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

Siljanovski and Secretary, Department of Social Services (Social services second review) [2015] AATA 646 (28 August 2015)

Division

GENERAL DIVISION

File Number

2015/0079

Re

Natalija SILJANOVSKI

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal
Mr C Ermert, Member

Date 28 August 2015

Place Melbourne
The Tribunal sets aside the reviewable decision and in substitution decides that Mrs Siljanovski qualifies for the receipt of the Disability Support Pension.
.........................................
Mr C Ermert, Member
SOCIAL SECURITY – disability support pension – whether conditions fully diagnosed, treated and stabilised within the qualification period – whether conditions permanent –a continuing inability to work – decision set aside.
Legislation
Administrative Appeals Tribunal Act 1975
Social Security Act 1991
Social Security (Administration) Act 1999
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Mr C Ermert, Member
INTRODUCTION

On 5 February 2014 Mrs Siljanovski, the Applicant, lodged a claim for Disability Support Pension (DSP) with Centrelink. (Centrelink is the service provider for the Department of Social Services, the Respondent.) In her claim, Mrs Siljanovski listed her disabilities as:
Injuries – Neck, Back, Arms, Hands, Knees, Feet, Hiatus Hernia with Reflux, High Blood Pressure.
On 20 March 2014 a Centrelink officer rejected Mrs Siljanovski’s claim because she had not actively participated in a program of support to help her find and keep work. Mrs Siljanovski requested a review of the decision by an authorised review officer (ARO) of Centrelink. On 26 August 2014 the ARO affirmed the original decision to reject the claim.
Mrs Siljanovski requested a review of the ARO’s decision by the Social Security Appeals Tribunal (SSAT). On 24 November 2014 the SSAT affirmed the ARO’s decision. On 2 January 2015 Mrs Siljanovski applied to this Tribunal for a review of the SSAT’s decision.
HEARING
At the hearing, Mrs Siljanovski represented herself, with the assistance of an interpreter. She was supported by her son, Mr David Siljanovski. Ms Anna-Lisa Short, of Sparke Helmore Lawyers, represented the Respondent.
I had before me the documents provided by the Respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents).
For Mrs Siljanovski, I took in:
·The medical report by Dr Tim Bennett, a rheumatologist, dated 12 May 2015 (Exhibit A1);
·The medical report by Dr Harold Lifson, her general practitioner (GP), dated 27 June 2015 (Exhibit A2); and
·A further report by Dr Lifson, dated 15 July 2015 (Exhibit A3).
For the Respondent I took in the Secretary’s Statement of Facts, Issues and Contentions dated 26 June 2015.
LEGISLATION
The legislation relevant to this matter is contained in the Social Security Act 1991 (the Act).
Section 94 of the Act relevantly prescribes the qualifications for DSP:
(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;
…
(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa)in a case where the person's impairment is not a severe impairment within the meaning of subsection (3B)…the person has actively participated in a program of support within the meaning of subsection (3C)
…
(5)In this section:
"program of support" means a program that:
(a)is designed to assist persons to prepare for, find or maintain work; and
(b)either:
i.      is funded (wholly or partly) by the Commonwealth; or
ii.     is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.
A person’s impairment is assessed by reference to the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011) (the Impairment Tables).
QUALIFICATION PERIOD
Sections 41 and 42 and Schedule 2 of the Social Security (Administration) Act 1999 (the Administration Act) provide that the date for the determination of the claim is the date of the claim. The only exception is where a person is not qualified on the date of claim but becomes qualified within 13 weeks of lodging the claim, in which case their start day is the day they become qualified.
In this case, the date of the claim is 5 February 2014. Accordingly, I find the qualification period is from 5 February 2014 to 7 May 2014.
ISSUES
The issues are whether, during the qualification period, Mrs Siljanovski:
1had any physical, intellectual or psychiatric impairments; and, if so
2the impairments attracted a rating of 20 points or more under the Impairment Tables; and, if so
3she had a continuing ability to work.
EVIDENCE
Mrs Siljanovski chose to give her evidence in the form of answers to questions from Ms Short.
She described the conditions which affect her most as follows:
·Pain all over her body;
