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

Sadikovski and Secretary, Department of Social Services (Social services second review) [2021] AATA 1791 (17 June 2021)
Division:GENERAL DIVISION
File Number: 2020/6626
Re:Mr Vergim Sadikovski
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Ms A E Burke, AO Member
Date:17 June 2021
Place:Melbourne

The Tribunal affirms the decision under review.
.......................................................................
Ms A E Burke, AO Member
Catchwords
SOCIAL SECURITY – application for disability support pension – whether qualified – whether insufficient medical evidence provided – whether impairment attracts rating of 20 points or more under Impairment Tables – where program of support had not been undertaken – decision under review affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Active Participation for Disability Support Pension) Determination 2014
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Cases
Muir and Secretary, Department of Employment and Workplace Relations [2005] AATA 902
Newman and Secretary, Department of Family and Community Services [2002] AATA 917
Smalldon and Secretary, Department of Social Services [2015] AATA 2
Uebergang and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 642
Secondary Materials
Guide to Social Security Law, Department of Social Services
REASONS FOR DECISION
Ms A E Burke, AO Member
17 June 2021
INTRODUCTION

Mr Sadikovski, (Applicant) is seeking a second tier review of the decision made by the Secretary, Department of Social Services (the Respondent) to refuse to grant him a Disability Support Pension (DSP) pursuant to section 94 of the Social Security Act 1991 (the Act).
Mr Sadikovski lodged a claim for DSP on 4 June 2019. On 24 June 2019, Centrelink rejected Mr Sadikovski’s claim for DSP as he did not have an impairment rating of 20 points. On 26 August 2020, an Authorised Review Officer (ARO) of Centrelink affirmed the decision. Mr Sadikovski sought review of the decision by the ARO at the Social Services and Child Support Division of this Tribunal (Tier 1), which affirmed the decision on 12 October 2020. Centrelink is the service provider for the then Department of Human Services, now Services Australia.
The application was heard via telephone on 21 April 2021. Mr Sadikovski was self-represented and Mr Kelvin Defranciscis, Solicitor at Sparke Helmore Lawyers, appeared for the Respondent. The Applicant gave evidence under affirmation and was cross-examined by Mr Defranciscis.
THE ISSUE IN CONTENTION
The issue in contention is whether Mr Sadikovski was qualified for a DSP at the date of his claim (4 June 2019) or within the 13 weeks thereafter; that being to 3 September 2019 (the qualifying period). This is in accordance with section 4(1) of Schedule 2 of the Social Security (Administration) Act 1999 (the Administration Act).
The qualification criteria for DSP are found in section 94 of the Act. In order to determine whether Mr Sadikovski qualifies for DSP, the Tribunal must consider whether Mr Sadikovski:
(a)has a physical, intellectual or psychiatric impairment(s);
(b)has a condition which has been fully diagnosed, treated and stabilised and is likely to continue for at least two years;
(c)has a fully diagnosed, treated and stabilised condition or conditions, which attract 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables); and
(d)has a continuing inability to work.
BACKGROUND
Mr Sadikovski is a 50-year-old of Albanian heritage originally from the former Yugoslavia, having migrated to Australia as a 17-year-old in 1987. Mr Sadikovski completed Year 7 in the former Yugoslavia and does not read or write English. Mr Sadikovski is married and lives with his wife their young son and 2 adult children. Mr Sadikovski has another daughter who is married and lives nearby. Mr Sadikovski had predominately worked in physical demanding roles as a machine operator in a factory, as a labour, on farms and on building sites. Mr Sadikovski last worked in March 2017 when he sustained a lower back injury whilst at work as a labourer on a building site. Mr Sadikovski was in recite of workers compensation payments until July 2019 when his payments ceased.
On 4 June 2019, Mr Sadikovski lodged an application for DSP, citing his medical conditions as:
My ability to work is affected by the following condition(s): BACK, NECK AND LEG ARM
Current treatment Treatment includes Medication
Past treatment Back surgery on L4.5, degenerative disc and facent joint changes most severe l4 . 5, 4 blockages in back and burnt nerve, 3 blockages in neck
Future treatment neck with brachialagia congenital fusion at c5.6 . disc buldging atc3.4c c4.5 with foraminal stenosis
On 24 June 2019, Centrelink rejected Mr Sadikovski’s DSP application finding him not eligible for the DSP, taking into account all available medical evidence and other relevant information about his circumstances.
On 20 December 2019, Centrelink undertook a face to face employment services assessment report on Mr Sadikovski determining he had a spinal and neck disorder which were full diagnosed and treated. The report determined that Mr Sadikovski’s work capacity was 8-14 hours per week and the rationale for this was:
The client's verified medical condition has resulted in the client having a reduced work capacity of between 0-7 hours per week until 20/06/2020.
The customer would benefit from a 0-7 hours/week work capacity for a 6 months period to engage in his GP treatment plan. Participation requirements during this time may exacerbate his conditions and interfere with treatment and recovery.
Customer's baseline work capacity is considered reduced to the 8-14 hours per week level, due to the combined impacts resultant from his medical conditions: lower back pain and neck pain, which impact negatively on his endurance, and physical abilities such as sitting, standing, bending, and lifting, as well as his mobility.
It is anticipated, with access to DES interventions, the client may be capable of building his work capacity to the 15- 22 hours per week level.
On 29 June 2020, Centrelink completed a DSP Medical Eligibility Assessment Recommendation determining:
The DSP Medical Eligibility Assessment Recommendation dated 13/06/2019 indicated the condition Multilevel degenerative changes Lumbar and Cervical Spine was permanent and fully diagnosed but not fully treated and stabilised.
Medical evidence provided since that date provides information about treatment and notes the condition will not significant improvement expected and this falls within the claim period of this appeal (04/06/2019 - 02/09/2019).
The medical condition, Multilevel degenerative changes Lumbar and Cervical Spine, is confirmed by Dr Hong Ping Tan, GP, Dr Nick Christelis, Pain Specialist and Anaesthetist and Dr John Fraser, Consultant Orthopaedic Surgeon. There is evidence of diagnosis, engagement in reasonable treatments and ongoing functional impairment. There are other medical conditions listed within the body of the medical evidence that may or may not meet medical eligibility criteria.
A JCA is recommended to further assess medical eligibility and apply an impairment rating/s if appropriate.
On 8 July 2020, Centrelink undertook a telephone Job Capacity Assessment (JCA) on Mr Sadikovski, determining he had a spinal disorder which was full diagnosed but not fully treated or stabilised (FDTS). The report determined that:
FDTS status:
This condition is considered fully diagnosed at the time of the claim period as the diagnosis had been confirmed by a Specialist Medical Practitioner after appropriate investigations. The condition is not considered fully treated and stabilised at the time of the claim period as the Pain Specialist indicated in a report dated 05/06/2019 that he and his allied health team at the clinic felt that the client may benefit from a more formal inpatient-based pain management program. This recommendation had not been followed up by the client at the time of the claim period. It is considered that the client should engage in the type of formal inpatient pain management program recommended by the Pain Specialist before concluding that the client has exhausted reasonable treatment options and that there will be no functional improvement within 2 years.
On 26 August 2020, on internal review, a departmental ARO affirmed the Centrelink finding of 24 June 2019. The ARO determined that Mr Sadikovski’s condition of back pain could not be considered permanent, stating the following:
On 5 June 2019, Dr Christelis, a pain specialist reported that he and his allied health team felt you may benefit from a more formal inpatient-based pain management program. On 1 October 2019, Dr Tan indicated that the prognosis was uncertain and your return to work/study depends on resolving your pain.
