Trajkov and Secretary, Department of Social Services (Social services second review)
[2017] AATA 1292
•17 August 2017
Trajkov and Secretary, Department of Social Services (Social services second review) [2017] AATA 1292 (17 August 2017)
Division:GENERAL DIVISION
File Number: 2016/4372
Re:Branko Trajkov
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Mr D. J. Morris, Member
Date:17 August 2017
Place:Melbourne
The Tribunal affirmed the decision under review.
...................................[sgd].....................................
Member
SOCIAL SECURITY - claim for disability support pension - whether applicant satisfied eligibility criteria during relevant period - where applicant has multiple conditions causing impairment - whether applicant’s impairments can be allocated 20 points under impairment tables - where certain conditions are not permanent - where certain conditions are relatively well managed causing minimal impact - where maximum of 15 points can be allocated under impairment tables - decision affirmed
Legislation
Acts Interpretation Act 1901, s 36(1)
Social Security Act 1991, ss 94(1)(a), 94(1)(b), 94(1)(c)Social Security Administration Act 1999, sch 2, cl 4(1)
Social Security (Tables for the Assessment of Work-related impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Mr D. J. Morris, Member
17 August 2017
Mr Branko Trajkov made a claim for Disability Support Pension (DSP) on 16 September 2015. On 22 December 2015 an officer of the Department of Human Services (the Department) considered and rejected the claim. This was the ‘original decision’.
Mr Trajkov sought a review of the original decision by an Authorised Review Officer (ARO), an officer of the Department not involved in the original consideration of the claim. On 6 May 2016 the ARO affirmed the original decision.
Mr Trajkov sought further review by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1). That hearing took place on 1 August 2016. AAT1 affirmed the original decision.
Mr Trajkov then sought further review by the General Division of the Administrative Appeals Tribunal. The hearing was held on 26 June 2017 by telephone. Mr Trajkov represented himself, gave affirmed evidence, and was cross-examined. The Secretary was represented by Mr Joshua Lessing, a solicitor in the employ of Sparke Helmore Lawyers. The Tribunal was assisted by an interpreter in the Macedonian language.
The Tribunal had before it a bundle of documents submitted by the Secretary under section 37 of the Administrative Appeals Tribunal Act 1975 (T-documents), as well as the Secretary’s Statement of Facts, Issues and Contentions dated 26 May 2017. These documents had also been provided to the Applicant.
Mr Trajkov submitted a medical report dated 24 May 2017 from Dr George Wahr, psychiatrist, which the Tribunal admitted into evidence (Exhibit A1).
Qualification for DSP under the Act
The law applicable to the grant of DSP is the Social Security Act 1991 (the Act) and in particular section 94 of that Act.
In order to qualify for DSP, a person’s claim must be assessed under section 94(1) of the Act and the qualification criteria for DSP must be satisfied. For this reason, it must be established that the person applying:
(a)… has a physical, intellectual or psychiatric impairment; and
(b)the person’s impairment is 20 points or more under the Impairment Tables; and
(c)…
(i) … has a continuing inability to work.
The Impairment Tables referred to in section 94(1)(b) are to be found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination). This Determination came into effect on 1 January 2012 and is applicable to assessments of qualification for DSP from that date.
The applicable provision relating to the Applicant’s ability to “work” under subsection 94(1) (c) and section 94(5) of the Act is work that is for at least 15 hours a week.
Therefore, for a person to be qualified for DSP, the person must first have one or more impairment within the meaning of the Act. Secondly, the impairment, or impairments if there is more than one, must be assigned a rating of 20 or more points under the Impairment Tables. Thirdly, the person must have a continuing inability to work.
In considering whether a person has a continuing inability to work, an important additional requirement may apply in relation to a person’s participation in an approved program of support. If a person is assigned 20 or more points under one Impairment Table, this means the person’s impairment is then assessed under section 94(3B) to be a ‘severe impairment’. If a person satisfies the 20 point requirement under section 94(1)(b), but does not have a ‘severe impairment’, then the provisions of section 94(2) of the Act are applicable, which relate to a person participating in an approved program of support.