·Pain in her neck, shoulder and arm;
·Pins and needles in her hand;
·Inability to hold a glass, do up buttons, open a bottle or cut up her food;
·Complete lack of strength;
·Needing help with putting on her socks, needing a chair over the toilet, and having to use a long shoehorn when putting on her shoes;
·Difficulty turning over in bed;
·Taking a lot of medications;
·Not knowing where she is when she gets up in the mornings;
·Inability to do her hair and needing her husband to help her to dress; and
·Crying most days.
Mrs Siljanovski said her lower back pain was first diagnosed in 1997. She saw Dr Markov, a rheumatologist, from 1997 to 1999. She was prescribed medications, and spent 10 days rehabilitation at Cedar Court Hospital. She said the treatment has not been successful as she still suffers pain in her lower back. Mrs Siljanovski said her back has not improved since the qualifying period. For treatment she is only taking pain tablets and consulting her GP.
Referring to the Job Capacity Assessment (JCA) report of 14 March 2014 (T-12) Ms Short asked if Mrs Siljanovski is able to drive a car. Mrs Siljanovski said she could drive to the local shops which were only five minutes away but she does not drive anywhere else. She said her car has an automatic transmission. She can look over her shoulder but it is very difficult. She uses the central mirror.
Mrs Siljanovski confirmed as correct her evidence to the SSAT (T-3, pages 8 and 9) that she has difficulty sitting or standing for more than 15 minutes and picking up a light object at knee height. She said that was also the situation during the qualifying period. Mrs Siljanovski also confirmed that she told the SSAT that she dresses herself but said doing this is getting harder. She said she is unable to pull a jumper over her head, so her husband helps. Mrs Siljanovski said that she can do grocery shopping on her own, using a shopping trolley for support. She said she picks up only those items within reach and her husband does the rest. Mrs Siljanovski said her back condition has deteriorated since the qualifying period.
In regard to her neck and upper limb condition Mrs Siljanovski said she has had the pain for a long time but always hoped that it would improve. She said her GP, Dr Lifson, referred her for an x-ray of her cervical spine after which he referred her to Dr Bennett. Mrs Siljanovski said that the only treatment prescribed was medications. She said the doctors had told her that nothing else could be done to help.
Ms Short put to Mrs Siljanovski that to drive her car she needs to use both arms and hands. In response Mrs Siljanovski said that she uses mostly her left arm while driving.
When asked about other restrictions on her daily activities Mrs Siljanovski said that her whole life was turned upside down and she can no longer do any work.
In regard to her lower limb condition Mrs Siljanovski agreed with the JCA report (T-12) that she had difficulty with standing and walking. She said that during the qualifying period she did not use a walking stick while inside her house but she did use one when outside.
In regard to her hypertension Mrs Siljanovski agreed with Dr Lifson’s opinion of in his report dated 5 February 2014 (T-11) that her hypertension was well managed although she sometimes feels dizzy. Ms Short referred to the JCA report of the (T-12) which noted that the condition was still not under control. Mrs Siljanovski said that, at the time, her doctor was changing the medication. She agreed that at the qualifying period her hypertension was still being treated and investigated.
In regard to her psychiatric condition Mrs Siljanovski said that she experienced a lot of stress during the qualifying period but was not seeing a psychiatrist or clinical psychologist at the time. She said she was not undergoing treatment.
When asked about employment Mrs Siljanovski said she was last employed in January 2014, working with her husband as a cleaner. She said that her husband did most of the work. She agreed that, in July 2014, Centrelink sent her to the employment services provider Matchworks at Werribee. Mrs Siljanovski disagreed with the JCA report that she could work 15 to 22 hours per week, saying she is not able to work at all.
TRIBUNAL CONSIDERATIONS
Impairment Ratings
It is conceded by the Respondent, correctly in my opinion, that during the qualifying period Mrs Siljanovski had impairments from the following conditions, which satisfied the requirements of section 94(1)(a) of the Act:
1Neck and upper limb condition;
2Lower back condition;
3Lower limb condition;
4Hypertension; and
5Psychological condition.
The concession is in accordance with the evidence and I find accordingly.