The condition is not considered fully treated and stabilised because Dr Christelis and his allied health team recommended formal inpatient-based pain management program and this recommendation had not been followed up. As such your condition has not been given a rating under the Impairment Tables.
As you do not have an impairment rating of at least 20 points, you are not qualified for Disability Support Pension. This means the decision to reject your claim for Disability Support Pension was correct.
On 12 October 2020, Tier 1 of the Tribunal affirmed the decision of the ARO to reject Mr Sadikovski’s DSP claim. The Tier 1 concluded that none of Mr Sadikovski’s medical conditions attracted an impairment rating. Tier 1 of the Tribunal found:
Based on the medical evidence available, the Tribunal finds that Mr Sadikovski’s claim for back pain can’t be considered fully treated and fully stabilised and therefore a permanent condition at the date of his claim under the terms of the legislation as provided in paragraphs 9 to 11 above. That’s because the evidence is incomplete and does not show that at the date of claim Mr Sadikovski had completed the recommended treatments. Indeed, the medical evidence shows that the day after his claim for disability support pension, his treating doctor recommended a new treatment for pain management. As these conditions are not permanent under the terms of the legislation, the Tribunal cannot further consider these conditions.
As the Tribunal is unable to assign any impairment ratings points, it follows that Mr Sadikovski does not meet the initial legislative requirement for disability support pension.
On 20 October 2020, Mr Sadikovski sought a review of Tier 1 decision by this division of the Tribunal (Tier 2), as he disagreed with the decision, stating:
Decision is wrong because I’ve been seeing my doctor for this injury and he has stated I will not be fit to work again. Due to this injury I have suffered for 4 years with no ability to do anything. I am in severe pain and am on a lot of medication. Due to this injury I have a walking frame I use and am suffering in. A lot of pain.
RELEVANT LEGISLATION AND ISSUES
Section 94(1) of the Act provides that a person is qualified for DSP 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;
…
Paragraph 6(3)(a) of the Impairment Tables require that an impairment rating can only be assigned if the condition causing that impairment is “permanent”.
Paragraph 6(4) of the Impairment Tables states that 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
(c)       the condition has been fully stabilised; and
(d)       the condition is more likely than not, in light of available evidence, to persist   for more than 2 years.
The introduction to each relevant Impairment Table requires that “self-report of symptoms alone is insufficient” and “there must be corroborating evidence of the person’s impairment”.
Paragraph 6(5) of the Impairment Tables states:
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.
Paragraph 6(6) of the Impairment Tables states:
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.
For the purposes of paragraph 6(7) of the Impairment Tables, “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.
The issue to be determined in this review is whether, during the qualifying period, Mr Sadikovski suffered an impairment(s) that can be assigned 20 points or more under the Impairment Tables; and, if so, whether he had a continuing inability to work.
The Impairment Tables are function-based rather than diagnosis-based. They describe functional activities, abilities, symptoms and limitations. They are designed to enable the assignment of ratings to determine the level of functional impact of an impairment and not to assess conditions.[1]
[1] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011, s 5(2).
Paragraph 6(1) of the Impairment Tables sets out that, when assessing functional capacity, a person’s impairment must be assessed on the basis of what a person can, or could do; not on the basis of what a person chooses to do or what others can do for the person.
Paragraph 6(8) of the Impairment Tables further provides that the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating can be assigned. In other words, a person may be diagnosed with a condition but, with appropriate treatment, the impairment from the condition may not result in any functional impact.
It is necessary, therefore, to consider the Applicant’s medical conditions with reference to the applicable Impairment Tables.
Part 2 of the Social Security (Active Participation for Disability Support Pension) Determination 2014 (POS Determination) sets out a number of exemptions to the general requirements that a person must participate in a program of support for at least 18 months in cases where a person does not have a severe impairment.
The Determination relevantly provides:
Part 2—Requirements for active participation
7 Requirements for active participation
…
(4)      This subsection is satisfied in relation to a person and a program of    support if:
(a)      the program of support was terminated before the end of the             relevant period; and
(b)      the program of support was terminated because the person   was unable, solely because of his or her impairment, to   improve his or her capacity to prepare for, find or maintain   work through continued participation in the program.
(5)      This subsection is satisfied in relation to a person and a program of          support if:
(a)      At the end of the relevant period, the person is participating   in the program of support; and
(b)      The person is prevented, solely because of his or her    impairment, from improving his or her capacity to prepare for,                    find or maintain work through continued participation in the               program.
THE TRIBUNAL’S CONSIDERATION AND FINDINGS
Evidence before the Tribunal
The evidence before the Tribunal included documents provided under section 37 of the Administrative Appeals Tribunal Act 1975, referred to as the “T documents”, and additional medical reports that were lodged by Mr Sadikovski.
DOES MR SADIKOVSKI HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT?
Section 94(1)(a) of the Act provides that to qualify for DSP, in the first instance a person must suffer from an impairment.
The Respondent accepts that Mr Sadikovski is suffering from a spinal disorder. The Tribunal finds that Mr Sadikovski was living with impairments during the qualifying period and therefore meets the requirements of section 94(1)(a) of the Act.
As noted above, section 94(1)(b) of the Act states that the second requirement to qualify for the DSP is that the person’s impairment is of 20 points or more under the Impairment Tables.
DOES MR SADIKOVSKI HAVE MEDICAL CONDITIONS THAT RESULT IN IMPAIRMENTS THAT CAN BE RATED 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES?
Mr Sadikovski advised the Tribunal that:
·Prior to his work accident, he was a very active person who had worked hard to support his family. Following the accident in 2017 he could not walk; he could not get up and did not know how he was going to get around. So, he approached his former boss who purchased him his walking frame prior to receiving any treatment which he continues to utilise all the time to get around.
·He has tried everything to deal with the pain, surgery, medication and injections but nothing has worked, and he is too scared to undergo anymore treatment as it may leave him worse off and he did not want to damage his family.
·His wife does everything for him, she even has to wipe his bottom as he cannot reach down to do this any longer; that his wife has her own issues, having had a serious car accident many years ago and does not drive.
·His son and daughter who live at home assist with driving him to appointments when they can as they both work full time; he needs someone to go on walks with him, as he is afraid of falling and has had several serious falls; he is too scared to go walking with his young son on his own as he would not be able to chase him if he decided to run off and he is distressed as he cannot interact with his young son as he would like; his daughter who is a diabetic has her own health issues and she does all the family shopping.
·To get to appointments he will often pay his cousin to drive him or get a taxi, his GP is only 5 minutes away.
·He had seen a psychiatrist as recommend by his doctors, but they had told him he just had pain and they could not help him.
·He has had an enormous amount of surgery in his life and a prior work accident in a factory had resulted in him requiring 8 operations on his left hand between 1998 – 2002.
·That he suffers pain and needs help to survive, he is not a lawyer or psychologist, he is too scared to have any more treatment as nothing has helped, if anything he is getting worse, no one can force him to have treatment he does not wish to undertake and he is managing with taking over the counter pain medication but he can do almost nothing.
Spinal Disorder