What is the period for considering the claim?
The Social Security (Administration) Act 1999 (the Administration Act) provides, at clause 4(1) of Schedule 2, as follows:
(1)If:
(a)a person (other than a detained person) makes a claim for a relevant social security payment; and
(b)the person is not, on the day on which the claim is made, qualified for the payment; and
(c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(d)the person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.
Section 36(1) of the Acts Interpretation Act 1901 (the Interpretation Act) sets out in a table which provides rules for how a period of time is to be calculated in legislation where there is no express contrary meaning. Item 5 in the table in section 36(1) of the Interpretation Act states that if the period of time is expressed to begin from a specified day, it does not include that day.
Consequently, the Tribunal must consider whether Mr Trajkov was eligible for DSP on the date that he made his claim, 16 September 2015, and if not, whether he fulfilled the requirements for eligibility on another day in the thirteen week period after that date, commencing on 17 September 2015 and concluding on 16 December 2015. This is called the claim period.
Does the Applicant have a physical, intellectual or psychiatric impairment?
The Tribunal had before it a number of medical reports relating to Mr Trajkov. The Respondent in submissions accepted that Mr Trajkov suffers from impairments which would satisfy section 94(1)(a) of the Act arising from a shoulder condition, a spinal condition, monoclonal gammopathy of uncertain significance (MGUS), a right knee condition, a brain condition and a mental health condition.
Dr Jim Romas, General Practitioner, provided a medical report to the Department dated 11 July 2016 (T44, p 165-167) which referred to Mr Trajkov’s conditions in the claim period. Dr Romas reported that Mr Trajkov had had a scan of his neck on 24 September 2014 which reported:
“uncovertebral degenerative joint disease at multiple levels and some degenerative disc foramina. It also showed a disc herniation at the C4/5 level together with lipping changes causing compromise of the dural sac. His neck problem is a very significant problem causing neck pain and bilateral shoulder pain.”
Dr Paul Tauro, Radiologist at the Northern Hospital Radiology, provided a radiological report dated 13 October 2015 following a number of x-rays of Mr Trajkov to Dr James Hayes (T30, p 117). Dr Tauro interpreted an x-ray of Mr Trajkov’s whole spine and, in relation to his cervical spine, reported:
“Degenerative change is noted in the cervical spine with large marginal osteophytes extending anteriorly from all levels from C3 distally, intervertebral disc heights are decreased, most marked at the level of C5/6 and C6/7.”
Dr Prahlad Ho, consultant haematologist, examined Mr Trajkov on 13 April 2015. He provided a report to Dr Romas on the same date (T28). Dr Ho reported that Mr Trajkov’s MGUS was stable after tests and assessment.
On 10 February 2003 Dr Norman Forster, radiologist, interpreted an ultrasound of Mr Trajkov’s right knee and reported “there is some fluid in the deep part of the laceration extending for 2.7 cm in length and measuring 5mm in maximum diameter.” (T5).
On 21 September 2011, Ms Maggie Phillips, clinical neuropsychologist, undertook an assessment and provided a report to Mr Trajkov and his family dated 4 October 2011 (T18). Mr Trajkov had seen Ms Phillips after reporting memory problems following a motor vehicle accident in March 2010. Ms Phillips was of the opinion that Mr Trajkov had some difficulties keeping track of information and paying attention to what was being said to him, or shown him.
Dr Nathan Serry, consultant psychiatrist, conducted an assessment on Mr Trajkov on 3 May 2011 at the request of Nowicki Carbone lawyers and provided a report on the same day (T12). Dr Serry diagnosed chronic adjustment disorder with anxious and depressed mood and with features of traumatization consistent with a PTSD. Dr Serry was of the view that this condition had substantially stabilized and the effects were “long-term in nature”.
The Tribunal has considered the medical evidence before it and finds that Mr Trajkov satisfied the provisions of section 94(1)(a) of the Act in the claim period: he had a mental health condition, a spinal condition, MGUS, a brain function condition, a right knee condition, and a shoulder condition. Having made that finding, the Tribunal must now consider the functional impact of each condition on the Applicant.