I must now determine whether Mrs Siljanovki’s impairments attract an impairment rating of 20 points or more under the Impairment Tables according to section 94(1)(b) of the Act.
Section 6(3) of the Impairment Tables provides that a rating can only be assigned to an impairment if the person’s condition is permanent and the impairment is likely to persist for more than two years. Section 6(4) provides that a condition is permanent if the condition has been fully diagnosed by an appropriately qualified medical practitioner, and has been fully treated and stabilised.
Section 6(5) of the Impairment Tables provides that, for a condition to be fully diagnosed and treated by an appropriately qualified medical practitioner, the following must 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.
I will consider each condition in turn.
Neck and Upper Limb Condition
In her submissions Ms Short restated the contention in the Secretary’s Statement of Facts, Issues and Contentions that the condition is fully diagnosed, treated and stabilised. In support of the Respondent’s contention she cited the following:
·Dr Lifson’s report dated 5 February 2014 (T-11), which records the condition of Injury – neck, lower back, arm and hands with 1997 as the date of onset. Dr Lifson noted that the diagnosis was confirmed by Dr Geoff Markoff, rheumatologist.
·An x-ray of the cervical spine (T-15) dated 11 April 2014, which reported marked disc space narrowing…hypertrophic spondylosis…apophyseal joint degenerative changes…considerable loss of joint space...neuro-central joint arthropathy.
·A medical certificate by Dr Lifson, dated 15 April 2014 (T-16) which recorded the diagnosis Severe OA [osteoarthritis] cervical and lumbar spine, arms, hands & feet post injuries…Prognosis – Symptoms are: Likely to deteriorate within 2 years.
·The JCA report dated 14 March 2014 (T-12) which recorded the condition as: Fully Diagnosed; Fully Treated; Fully Stabilised…Treatment to date: physiotherapy (3 years)…pain management rehabilitation (both inpatient and outpatient) at Cedar Court, rheumatologist intervention (Dr Geoff Maher [sic]), medication, home exercise program. Current treatment: medication (NSAID), home exercise program. Future Treatment: …possible further physiotherapy… This condition is considered FDTS as the client has had reasonable treatment for this condition.
I consider that the evidence supports the Respondent’s contention. I find that, at the qualifying period, the condition was permanent and likely to persist for more than two years, and that it was fully diagnosed by an appropriately qualified medical practitioner, fully treated and fully stabilised.
In considering evidence regarding the impairment resulting from this condition I am constrained by the provisions contained in the Introduction to Table 2 – Upper Limb Function that Self-report of symptoms alone is insufficient. There must be corroborating evidence of the person’s impairment.
Relevant corroborating evidence is contained in:
·Dr Lifson’s report of dated 5 February 2014 (T-11) which documents difficulty with…picking up light objects… lids on bottles, unable to walk far outside home, unable to sustain overhead activities… bend forward to pick up objects… unable to do overhead… (unreadable);
·The JCA report dated 14 March 2014 (T-12) which records Upper Limb Function Recommended Rating: 10[:] There is a moderate functional impact on activities using hands or arms. (1) The person has difficulty with most of the following: (c) holding and using a pen or pencil; (d) doing up buttons or tying shoelaces; (e) using a standard computer keyboard; (f) unscrewing a lid on a soft-drink bottle… She states she is unable to hold the grocery bags due to her hands…The client is independent with personal care but at times may require assistance with dressing the lower body. The client is able to drive local distances. The client reports she can complete dusting at home, otherwise most other tasks are completed by her husband. The client reports difficulties with fine motor skills such as doing up buttons and zips and writing with a pen. The client has limited strength in her hands which result in dropping items as well as inability to cut vegetables. The client is unable to open a bottle. The client has lever taps at home which she is able to use.
From the evidence I accept that Mrs Siljanovski’s impairments meet the descriptors for a moderate functional impact as described in Table 2, attracting a rating of 10 points.
The descriptors for a severe functional impact, attracting 20 points, state:
(1)Most of the following apply to the person:
(a)    the person has limited movement or coordination in both arms or both hands, or has an amputation rendering a hand or arm non-functional;
(b)    the person has severe difficulty handling, moving or carrying most objects even when using or wearing any prosthesis or assistive device that they have and usually use;
(c)    the person has difficulty using a computer keyboard despite appropriate adaptations;
(d)    the person has severe difficulty using a pen or pencil;
(e)    the person has severe difficulty turning the pages of a book without assistance.
I note the evidence in the JCA report that Mrs Siljanovski can drive short distances. In her evidence Mrs Siljanovski confirmed that she drives a car to the local shops, adding that she mostly uses her right hand. However, driving to local shops and parking a car require considerable arm movement, generally with both arms and hands. I consider the available evidence does not support the descriptor limited movement or coordination in both arms or both hands.
Dr Lifson recorded a difficulty in lifting light objects. The JCA records limited strength in Mrs Siljanovski’s hands, resulting in her dropping items, as well as an inability to cut vegetables. This aligns with Mrs Siljanovski’s evidence of dropping shopping bags. I accept the evidence shows that she has severe difficulty in handling, moving or carrying most objects.
The JCA records that Mrs Siljanovski has difficulty using a computer keyboard. I accept that opinion.
The JCA records that Mrs Siljanovski has difficulty using a pen or pencil, however she herself does not describe the difficulty as severe. I have no evidence that Mrs Siljanovski has severe difficulty turning the pages of a book without assistance.
As a result I am unable to conclude that most of the descriptors of a severe functional impact apply to Mrs Siljanovski.
I find that the correct impairment rating for this condition is 10 points, corresponding to moderate functional impact.
Lower Back Condition
Ms Short restated the contention in the Respondent’s Statement of Facts, Issues and Contentions that this condition is fully diagnosed, treated and stabilised. In support of this contention the Secretary cites numerous records in the T-documents containing referrals to rheumatologist Dr Markov, rehabilitation treatment both as an in-patient and out-patient at Cedar Court, radiological reports and x-rays, a diagnosis by her GP, Dr Lifson (supported by Dr Markov), and medical certificates. The citations are contained in section 4.32 of the Respondent’s Statement of Facts, Issues and Contentions and I have not repeated them here.
I consider that the evidence supports the Respondent’s contention. I find that, at the qualifying period, Mrs Siljanovski’s lower back condition was permanent and likely to persist for more than two years. I find that it was fully diagnosed by an appropriately qualified medical practitioner, fully treated and fully stabilised.
In considering the applicable impairment rating I have regard to the following corroborated evidence:
·The JCA report dated 14 March 2014 (T-12) recommending a rating of 10 points from Table 4 – Spinal Function, noting:
There is a moderate functional impact on activities involving the spinal function.
(1) The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:
(a)the person is unable to sustain overhead activities (e.g. accessing items over head height):
...
(c)the person is unable to bend forward to pick up a light object placed at knee height…the client’s back condition causes limitation in bending lifting ad [sic] carrying capacity. The client reports she can go grocery shopping with the use of the trolley, walking and standing capacity is limited due to the client’s back condition. ...
·The report of rheumatologist Dr Bennett dated 12 May 2015 (Exhibit A1) in which he records:
According to…Table 4 (Spinal Function), the degree of functional impairment Mrs Siljanovski experiences is classed as severe…
[She] has marked difficulties with most aspects of daily activities of living. She is independent with showering but does require assistance with dressing. She is reliant upon friends and family to assist with domestic activities such as meal preparation, laundry and cleaning.
Her mobility is markedly impaired. Chronic lumbar back pain and fibromyalgia leave her unable to walk for more than 50 metres without stopping. She is unable to sit for more than 30 minutes in a chair before needing to move.
·Dr Lifson’s report dated 15 July 2015 (Exhibit A3) in which he records:
1.She is unable to perform any overhead activities.
2.My opinion expressed in my report of 27/06/2015 applies to her condition at 05/02/2014.