On 22 March 2017, Dr Maged Bekheet, Radiologist, reported on a CT scan of the Lumbosacral spine finding; posterior circumferential disc bulge at L4/5 with encroachment upon spinal canal and mild arthropathy of the right-side facet joint at L2/3. Early degenerative changes and small anterior marginal osteophytic lippings at T12/L1 and L1/2 levels.
On 9 May 2017, an MRI Cervical spine undertaken on Mr Sadikovski concluded there was multilevel degenerative changes seen, with bilateral foraminal stenoses and nerve root impingement described at right C4, both C5 and the exiting C7 on both sides.
On 11 August 2017, Mr Sadikovski underwent a microdiscectomy at L4/L5 and was discharged home on 14 August 2017.
On 18 September 2017, Mr Sadikovski attended the emergency department at Peninsula Health because of lower back pain post-surgery; he twisted his back and had burning pain from surgical sight down left leg and paraesthesia in the sole of his left foot, he was discharged home with increased pain medication.
On 20 October 2017, Dr David Oehme, Neurosurgeon, reviewed Mr Sadikovski six weeks posts his microdiscectomy finding he no longer had leg pain but had a lot of back pain which was slowly improving. Dr Oehme requested follow up physiotherapy from Workover to build up Mr Sadikovski’s strength and noted he also had a lot of issues with his neck and requested a right C5 nerve root inject in the first instance.
On 2 January 2018, Associate Professor Buzzard, in a Medico Legal (IME) report for Worker’s Compensation found that Mr Sadikovski’s neck condition was aggravated by his workplace injury and suggested the right C5 nerve root inject was an appropriate form of treatment.
On 7 February 2018, Associate Professor Buzzard in an IME for Worker’s Compensation for the purposes of a vocational assessment and return to work plan concluded:
I hold to my previously expressed opinion Mr Sadikovski has widespread degenerative disease in his spine. He has had further imaging of the low back region in May 2017 which demonstrated nerve root pathology which in tum caused him to have surgery on 11/9/20l7. He has not had a good result from that surgery.
I am concerned that there may be a significant functional overlay making him difficult to assess. First, I do draw your attention to the fact that he is able to sit at right angles on the examination couch albeit with some pain, yet he has bilaterally positive and quite markedly positive straight leg raising tests. Secondly, I can still find no definite "red flags" in terms of reflex or sensory abnormalities in his lower extremities. lt would however be reasonable for him to have an up to date MRI scan of the low back region to assess whether or not there ls a surgically remediable problem. It would appear that he is seeing Dr Oehme in the near future and presumably that will be organised at that time.
With regard to his neck, I am concerned that on objective examination, the range of movement of his neck is severely restricted though on casual observation, the range of movement was greater than that. Again, these findings suggest functional overlay at a deliberate level.
So far as his further treatment is concerned, I think it is appropriate for him to continue to be taking medications (such as he is presently taking). Evidence based medicine doesn't support the use of physical therapy ad infinitum and I think that that should now be being translated into a self-administered exercise program taught to him by a physiotherapist.
On 14 February 2018, Dr David Oehme again reviewed Mr Sadikovski, finding:
Vergim has ongoing back pain. This has not improved following the surgery as expected. His sciatica has improved however he has some numbness in the left foot.
Vergim is more concerned about his neck pain and right arm brachialgia. The right CS nerve root injection made little difference to his symptoms and if anything made it worse. I again reviewed his MRI scan which shows a congenital C5/6 fusion. He has severe foraminal stenosis on the right at C3/4, C4/5 and C6/7.
I do not think operating to fix all levels is appropriate. I am keen to work out the symptomatic level. Vergim is very keen for surgery however I do not want to rush. It concerns me that he will have a poor response to surgery given his chronic pain and his response to microdiscectomy. I think he needs to see a pain specialist as he has chronic pain. I think a series of nerve root injections to determine the symptomatic level is important in the neck. I also want to get a SPECT scan to determine the source of the neck pain.
On 17 May 2018, Dr Christelis, pain specialist, requested approval from WorkCover for the following procedures as part of pain management for Mr Sadikovski. Dr Christelis diagnosed:
• Chronic widespread pain following a work-related injury at the beginning of last year but he has widespread spinal pain.
• Appropriate microdiscectomy done at lumbar level for left-sided neuropathic leg pain which has helped his proximal leg neuropathic pain but has not significantly helped his distal leg neuropathic pain.
• Multilevel stenosis cervically, particularly at the right C3-C4, C4-CS and C6-C7 with congenital CS-C6 fusion. He has had a right CS nerve root injection which made little difference to his pain.
• His main complaint currently is of axial pain. There is probably a radicular component to his pain but as you said, he has some significant factors that may reduce positive outcomes.
• Factors that will reduce positive outcomes include very little activity for the last year. He is almost housebound with very little active coping strategies, mainly passive coping strategies unable to do anything but walk around on his walker. He also is a significant smoker and he scores significantly high on catastrophising and DASS 21. All of these factors would make outcomes from spinal surgery and fusion negative.
• Very high pain scores of 8 to 10/.0. He has very high neuropathic scores as well.
• Lyrica 150 mg bd and Panadeine Forte 500 mg/ 30 mg twice a day.
• Voltaren. Please note that he is complaining of bleeding per rectum and it may be a consequence of the Voltaren so I have asked him to stop this immediately.
EXAMINATION
Revealed a very stiff spine and inability to do very much. He has some paraspinal
tenderness, lumbar bilaterally and neck right sided.
My opinion is that we need to improve upon his medications. We need to get him moving a little, even if it is just with some hydrotherapy to start with closer to home because he is doing very little if anything at the moment. Some diagnostic cervical right-sided medial branch blocks and lumber media branch block may alter us to the fact that he has some facetogenic pain which means we may be able to dial down some of his axial pain using simple techniques and therapies.