Mental health condition
As mentioned above, Dr Serry diagnosed a chronic adjustment disorder with anxious and depressed mood and features of traumatisation consistent with PTSD. Dr Serry’s view was that the condition was substantially stabilised in 2011 and that the prognosis was “mixed”.
Dr Jenine Padget, aged care psychiatrist, noted in a report typed in July 2013 that Mr Trajkov’s depression and PTSD now “seemed to be under reasonable control”. There were a number of other psychiatric and psychological reports before the Tribunal leading up to, and after, the claim period.
There were before the Tribunal a number of medical certificates signed by Dr Wahr citing a diagnosis of ‘agitated depression’, dated 27 May 2015 (T46 p 173), 9 September 2015 (T46, p 172), 1 December 2015 (T46, p 174 and 3 March 2016 (T46, p 174). There was also a medical certificate from Dr Romas dated 5 April 2016 (T46 p 176) which stated that Mr Trajkov’s depression was a ‘temporary’ condition but then stated “Severe depression seeing psychiatrist Dr Wahr”, so that certificate is somewhat contradictory.
The Tribunal prefers to rely on Dr Wahr’s diagnosis given his specialist expertise and, as noted above, accepts that this is a permanent mental health condition, noting that three of these certificates were dated within the claim period. The Tribunal also had a report from Dr Wahr provided on 24 May 2017 (Exhibit A1). Mr Trajkov in his evidence urged the Tribunal to place greater weight on Dr Wahr’s views because he had been treating the Applicant for some years. The Tribunal also notes a single sentence report by Dr Wahr (T43) dated July 2016 which states that the Applicant has “no work capacity.”
The Tribunal notes a later report by Mr Zac Stojcevski, psychologist, dated 10 February 2016 (T39). Mr Stojcevski stated that he had been treating Mr Trajkov since 2011 and this is supported by reference to Mr Stojcevski in Dr Ingram’s report. Mr Stojcevski’s report is well after the claim period and earlier reports from Mr Stojcevski were not before the Tribunal.
The Tribunal notes that Mr Stojcevski is a general psychologist and is not therefore in the category of persons required by the Determination to establish a diagnosis, but may fall within those who can corroborate relevant symptoms. The Tribunal considers that this report is useful insofar as it corroborates observations recorded in the assessment, but not conclusive. Some of Mr Stojcevski’s conclusions are directly contradicted by the Applicant’s self-reporting of his functional abilities in the claim period.
Under cross-examination Mr Trajkov was asked about the care he provided for his wife for a period. The Tribunal had before it a Carer Payment/Carer Allowance Medical Report dated January 2012 signed by Mr Trajkov relating to Mrs Sonja Trajkov. The document listed the Applicant as Mrs Trajkov’s carer. The report stated that Mrs Trajkov required daily care in dressing, using stairs and bathing. Mr Trajkov was vague in his responses to questions at the hearing about this form and what he did for his wife. He agreed that he cooked occasionally, shopped for groceries, and would visit the local park but that he would “go there to avoid being at home”.
The Tribunal noted that Mr Trajkov used a computer for games but not for email. He watched television, read newspapers, was independent in self-care and used public transport. He undertook overseas air travel in late 2015. Mr Trajkov was taken to the report of Dr Nicholas Ingram, psychiatrist, dated 12 September 2012 (T23), where Dr Ingram recorded that Mr Trajkov continued to see friends but less often than in the past. Mr Trajkov replied that he had no friends and saw no one. He told the Tribunal that he gets "very stressed."
The Secretary conceded that Mr Trajkov had had regular psychiatric treatment and psychological counselling since 2011. The Secretary contended that Mr Trajkov’s functional impact caused by his mental health condition satisfied the moderate Descriptors under Table 5 - Mental Health Function, but did not meet the severe Descriptors. The Secretary therefore contended that a maximum of 10 points could be allocated to this condition.