Ms Short urged me to prefer the JCA report over Dr Bennett’s on the grounds that the JCA provider has specialist knowledge in assessing functional impairments. She also submitted that Dr Bennett’s report was not written within the qualifying period and that his assessment was not supported by the Impairment Tables.
In regard to the qualifying period I note Dr Bennett has used the records of Dr Markov from September 1997 to March 1999 to complete his report. In particular he recorded Mrs Siljanovski’s symptoms as being much the same as they had been in 1997 and that the results of the CT scan of the lumbar spine were similar to [those] in 1997, albeit more severe, having progressed over time. I accept that the report of Dr Bennett is relevant to Mrs Siljanovski’s condition during the qualifying period.
The date of Dr Lifson’s report is also outside the qualifying period. However, I note he has carefully related his opinions to the qualifying period. I therefore accept that Dr Lifson’s report (Exhibit A3) is relevant to Mrs Siljanovski’s condition during the qualifying period.
In regard to the functional impact on activities described in Table 4 as severe, I note Mrs Siljanovski’s evidence that she is able to drive for five minutes to the local shops, using mostly her right arm, and that she can turn her head, albeit with difficulty. She said that, when shopping, she can pick up grocery items from the shelves within her reach. She can dress herself but is not able to pull a jumper over her head.
Considering whether Mrs Siljanovski’s lower back condition has a severe impact, I note:
(a)The JCA reports that Mrs Siljanovski is unable to sustain overhead activities. However Dr Lifson reports that she is unable to perform any overhead activities;
(b)I have evidence that she can turn her head in the car, albeit with difficulty;
(c)I have evidence that she can bend forward sufficiently to pick up grocery items from the shelves in the shop; and
(d)Mrs Siljanovski said she cannot sit for more than 15 minutes and Dr Bennett stated that she cannot sit for more than 30 minutes. However I have no evidence that she is unable to remain seated for at least 10 minutes.
From the evidence I am satisfied that Mrs Siljanovski’s lower back condition corresponds to the requirements of subsection (1)(a) in the section of Table 4 describing a severe impairment. The wording of the section is such that satisfying any one of the subsections is sufficient to satisfy the section. Accordingly I find that the impairment resulting from Mrs Siljanovski’s lower back condition is severe and attracts a rating of 20 points.
Lower Limb Condition
Ms Short contends that Mrs Siljanovski’s lower limb impairments result from her spinal condition and, as a consequence, they are accepted as fully diagnosed, treated and stabilised. I note that Dr Bennett, in his report on her lumbar condition (Exhibit A1), includes her ability to walk with the impairments caused by her lumbar back pain and fibromyalgia. In her report (T-12) the JCA reviewer records that Mrs Siljanovski’s walking and standing capacity is limited due to the client’s back condition.
I accept the contention that, as the lower limb impairments result from Mrs Siljanovski’s spinal condition, her lower limb condition was fully diagnosed, treated and stabilised and able to be assessed under the Impairment Tables.
In considering the impairment rating for this condition I have regard for the following:
·Mrs Siljanovski’s evidence that she had and has difficulty walking and standing, that she uses a walking stick when outside the house and she uses a trolley when she does her grocery shopping;
·The JCA report (T-12, page 86) that the client has reduced walking endurance … the client reports she can go grocery shopping with the use of a trolley; and
·Dr Bennett’s report (Exhibit A1) recording that Mrs Siljanovski is unable to walk for more than 50 metres without stopping.
I accept Mrs Siljanovski’s evidence as being generally corroborated by the reports of the JCA and Dr Bennett. From the evidence I accept that Mrs Siljanovski has some difficulty walking around a shopping mall or supermarket without a rest.