Treatment plan
• I have asked him to start moving his body.
• I will request hydro.
• Norflex 50 mg to 100 mg tds plus 2 Panadol Osteo tds.
• Duloxetlne 30 mg mane.
• 1 will request four medial branch blocks, two controlled lumbar bilateral and two
controlled right cervical.
• I have also asked him to think about stopping smoking because if he has spinal
surgery, the outcomes can even be worse.
On 7 July 2018, and on 20 September 2018, Mr Sadikovski underwent right cervical lumbar medial branch block. Dr Christie reported on 3 October 2018:
I have performed two diagnostic lumbar medial branch blocks and two diagnostic cervical medial branch blocks. Both lumbar diagnostic blocks were positive, so he would be appropriate for radiofrequency neurotomy which I have requested. The cervical diagnostic medical branch blocks, one was positive and one was negative.
On 15 November 2018, Mr Sadikovski underwent radiofrequency.
On 23 May 2019, Dr Fraser, consultant orthopaedic surgeon, in an independent medico-legal report undertaken at WorkCover’s request, opined that Mr Sadikovski had marked cervical spondylosis and mild to moderate thoracic and lumbar spondylosis.
On 5 June 2019, Dr Christelis, referred Mr Sadikovski to Dorset Rehabilitation Centre, noting and requesting consideration of further treatment:
I have known this gentleman since early 2018. He has chronic widespread pain following a work-related incident. He had a microdiscectomy. He has multilevel stenos Is cervically and a congenital cervical fusion. We have attempted to get him engaged with our Allied Health Team here at our clinic as well as he has had some negative diagnostic medical branch blocks and a lumbar radiofrequency.
He has a complex family dynamic and does not really engage and grasp the principles of pain management.
Myself and the Allied Health Team here feel he may benefit from consideration for a more formal inpatient-based pain management program, perhaps using some ketamine as an analgesic and hence feel that a referral to your services may be required.
On 29 March 2019, Ms Cate Sinclair, Occupational Therapist, advised of her examination and treatment plan for Mr Sadikovski advising:
Examination: current function:
shower: walk-in shower, wife assist Vergim to get into shower and washes himself
has fallen in shower x3, very frightened of falling again, no rail in situ
toilet: difficulty rotating trunk to reach my bottom, showered and cleaned by wife after toileting
dressing: dressed by wife
household tasks: wife does all the cooking/cleaning/shopping. Vergim feels overwhelmed and shopping venue/coffee shop
daily activities: sitting to rest/watch TV with son, occasional walk
mobility: walks independently at home, demonstrated transferring out of chair and walking short distance in consulting room. Reports he can walk 50 m, feels better when outside immersed insights/sounds, decreased attention on pain at these times. Express that if pain is cured, he would be able to return to work and activity
Treatment/plan: Vergim reported that he has received education previously. Has a high fear of movement he continues to use his left upper limb functionality.
Plan: commence with bilateral upper limb activity; provided with party to squeeze and pull between both hands, small amounts frequently during the day, stop before pain increases
assist wife with cooking: cut soft foods, stop before pain increases
On 17 May 2019, Ms Sinclair reviewed Mr Sadikovski and recommended a referral to a rehabilitation program for intensive supported rehabilitation. She observed:
Vergim continues to be focused on pain during moving and at rest.
He is either resting or engaging in activities such as walking and has difficulty understanding the concept of pacing activities. It is not clear whether this is due to language limitations or level of education.
Discuss more intensive rehabilitation program. Initially Vergim reported that he would not attend a program because the focus would on pain, and it would be too difficult to travel to such a program.
Provided education re-rehabilitation program: focus on graded movement which assists the body to recover.
Vergim wants to have a review by his back specialist.
On 17 July 2019, Dr Hong Ping Tan, Mr Sadikovski general practitioner for many years provided a medical report for Mr Sadikovski DSP claim, noting:
Vergrim first presented to our clinic on 20/03/2107 with history of sudden onset of lower back pain few days prior (16/03/2017). Pain was intense and has stopped him from working since then. He developed pain when he was working lifting a wheelbarrow and twisted his back… The pain also radiated down the left lower leg, associated with tingling sensation. He was assessed by the doctor in the clinic a CT scan of the LS spine was subsequently ordered. He was given analgesia for the pain as well.
The result of the CT scan showed a posterior circumferential disc bulge at L4/5 level with encroachment upon spinal canal.
Due to the persistent pain, he was subsequently referred to the neurosurgeon, Dr David Oehme. Physiotherapy has also been commenced during that period. He was noted to have significant neck pain as well during the course of the illness. Which he was also needing help from the surgeon and suggested the neck pain could also be due to the injury that he sustained this was investigated and found to have multi-levelled stenosis cervically, particularly at C3 –4, C4 –5 and C6 –7with congenital C5/6 fusion.
An epidural injection was performed in June 2017 which did not yield any positive outcome at all. As he did not respond very well to the injection, a subsequent microdiscectomy was performed to him on September 2017. Post operatively he has improved in term of his pain even though he has some numbness in the left foot. He has been having physiotherapy post operatively since.
He has had C5 nerve root injection done during the course of his illness with not much improvement noted in the meantime.
He was subsequently referred to see this pain specialist, Dr Nick Cristeels. He was advised to start moving its body, was also advised to go for hydrotherapy as well.
He was also given analgesia to help with this pain and been suggested for medial branch block both the lumbar and cervical neck region. These nerve blocks were subsequently being carried out in various stages over time. During the course of the illness, he has also complained of having impotent, this, presume the could be caused by the persistent back pain, chronic pain syndrome and his mental state of mind associated with the treatment and management.
Management option currently is essentially conservative, he is still under Dr Nick Cristellis follow up at present.
On 21 July 2020, Dr Tan provided the following letter for this hearing at the request of Mr Sadikovski to clarify why Mr Sadikovski has not undertaken a pain management program:
Vergim today reached out to me by telemedicine. He has requested for me to write him a letter regarding the reason of his non-attendance to the pain specialist, Dr Clayton Thomas.
Vergim came from a background of complex family dynamic as cited by the treating specialist and does not really engage and grasp the concept and principle of pain management.
His pain has been ongoing for some time, and has gone through a multidiscipline pain management program with Dr Clayton Thomas with not much improvement.
He became doubtful of the treatment offered, which is a ketamine infusion when suggested. His own word, he said he was “scared” of the further treatment.
As a consequence, he has decided not to follow the order of the specialist and stopped his follow-up with him.
On 11 December 2020, Dr Tan provided a medical certificate for Mr Sadikovski in which he diagnosed back and neck pain, noting treatment had included pain management, 4 nerve blocks and 1 nerve ablation to lower back, 3 nerve blocks and 1 cortisone injection to the neck and advising that resolving Mr Sadikovski pain would be required befor he could return to work or study.
The Respondent accepts that the Applicant’s spinal disorder was fully diagnosed during the qualification period, relying on numerous medical images, diagnosis from Mr Sadikovski’s general practitioner and numerous specialists. However, the Respondent contended that the Mr Sadikovski’s spinal disorder was not fully treated and fully stabilised during the qualification period. The Respondent argued that Mr Sadikovski had not undertaken all low risk and reasonable treatment recommend which were available to him.
The Respondent relied upon the report of Dr Christelis dated 5 June 2019 (the day after lodging the claim for DSP) which referred Mr Sadikovski to Dr Clayton Thomas at the Dorset Rehabilitation Centre, noting that Dr Christelis who had been treating Mr Sadikovski since 2018 and had opined that Mr Sadikovski did not engage or grasp the principles of pain management. The Respondent noted Dr Christelis was referring Mr Sadikovski to Dr Thomas because:
Myself and the Allied Health Team here feel he may benefit from consideration for a more formal inpatient-based pain management program, perhaps using ketamine as an analgesic.
The Respondent argued that Mr Sadikovski has refused to undertake the treatment recommended by Dr Christelis. The Respondent argued that Dr Tan’s letter dated 21 July 2020, prepared for this hearing, did not corroborate Mr Sadikovski claim. Dr Tan had advised he did not have to undertake treatment if he did not want to, instead noting the letter clearly stated it was Mr Sadikovski who had decided not to follow the order of the specialist and stopped his follow up with him. The Respondent contended it was Mr Sadikovski’s own evidence that he had not pursued Dr Christelis’ recommended treatment plan because his treating doctor had verbally advised him that it was up to him if he wanted to proceed and that he was “too scared” to undertake this recommended treatment plan.
Furthermore, the Respondent argued there was no evidence that Mr Sadikovski general practitioner, Dr Tan, had advised him that he should not undertake the treatment or state that it would be unlikely to result in significant functional improvement. The Respondent argued that Dr Tan’s letter of 21 July 2020 only states Mr Sadikovski reasons for why he has chosen not to undertake the further treatment, with Dr Tan observing that Mr Sadikovski “does not really engage and grasp the concept and principle of pain management”.
The Respondent argued in circumstances where Dr Christelis had recommended and referred Mr Sadikovski during the qualification period for a more formal inpatient based pain management program to improve his symptoms and loss of function, that Mr Sadikovski’s spinal disorder could not be consider fully treated and fully stabilised at the qualification period.
The Respondent further contended that treatment via a pain management clinic is a low risk and “reasonable treatment” for Mr Sadikovski’s spinal pain and there was no evidence that suggests that treatment via a multi-disciplinary pain management clinic would be unlikely to result in significant functional improvement. The Respondent argued that such intervention was recommended by a pain specialist and supports a finding that the specialist considered such intervention would likely assist Mr Sadikovski.
The Respondent took the Tribunal to the matter of Newman and Secretary, Department of Family and Community Services [2002] AATA 917, where Member Carstairs found (at [31] – [32]):
31. Pain management has been recommended to the applicant by three medical practitioners, and is a common form of treatment for intractable back pain. The Tribunal does not accept the submission of the applicant that it does not fall within the concept of treatment under the Act. As the words in the Act set out, reasonable treatment is taken to be treatment that is feasible and accessible and where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient.
32. The Tribunal accepts the submission made by Mr Perdon that the SSAT was correct in deciding that the condition was not one where the condition was treated and stabilised. The Tribunal is not satisfied, where treating doctors have recommended a course of pain management program and this has not occurred, that the requirements of the Act can be met.
And then to the matter of Smalldon and Secretary, Department of Social Services [2015] AATA 2, where Dr Denovan (a medical practitioner), held (at [16]) that:
As all Ms Smalldon’s impairments relate to pain, or the effects of that pain, I consider it inappropriate to regard any of her conditions as permanent until she has at least completed a course of pain management at a recognised pain clinic. It is usual for pain management clinics to address the very problems Ms Smalldon complains of, and to help chronic pain suffers cope with the pain and the effects of chronic pain. Dr Vecchio is not a pain specialist, nor is he an occupational physician. It is not unusual for persons who have applied for DSP to be referred to pain clinics, and as a rule, it is usual for a finding that the conditions associated with that pain are not fully treated until after the pain management options have been fully explored. I do not find anything in Dr Vecchio’s brief letter to persuade me that Ms Smalldon’s circumstances present a reason to depart from this established position. Until Ms Smalldon has completed a pain management course, and a specialist form pain management verifies that her treatment has been optimised, the conditions causing her impairment cannot be said to be fully treated.