The relevant Table for consideration of the functional impact of Mr Trajkov’s mental health condition is Table 5 – Mental Health Function. Relevantly, it provides:
Points
Descriptors
0
There is no functional impact on activities involving mental health function.
(1) The person has no difficulties with most of the following:
(a) self care and independent living;
Example: The person lives independently and attends to all self care needs without support.
(b) social/recreational activities and travel;
Example 1: The person goes out regularly to social and recreational events without support.
Example 2: The person is able to travel to and from unfamiliar environments independently.
(c) interpersonal relationships;
Example: The person has no difficulty forming and sustaining relationships.
(d) concentration and task completion;
Example 1: The person has no difficulties concentrating on most tasks.
Example 2: The person is able to complete a training or educational course or qualification in the normal timeframe.
(e) behaviour, planning and decision-making;
Example: There is no evidence of significant difficulties in behaviour, planning or decision-making.
(f) work/training capacity.
Example: The person is able to cope with the normal demands of a job which is consistent with their education and training.
5
There is a mild functional impact on activities involving mental health function.
(1) The person has mild difficulties with most of the following:
(a) self care and independent living;
Example: The person lives independently but may sometimes neglect self-care, grooming or meals.
(b) social/recreational activities and travel;
Example 1: The person is not actively involved when attending social or recreational activities.
Example 2: The person sometimes is reluctant to travel alone to unfamiliar environments.
(c) interpersonal relationships;
Example: The person has interpersonal relationships that are strained with occasional tension or arguments.
(d) concentration and task completion;
Example 1: The person has difficulty focusing on complex tasks for more than 1 hour.
Example 2: The person has some difficulties completing education or training.
(e) behaviour, planning and decision-making;
Example 1: The person has unusual behaviours that may disturb other people or attract negative attention and may sometimes be more effusive, demanding or obsessive than is appropriate to the situation.
Example 2: The person has slight difficulties in planning and organising more complex activities.
(f) work/training capacity.
Example: The person has occasional interpersonal conflicts at work, education or training that require intervention by a supervisor, manager or teacher or changes in placement or groupings.
10
There is a moderate functional impact on activities involving mental health function.
(1) The person has moderate difficulties with most of the following:
(a) self care and independent living;
Example: The person needs some support (that is, an occasional visit by or assistance from a family member or support worker) to live independently and maintain adequate hygiene and nutrition.
(b) social/recreational activities and travel;
Example 1: The person goes out alone infrequently and is not actively involved in social events.
Example 2: The person will often refuse to travel alone to unfamiliar environments.
(c) interpersonal relationships;
Example: The person has difficulty making and keeping friends or sustaining relationships.
(d) concentration and task completion;
Example 1: The person finds it very difficult to concentrate on longer tasks for more than 30 minutes (such as reading a chapter from a book).
Example 2: The person finds it difficult to follow complex instructions (such as from an operating manual, recipe or assembly instructions).
(e) behaviour, planning and decision-making;
Example 1: The person has difficulty coping with situations involving stress, pressure or performance demands.
Example 2: The person has occasional behavioural or mood difficulties (such as temper outbursts, depression, withdrawal or poor judgement).
Example 3: The person’s activity levels are noticeably increased or reduced.
(f) work/training capacity.
Example: The person often has interpersonal conflicts at work, education or training that require intervention by supervisors, managers or teachers or changes in placement or groupings.
20
There is a severe functional impact on activities involving mental health function.
(1) The person has severe difficulties with most of the following:
(a) self care and independent living;
Example: The person needs regular support to live independently, that is, needs visits or assistance at least twice a week from a family member, friend, health worker or support worker.
(b) social/recreational activities and travel;
Example: The person travels alone only in familiar areas (such as the local shops or other familiar venues).
(c) interpersonal relationships;
Example 1: The person has very limited social contacts and involvement unless these are organised for the person.
Example 2: The person often has difficulty interacting with other people and may need assistance or support from a companion to engage in social interactions.
(d) concentration and task completion;
Example 1: The person has difficulty concentrating on any task or conversation for more than 10 minutes.
Example 2: The person has slowed movements or reaction time due to psychiatric illness or treatment effects.