I accept Mrs Siljanovski’s evidence that she uses a walking stick outside the house. This evidence is supported by the JCA, in which her use of a shopping trolley was noted. I consider that, using a shopping trolley is analogous using a walking stick as an aid to walking. I accept also that the objects and fixtures inside a can be readily used in place of a walking stick as an aid to getting around. I accept that Mrs Siljanovski can mobilise effectively but needs to use a…walking stick.
I find that the impairments resulting from Mrs Siljanovski’s lower limb functions correspond to the descriptors of a mild functional impact in Table 5. I assign a rating of five points to this impairment.
Hypertension
In considering whether Mrs Siljanovski’s hypertension was fully diagnosed, treated and stabilised I have regard to:
·The JCA report (T-12) which notes: Client reports she is on medication for this condition but it is still not under control. Insufficient medical information is available to confirm whether this condition is permanent, fully diagnosed, treated and stabilised;
·The report of Dr Lifson (T-11) in which he includes hypertension as a medical condition that is generally well managed and that causes minimal or limited impact on ability to function; and
·Mrs Siljanovski’s oral evidence that at the qualifying period she was still being treated and investigated for this condition.
The entry in Dr Lifson’s report is insufficient to determine whether the condition was fully diagnosed. Mrs Siljanovski’s evidence, corroborated by the JCA, is that the condition was still being treated and investigated at the time of the qualifying period. Accordingly, I find that at the time of the qualifying period the condition of hypertension was not fully diagnosed, treated and stabilised. Consequently I cannot consider it for an impairment rating.
Psychological Condition
Ms Short contends that, at the time of the qualifying period, this condition was not fully diagnosed, treated and stabilised. In her written submissions Ms Short acknowledged the existence of a report by Dr Holwill, a psychiatrist, but noted that the report is undated and does not mention the treatment Mrs Siljanovski underwent. .
In her oral evidence Mrs Siljanovski said that during the qualifying period she experienced a lot of stress and felt down. She was not seeing a psychiatrist or psychologist at that time. She said she was not under treatment now.
In considering this condition I have regard to the undated report of Dr Holwill (T-20, pages 105-106) in which he records:
In this setting Mrs Siljanovski has developed a mild to perhaps moderate level of depression…
Mrs Siljanovski will require ongoing conservative management, and may require prescription of psychotropic medication should her depression worsen. She will remain subject to depression while she continues to suffer from chronic pain…
I have carried out an Impairment Assessment as per The American Medical Association Guides to the Evaluation of Permanent Impairment (Second Edition) and find that she has an impairment of 20% on psychiatric grounds alone.
I accept that the wording has developed a mild to perhaps moderate level of depression constitutes a diagnosis of a condition. I consider the fact of a diagnosis to be supported by Dr Holwill’s assessment against a published guide to impairments. However Dr Holwill’s report is undated and I have no evidence that it was written at a time relevant to the qualifying period.
Dr Holwill’s report also stated that Mrs Siljanovski would require ongoing management for depression for as long as she suffers from pain. Mrs Siljanovski’s evidence is that her pain levels have increased since the qualifying period but she has not sought further psychiatric treatment.
I find that at the qualifying period Mrs Siljanovski’s depression was not fully diagnosed, treated or stabilised. As a consequence I am not able to consider it for an impairment rating.
Total Impairment Points
I have assigned impairment points as follows:
·Neck and upper limb condition – 10 points;
·Lower back condition – 20 points;
·Lower limb condition – 5 points;
·Hypertension – unable to assign points; and
·Psychological condition – unable to assign points.
This equals a total of 35 impairment points.
As Mrs Siljanovski’s impairments attract more than 20 impairment points she satisfies the requirements of subsection 94(1)(b) of the Act. I find accordingly.
Continuing Inability to Work