The Respondent argued these authorities supported their contention that as Mr Sadikovski had not undertaken reasonable treatment, including the review by Dr Thomas and the associated pain management course, and therefore, the Tribunal ought not be satisfied that the condition was fully treated and stabilised at that time.
The Respondent argued that should the Tribunal find that Mr Sadikovski’s spinal disorder was FDTS during the qualification period, (which they did not conceded) then the appropriate Impairment Table to rate the functional impact of this condition was Table 4 – Spinal Function.
The Respondent argued that Mr Sadikovski’s functional impairment resulting from his spinal condition based on the evidence before the Tribunal only attracted 10 points under Table 4 during the qualification period. Noting:
(a)Associate Professor Buzzard’s report dated 7 February 2018 found that the examination of the cervical spine was such that forward flexion was 30 degrees, extension was zero degrees, lateral flexion in each direction was negligible and rotation in each direction was 20 degrees. Associate Professor Buzzard noted that there was a greater range of movement on casual observation. Associate Professor Buzzard measured forward flexion of the lumbar spine to be 60 degrees, zero degrees on extension, lateral flexion in each direction was 10 degrees and rotation in each direction was negligible. Noting that Mr Sadikovski has functional overlay with a gross degree of it being at a deliberate level and reporting that the surveillance material supported that there was a functional overlay at a deliberate level;
(b)Cate Sinclair, occupational therapist, report dated 29 March 2019, noted that Mr Sadikovski walks independently at home with a walker, can walk 50 metres, can transfer out of a chair, spends a lot of the day sitting down and resting/watching television;
(c)Dr Fraser’s report dated 23 May 2019, noted that upon examination of Mr Sadikovski, his range of forward flexion, lateral flexion and lateral rotation was limited to less than 10% of the expected range in every direction and he could not demonstrate any extension; and
(d)Mr Sadikovski had told an Agency assessor, for the purposes of an Employment Services Assessment Report on 20 December 2019, that he can sit for no more than 20 minutes, he can walk for 60 minutes with the use of the walker, that he can stand for no more than 10 minutes and that he is unable to bend and lift anything at all.
Based on this medical evidence, the Respondent therefore contented there was insufficient evidence that during the qualification period, Mr Sadikovski was unable to:
(a)Perform any overhead activities; or
(b)Turn his head, or bend his neck, without moving his trunk; or
(c)Bend forward to pick up a light object from a desk or table; or
(d)Remain seated for at least 10 minutes.
Therefore, they argued that Mr Sadikovski does not meet the descriptors for the 20 points rating under Table 4 of the Impairment Tables, arguing he may at best satisfy the descriptors for 10 points rating under Table 4.
At the hearing, Mr Sadikovski gave evidence that during the qualification period:
·he was not driving and relied upon others including taxis to get him to all his medical appointments;
·he was in constant pain and the pain radiates down his leg, he suffers pins and needles in his left leg and numbness on the foot;
·he is unable to walk without the assistance of his walker;
·he cannot walk far with his walker, goes around the block twice a day which takes 30 to 40 minutes once in the morning and at night;
·cannot sit for long, in the taxi to his doctors is about a 3-minute drive;
·that he watches TV for 20 minutes but then he must lie down;
·that he goes into the garden but cannot do any gardening, he sits on his walker has a cigarette and his wife brings him a coffee;
·he cannot bend, he struggles to pick up a cup, he is forever dropping things and cannot tell how many coffee cups he has broken;
·he cannot turn his neck he uses his walker to turn around to check things;
·he needs assistance when he is walking from the car into his appointments;
·he cannot stand for long; and
·does nothing any longer around the home and is totally reliant on his wife for everything, even wiping his bottom.
Mr Sadikovski disputed his condition was not fully treated or stabilised as he had undergone an enormous amount of treatment for his back pain, including surgery, injections, physiotherapy and medication but nothing had worked. Further, Mr Sadikovski argued he could not be forced to undertake treatment he did not want to, that he was scared to have any more injections as none had worked, indeed he argued they had made matters worse and he was terrified if he did more he may never walk again. Mr Sadikovski also argued that not one of his treating doctors had been able to guarantee 100% that the pain management treatment was going to reduce his pain levels or improve his functionality so he could return to any form of work.
Having considered all the evidence before it, the Tribunal is satisfied that Mr Sadikovski’s long-standing condition of lower back pain was fully diagnosed during the qualification period, noting the 2017 MRI Cervical spine undertaken on Mr Sadikovski which concluded there was multilevel degenerative changes seen.
The Tribunal also considers the condition was fully treated and stabilised during the qualification period, relying upon the extensive report of Dr Tan dated 17 July 2019, prepared for Mr Sadikovski’s DSP application which indicates the significant amount of treatment Mr Sadikovski has undertaken since he suffered his workplace accident in 2017 and that the management of the injury was essential conservative. The report also indicated that Mr Sadikovski had already undertaken a pain management program with Dr Christelis.
The Tribunal did not consider that Mr Sadikovski refusal to undertake a second pain management program indicated his condition was not fully treated or stabilised. Whilst the Tribunal concurs with all the medical opinion that Mr Sadikovski would benefit from such a program, it did not consider his refusal to engage in the program meant that the Tribunal was bound to find that his condition was not fully treated and stabilised.
The Tribunal in arriving at its finding that the condition was FDTS, consider that for the purposes of paragraph 6(7) of the Impairment Tables, “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.
The Tribunal considered that the treatment could not be considered at a reasonable cost to Mr Sadikovski as he had been referred to Dorset Rehabilitation Centre, a private provided, after his WorkCover payments had ceased. There was no indication from any of Mr Sadikovski’s treating doctors that they had referred him to a publicly available pain management clinic or any indication of timelines to access this service.
Whilst the Tribunal considered that pain management treatment is low risk and is regularly performed on individuals, it did not concur that it had a high success rate as the rate of success is very dependent on the individual undertaking the program. Indeed, Dr Christelis’s request for the referral to Dorset Rehabilitation Centre had been on the basis that Mr Sadikovski had failed to engage with his allied health team. Mr Sadikovski had already failed to benefit from undertaking a pain management program. The Tribunal did not find that if Mr Sadikovski undertook a pain management program, he could be reliably expected to have a substantial improvement in functionality. The program, if available locally at a public hospital, may assist in managing Mr Sadikovski’s pain better, however, the Tribunal was sceptical that given his complete resistance to any pain management techniques, including those recommended by Ms Sinclair such as pacing techniques, that any program would restore him to a level of functionality where he could undertake any form of employment.
The Tribunal considered that Mr Sadikovski’s fear of having any more injections in his spine was reasonable given his negative reaction to date to numerous procedures already performed and noted that whilst his treating specialist had tried to allay these fears, none had been able resolve Mr Sadikovski’s associated functional overlay.
The Tribunal finds that Mr Sadikovski’s condition of lower back pain was having a moderate impact on his functionality during the qualifying period, as he self-reported and as corroborated by his treating medical practitioners. The Tribunal noted his inability to sit for at least 30 minutes, to drive, to turn his neck, to stand for long periods, to bend and to lift objects.
The Tribunal assigns 10 points under Table 4 – Spinal Function for this condition, as the impact of this condition was causing Mr Sadikovski moderate difficulty with sitting, standing and lifting objects. However, the Tribunal did not consider the condition severe, as Mr Sadikovski was able to remain seated for at least 10 minutes and did not report any inability to perform overhead activities.
Lower limb condition
The Respondent noted that Mr Sadikovski’s medical evidence indicates he has difficulty walking and standing. However, the Respondent argued there was a lack of evidence of a diagnosis of a condition that affects lower limb functioning or any treatment and therefore, Mr Sadikovski’s lower limb condition could not be consider FDTS.
The Respondent argued that should the Tribunal find that Mr Sadikovski ‘s lower limb condition was FDTS during the qualification period, then the functional impairment arising from a lower limb condition would be no more than 10 points under Table 3. The Respondent argued this assessment was based off Mr Sadikovski’s statement that he can walk independently with his walker for up to 60 minutes and that he can stand for 10 minutes and they accept Mr Sadikovsk is unable to walk far outside his home and needs to drive or get other transport to local shops or community facilities (10(1)(a) Impairment Table); and moves around independently using walking aids (10(3)(a) Impairment Table).