(e) behaviour, planning and decision-making;
Example: The person’s behaviour, thoughts and conversation are significantly and frequently disturbed.
(f) work/training capacity.
Example: The person is unable to attend work, education or training on a regular basis over a lengthy period due to ongoing mental illness.
In terms of assessing whether there is a moderate functional impact of a mental health condition on a person, that part of the matrix requires that in each case most of the functional examples of difficulties be met.
The Tribunal is satisfied on the evidence that Mr Trajkov did meet the Descriptors for a moderate functional impact relating to concentration and task completion. He did not meet them in relation to self-care and independent living, on his own evidence. There is conflicting evidence on the effect of this condition on his social/recreational activities and travel. While he did travel to Europe in 2015 it was for a specific purpose to visit his ill mother, and there was evidence about a decreasing circle of friends; his visits to the park were regular but it seems not for exercise but to allow him some space to alleviate his stress. On balance the Tribunal agrees with the Respondent that this conduct is suggestive of a moderate functional impact. There was insufficient evidence before the Tribunal to form a definitive view about Mr Trajkov’s interpersonal relationships in the claim period because of conflicting evidence.
It is difficult to assess the work/training capacity Descriptor. Dr Romas was of the view that Mr Trajkov would ‘never’ return to gainful employment of any kind and the cognitive deficits described by Dr Padget would militate against training capacity; on balance I find that this Descriptor is satisfied in terms of a moderate functional impact in the claim period. In terms of the Descriptor relating to behaviour, planning and decision-making, there was some evidence from Dr Padget and Dr Ingram, and later but referrable evidence from Dr Wahr, about deficits in this area.
I am satisfied that Mr Trajkov meets most of the Descriptors at the moderate level. There is no evidence to suggest, however, that Mr Trajkov would meet most of those at the severe level. I conclude a moderate functional impact should be assigned. I therefore find that the Applicant should be allocated 10 impairment points for his mental health condition in the claim period.
Spinal condition
Mr Peter Kudelka, orthopaedic surgeon, examined Mr Trajkov in August 2011 and provided an independent medical assessment (T17). Mr Kudelka noted a global restriction of movement of the neck of “approximately 50%”. His report was in relation to a legal assessment following Mr Trajkov’s motor vehicle accident injury and the Tribunal takes that purpose into account. He reported, in relation to Mr Trajkov’s spinal condition:
Assuming that the cervical spine soft issue has substantially stabilised, I would make an impairment assessment in accordance with the AMA Guides 4th Edition as follows:
Cervical spine: DRE Category II, Minor Impairment:
Specific injury with no evidence of radiculopathy:
Whole person impairment: 5%
I would assess 50% of this as due to the accident and 50% due to age-related changes.
While this condition is fully diagnosed, it was not fully treated or fully stabilised in the claim period. Mr Trajkov was awaiting a range of specialist treatment, including physiotherapy and an appointment with a rheumatologist. Even if this condition was capable of being assessed for functional impact on the Applicant under the relevant table in the Determination Table 4 – Spinal Function, there was scant evidence from Mr Trajkov about how this condition affects him. There was evidence that he drives (albeit infrequently), shops locally and could undertake a lengthy flight to Europe. Noting Mr Kudelka’s observations, Mr Trajkov did not report any difficulties caused by his back to AAT1 or this hearing in terms of his day to day personal care or use of trains and trams.
The Tribunal therefore finds that this condition was not permanent within the meaning of the Impairment Tables, and therefore could not be assigned points in the claim period. It is therefore unnecessary to consider this condition further.
MGUS
Dr Sam Scherer, geriatric medicine specialist, wrote in a medical letter dated 31 January 2012 (T22) that Mr Trajkov’s MGUS condition “has been comprehensively investigated and followed up”.
Dr Ho stated on 13 April 2015 (T28) in a letter to the Applicant’s general practitioner, Dr Romas, that:
“Branko…has remained well over the last two years and has not had any significant complications. In fact, he does not have any significant medical history and is currently on no medications.