Subsection 94(1)(c) of the Act requires a person to have a continuing inability to work. Subsection 94(2) relevantly states that a person has a continuing inability to work if the Secretary is satisfied that a person whose impairment is not severe has participated in a program of support (aa), and the impairment is sufficient to prevent the person from doing any work independently of a program of support within the next two years (a).
I have found that the impairment resulting from Mrs Siljanovski’s lower back condition is severe. Accordingly, subsection (aa) of the Act is not relevant in her case.
In considering whether Mrs Siljanovski’s impairments prevent her from doing any work independently of a program of support I note the following:
·The JCA report (T-12) which documents a baseline work capacity of 15 to 22 hours per week and a capacity to work within the next two years with intervention of 15 to 22 hours per week; and
·The report of Dr Bennett (Exhibit A1) in which he states: I do not believe that Mrs Siljanovski was capable of undertaking suitable employment of at least 15 hours per week as at 5 February 2014 (date of claim) or within two years of that date or undertake retraining.
In her written submissions Ms Short urged me to prefer the evidence of the JCA because of the reviewer’s specialist knowledge and experience in determining a person’s impairment rating and job capacity. She added that Dr Bennett had not examined Mrs Siljanovski during the qualification period.
In considering her submission I note that the rationale for the JCA’s finding is that the symptoms and functioning impairments that the client experiences have a moderate impact on daily functioning. I have already found that the impairment resulting from Mrs Siljanovski’s lower back condition is severe rather than moderate. In making that finding I accepted the relevance of Dr Bennett’s report to the qualifying period and preferred his opinion as a specialist rheumatologist to that of the JCA reviewer.
The rationale on which the JCA based her assessment is not consistent with my finding of a severe impairment. I accept Dr Bennett’s opinion and find that Mrs Siljanovski’s impairment, of itself, is sufficient to prevent her from doing any work independently of a program of support within the next two years. I find that Mrs Siljanovski’s impairments satisfy subsection 94(2)(aa) of the Act. As a consequence I find that at the time of the qualifying period Mrs Siljanovski had a continuing inability to work and so satisfied subsection 94(1)(c) of the Act.
CONCLUSION
Ms Short conceded, and I found, that Mrs Siljanovski has impairments that satisfy subsection 94(1)(a) of the Act.
I have found that Mrs Siljanovski’s impairments attract more than 20 impairment points and that she satisfies the requirements of subsection 94(1)(b) of the Act.
I have found that Mrs Siljanovski does have a severe impairment that, of itself, is sufficient to prevent her from doing any work independently of a program of support within the next two years. As Mrs Siljanovski’s impairments satisfy subsection 94(2)(aa) of the Act I have found that at the time of the qualifying period she had a continuing inability to work and so satisfied subsection 94(1)(c) of the Act.
As Mrs Siljanovski satisfies the requirements of each of the relevant subsections I find that she satisfies the requirements of subsection 94(1) of the Act. I find that Mrs Siljanovski is qualified for the DSP at the time of the qualification period.
DECISION
I set aside the reviewable decision and, in substitution, decide that Mrs Siljanovski qualifies for the receipt of the DSP.

I certify that the preceding 80 (eighty) paragraphs are a true copy of the reasons for the decision herein of Mr C Ermert, Member
............................[sgd]...........................................
Associate
Dated 28 August 2015

Date of hearing 14 August 2015

Applicant In person

Advocate for the Respondent Ms Anna-Lisa Short

Solicitors for the Respondent Sparke Helmore Lawyers

[2015] AATA 646

28 August 2015

Key Legal Topics

Areas of Law

Social Security Law

Legal Concepts

Disability Support Pension

Impairment Ratings

Fully Diagnosed, Treated and Stabilised

Permanent Impairment

Continuing Inability to Work

Division	GENERAL DIVISION
File Number	2015/0079
Re	Natalija SILJANOVSKI
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

Tribunal	Mr C Ermert, Member
Date	28 August 2015
Place	Melbourne

Date of hearing	14 August 2015
Applicant	In person
Advocate for the Respondent	Ms Anna-Lisa Short
Solicitors for the Respondent	Sparke Helmore Lawyers