The Respondent contends that the Applicant cannot be assigned 20 points rating under Table 3 because there is no evidence that he is unable to do any of the following:
(a)walk around a shopping centre or supermarket without assistance;
(b)walk from the carpark into a shopping centre or supermarket without assistance; and
(c)stand up from a sitting position without assistance.
The Tribunal consider that Mr Sadikovski’s lower limb pain had been diagnosed and identified by Dr Tan in his report of 17 July 2019, where he stated:
… The pain also radiated down the left lower leg, associated with tingling sensation. He was assessed by the doctor in the clinic a CT scan of the LS spine was subsequently ordered. He was given analgesia for the pain as well.
The result of the CT scan showed a posterior circumferential disc bulge at L4/5 level with encroachment upon spinal canal.
The Tribunal considered that Mr Sadikovski’s lower limb pain was also fully treated and stabilised as he had undergone a microdiscectomy done at lumbar level for left-sided neuropathic leg pain, physiotherapy and pain management treatment.
The Tribunal finds that Mr Sadikovski’s condition of lower back pain was having a moderate impact on his functionality during the qualifying period, as he self-reported and as corroborated by his treating medical practitioners. The Tribunal noted his inability to walk unaided, to drive and to stand for long periods.
The Tribunal assigns 10 points under Table 3 – Low Limb Function for this condition, as the impact of this condition was causing Mr Sadikovski moderate difficulty with walking far outside his home and he needed to be driven to all his appointments. However, the Tribunal did not consider the condition severe as Mr Sadikovski was able to stand from a sitting position.
IMPAIRMENT RATING
The Tribunal finds that Mr Sadikovski has an overall impairment rating of 20 points comprising of 10 points allocated under Table 4 (Spinal Function) and 10 points under Table 3 (Lower Limb Function). Therefore, during the qualifying period Mr Sadikovski satisfied section 94(1)(b) of the Act.
DOES MR SADIKOVSKI HAVE A CONTINUING INABILITY TO WORK?
To qualify for the DSP, Mr Sadikovski must not only satisfy the requirement that he has impairments that can be assigned 20 points or more under the Impairment Tables, he must also demonstrate that he has a continuing inability to work. Mr Sadikovski would be considered to have a continuing inability to work if he has actively participated in a program of support within the meaning of section 94(3C) of the Act prior to his claim for DSP, and his impairment is of itself sufficient to prevent him from improving his capacity to prepare for, find or maintain work through continued participation in the program. A person with a severe impairment is not required to satisfy the Respondent that they have actively participated in a program of support. A person’s impairment is a severe impairment if it attracts 20 points or more under a single Impairment Table.
The Tribunal strictly applies the program of support requirement, finding that no power exists to dispense it with the operation of section 94(2)(aa) of the Act. It is irrelevant whether an Applicant was aware of the requirement.
The POS Determination requires that an Applicant for DSP must actively participate in the program for 18 months within the three years prior to the date of claim. As the Tribunal has not found that Mr Sadikovski has a severe impairment that is assigned 20 points or more under a single Impairment Table, he is required to have participated in a program of support.
The Respondent contended that Mr Sadikovski did not satisfy section 94(2)(aa) of the Act during the qualification period, as his Centrelink records indicated that he had participated in a POS for 218 days, and this was less than the required 18 months in accordance with requirements of paragraph 7(2) of the POS Determination. Further, the Respondent argued there was no evidence that Mr Sadikovski had completed a POS that was less than 18 months (in accordance with paragraph 7(3)) nor was there any evidence that Mr Sadikovski’s POS was terminated because he was unable, solely because of his impairment, to improve his capacity to prepare for, find or maintain work through a continued participation in the POS. Further, there was no indication on the evidence that Mr Sadikovski was prevented, solely because of his impairment, from improving his capacity to prepare for, find or maintain work through participation in a POS.
Accordingly, the Respondent argued that Mr Sadikovski did not satisfy paragraph 94(2)(aa) of the Act during the qualification period and on that basis, contended that Mr Sadikovski did not satisfy paragraph 94(1)(c) of the Act during the qualification period.
The Tribunal finds that Mr Sadikovski could not be exempted from the POS requirements in accordance with section 7(4) of the POS Determination, as it could not be said he was unable solely because of his impairment from improving his capacity to prepare for, find or maintain work. The Tribunal relied upon the reports of Associate Professor Buzzard, Dr Fraser and the JCA who had all observed that with assistance Mr Sadikovski had capacity to work.
The Respondent contended that the Tribunal could not be satisfied that Mr Sadikovski had a continuing inability to work during the qualification period as his impairments did not prevent him from:
(a)Undertaking work independently of a program of support for at least 15 hours per week within the next two years; or
(b)Undertaking a training activity that would enable him to work independently of a program of support for 15 hours per week within the next two years.
The Respondent relied upon the JCA report dated 9 July 2020, which assessed Mr Sadikovski as having a capacity for work within two years with intervention of 15 to 22 hours per week in light, less skilled work such as light sales work or other office-based work. The Respondent contended that the opinion of the trained and qualified job capacity assessor employed by the Agency should be accepted in relation to Mr Sadikovski’s capacity to work.
The Respondent argued the job capacity assessor has:
(a)specialised knowledge and experience in identifying barriers to employment;
(b)interventions;
(c)available programs;
(d)suitable occupations to determine a person’s capacity to work;
(e)has knowledge of labour market issues and experience in assessing the impact of medical conditions on a person’s ability to work; and
(f)is in the best position to properly determine the applicant’s capacity to perform any work or to undertake educational or vocational training.
The Tribunal relies upon the Rules for applying the Impairment Tables at point 7:
Information that must be taken into account in applying the tables
(a)the information provided by the health professionals specified in the relevant tables: and
(b)any additional medical or work capacity information that may be available; and
(c)any information that is required to be taken into account under the Tables; including as specified in the introduction to each Table.
The Tribunal noted the JCA of 9 July 2020, undertaken following Mr Sadikovski’s request for a review of his DSP rejection note the following in respect to Mr Sadikovski work capacity:
Barriers to be addressed
Barrier: Limited work goals
Barrier: No or limited work skills
Barrier: Physical limitations restricting type of work
Barrier: Transport issues
Barrier: Chronic pain
Barrier: Endurance limitations
Barrier: Limited physical abilities
Barrier: Mobility restrictions
Rationale:
Due to an exacerbated Spinal condition the client has a reduced work capacity of (0-7) hours per week for the next (6) months. The client would have difficulty engaging in employment at present due to more severe symptoms of chronic lower back and neck pain. Some improvement in functioning is hoped for over this period of time with appropriate health care such as attending an inpatient pain management program. The medical certificate exemption period has been extended to allow more time for treatment and improvement.
Due to limited physical endurance associated with a permanent Spinal condition the client is considered to have a baseline work capacity of 8-14 hours per week. The client may have difficulty managing more hours of employment without intervention due to chronic lower back and neck pain, limited standing and sitting tolerance, limited physical abilities, and limited ability to engage in prolonged work activities.
With interventions such as workplace assessment and modifications, on the job training, and individually tailored support to help obtain and maintain a suitable type of employment, work capacity may increase to 23-29 hours per week. Despite having a permanent Spinal condition that has a significant impact on functioning, the client may be able to manage this amount of employment in a suitable type of work and in a supportive work environment with disability supports in place.
The Tribunal notes the often relied on authority in Muir and Secretary, Department of Employment and Workplace Relations [2005] AATA 902, where the Tribunal stated at [43]:
The Tribunal agrees with the contention of the respondent that it does not matter whether the work capacity assessor does or does not hold any relevant medical qualifications as the work capacity assessor performs his or her task on the basis of accepting the conclusions and findings of other medical personnel and then determines whether or not the person been assessed does or does not have the requisite work capacity within the meaning of section 94(1)(c) of the Act.

