the Secretary contended that this condition had no functional impact on Mr Petrovic. Dr Vilagosh, in the Centrelink Treating Doctor’s Report dated 9 February 2015 stated his opinion that Mr Petrovic had “GORD with Barrett’s Oesophagitis” and he listed this a condition of Mr Petrovic that was “generally well managed and that caused minimal or limited impact on ability to function”. Mr Petrovic did not contend or give evidence otherwise in this application.
[46] Refer paragraph [4.62] of the Secretary’s SFIC.
The Tribunal finds that Mr Petrovic’s oesophageal condition had no functional impact on him and as such, zero points will be assigned to Mr Petrovic under Table 10.
CONCLUSION
For the reasons outlined in this decision, the Tribunal concludes that as at the Qualification Date:
(a)Mr Petrovic had permanent conditions causing impairment to his:
(i)spinal function arising from the back and neck condition;
(i)lower limb function arising from the right heel (right foot) condition and bilateral hip condition; and
(ii)brain function arising from the condition of brain damage caused by a head injury;
(b)those conditions were fully diagnosed, fully treated and fully stabilised and they were more likely than not to persist for more than two years. Therefore, those conditions are permanent within the meaning of subsection 6(4) of the 2011 Determination;
(c)the following ratings under the Impairment Tables applied to Mr Petrovic’s impairments arising from permanent conditions:
(i)impairment to spinal function: five points under Table 4;
(ii)impairment to lower limb function: five points under Table 3;
(iii)impairment to brain function: five points under Table 7;
(d)while it was claimed that Mr Petrovic had impairment to his mental health function arising from adjustment disorder with mixed anxiety and depressed mood, and impairment to his brain function arising from chronic pain, those conditions were not fully diagnosed, fully stabilised or fully treated at the Qualification Date. As such, they were not permanent conditions under subsection 6(4) of the 2011 Determination; and
(e)Mr Petrovic had an oesophageal condition that was a permanent condition as at the Qualification Date, however, there was no functional impact on Mr Petrovic’s digestive function and the Tribunal assigned zero points for this impairment under Table 10.
Mr Petrovic’s combined level of impairment arsing under Tables 3, 4 and 7, being 15 points, did not exceed the 20 points required to satisfy one of the mandatory eligibility requirements as set out in s 94(1)(b) of the Act. This being so, there is no need for the Tribunal to consider whether Mr Petrovic also met the “continuing inability to work” requirement under s 94(1)(c) of the Act.
Accordingly, the Tribunal affirms the decision of the AAT1. The Tribunal finds that the decision to cancel Mr Petrovic’s DSP on 8 October 2015 was correct as he did not meet the eligibility requirements under the Act.
I certify that the preceding 196 paragraphs are a true copy of the reasons for the decision herein of Member K. Parker
[sgd].....................................................................
Associate
Dated: 4 April 2018
Date of hearing:
31 July 2017
Counsel for the Applicant:
Representative for the Applicant:
Raphael De Vietri
Istarlin Hassan, Simple Solutions Guide
Representative for the Respondent: Belinda Lewis, Department of Human Services
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