The task of the JCA is to base their determination on assessing the findings of medical professionals. The JCA is generally preferred because the assessor has specialised knowledge and experience in “identifying barriers to employment, interventions, available programs and suitable occupations to determine a person’s impairment rating and work capacity”.
Mr Sadikovski was adamant he had no capacity to work, stating repeatedly how could he work or who would hire him when he must utilise a walking frame to get around. He stated his general practitioner Dr Tan had advised he could not work and was providing him with medical certificates which indicated he had no capacity for work. The Tribunal noted Dr Tan’s report of 17 July 2019 stated:
He currently has no capacity to go back to his preinjury duties. He is now relying on a wheeled walking frame from ability with the help of his children. Taking into consideration of his age, education skill, he will be most likely unable to return to his work permanently to suitable employment.
Associate Professor Buzzard’s report of 7 February 2018, concluded that whilst Mr Sadikovski’s had no capacity for work at the time of his review he did not believe this was permanent, concluding:
I do appreciate the surveillance material that you have sent me. I am of course unable to positively identify Vergim Sadikovski from that surveillance material but assuming that the person being surveyed was indeed Mr Sadikovski, it would appear that the surveillance material supports the diagnosis of functional overlay at a deliberate level.
So far as his further treatment is concerned, I think it is appropriate for him to continue to be taking medications (such as he is presently taking). Evidence based medicine doesn't support the use of physical therapy ad infinitum and I think that that should now be being translated into a self-administered exercise program taught to him by a physiotherapist.
So far as his employment capacity is concerned, taking into account the totality of his presentation, it is still reasonable to accept that he is not able to work. I still don't think that this can be accepted as a permanent situation because of the functional overlay at a deliberate level. I think this needs to be kept under close review. I would appreciate the opportunity of having any other information that you may have for me to review.
Dr Fraser’s report of 23 May 2019 opined that Mr Sadikovski had a capacity to return to work, observing:
He has pre-existing congenital spinal fusion in the cervical region. He has pre-existing marked cervical spondylosis and mild to moderate thoracic and lumbar spondylosis affecting his return to work. I am of the opinion that there are other psychosocial factors which are preventing him from returning to work.
The Tribunal concluded on all the variable evidence, that with appropriate support and training to address Mr Sadikovski’s identified barriers to employment, he may be able to manage a reduced amount of employment in a suitable type of work and in a supportive work environment with disability supports in place. The Tribunal found Mr Sadikovski had not completed a POS, had no grounds to be exempted from undertaking a POS and did not have a continuing inability to work. The Tribunal therefore found Mr Sadikovski had not satisfy either section 94(2)(aa) or section 94(1)(c) of the Act during the qualification period.
CONCLUSION
Having carefully considered all the evidence, the Tribunal finds that at the time of his DSP application of 4 June 2019, Mr Sadikovsk did have the required 20 impairment points to satisfy section 94(1)(b) of the Act, but had not completed a POS and did not have a continuing inability to work. Without having a severe impairment, Mr Sadikovski cannot have met all the requirements to be eligible for the DSP and therefore the application cannot succeed.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 102 (one hundred and two) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke AO, Member

….[sgd].......................................
Associate
Dated: 17 June 2021

Date of hearing:

21 April 2021

Applicant:

By telephone

Advocate for the Respondent:

Mr Defranciscis

Solicitors for the Respondent: Sparke Helmore Lawyers

[2021] AATA 1791

17 June 2021

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Jurisdiction

Procedural Fairness

Standing

Statutory Construction

Date of hearing:	21 April 2021
Applicant:	By telephone
Advocate for the Respondent:	Mr Defranciscis
Solicitors for the Respondent:	Sparke Helmore Lawyers