Dr Ho said that it appears that Mr Trajkov’s MGUS remains stable, a view echoed by Dr Pham Lukito, a haematology registrar at The Northern Hospital on 14 December 2015 (T35) who said that Mr Trajkov had not reported “any new symptoms at the moment”.
The Tribunal finds that this condition is fully diagnosed, fully treated and fully stabilised in the terms required by the Determination. There is no evidence, however, that the condition has any impact on Mr Trajkov’s ability to function. In accordance with section 11(5) of the Determination, as the condition causes no functional impact, zero impairment points are assigned for it.
Brain function condition
Mr Ranjith Hettiarachi , surgeon, referred Mr Trajkov to a consultant geriatrician in May 2011 on the basis of his patient reporting forgetfulness, confusion, disorientation and loss of recent memory.
The Tribunal is not aware whether Mr Trajkov was seen by a geriatrician at that time but, as mentioned above, he was seen by Ms Phillips in the Cognitive, Dementia and Memory Service at Bundoora Extended Care Centre in October 2011. Ms Phillips offered a range of strategies designed to assist Mr Trajkov with his self-reported memory lapses but did not proffer a diagnosis.
Dr Jenine Padget, psychiatrist at The Northern Hospital, wrote in a medical letter to Mr Hettiarachi dated 16 October 2013 (T26):
Overall, Mr Trajkov’s neuropsychological profile has remained relatively consistent with his previous assessment in 2012. He continues to show significant impairments in his basic attention, working memory, speed of information processing, semantic visual fluency, new learning and memory and a range of executive abilities. He also continues to demonstrate intact orientation, visuospatial skills, clock drawing, planning and organisational skills and praxis.
It would seem, however, that Dr Padget concludes that Mr Trajkov’s memory and associated problems stem from his mental health condition. She reports (T26, p 82):
There has been no decline in his cognition in the time that he has seen us and he has persistent deficits in a range of areas. There is no evidence that he has a neurodegenerative disorder. He remains depressed and it is likely that his depression is significantly contribution to his cognitive difficulties. The pattern of deficits is not consistent with a minor head injury.
The Tribunal must consider section 10 of the Determination which requires that where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.
The Tribunal is satisfied that Mr Trajkov’s brain function condition is one of long-standing which was fully diagnosed, fully treated and stabilised in the claim period. The relevant impairment table for considering the functional impact of such a condition is Table 7 – Brain Function. The first three Descriptor levels for Table 7 relevantly provide:
Points
Descriptors
0
There is no functional impact resulting from a neurological or cognitive condition.
(1) The person has no significant problems with memory, attention, concentration, problem solving, visuo-spatial function, planning, decision making, comprehension, self awareness or behavioural regulation
5
There is a mild functional impact resulting from a neurological or cognitive condition.
(2) The person is able to complete most day to day activities without assistance and has mild difficulties in at least one of the following:
(a) memory;
Example: The person occasionally forgets to complete a regular task or sometimes misplaces important items.
(b) attention and concentration;
Example 1: The person has some difficulty concentrating on complex tasks for more than 1 hour.
Example 2: The person has some difficulty focusing on a task if there are other activities occurring nearby.
(c) problem solving;
Example 1: The person has difficulty solving complex problems that may involve multiple factors or abstract concepts.
Example 2: The person shows a lack of awareness of problems in some situations.
(d) planning;
Example: The person has some difficulty planning and organising complex activities (such as arranging travel and accommodation for an interstate or overseas holiday).
(e) decision making;
Example: The person has some difficulty in prioritising and complex decision making when there are several options to choose from.
(f) comprehension.
Example: The person has some difficulty in understanding complex instructions involving multiple steps.
10
There is a moderate functional impact resulting from a neurological or cognitive condition.
(1) The person needs occasional (less than once a day) assistance with day to day activities and has moderate difficulties in at least one of the following:
(a) memory;
Example 1: The person often forgets to complete regular tasks of minor consequence such as putting the bin out on rubbish night.
Example 2: The person often misplaces items.
Example 3: The person needs to use memory aids (such as shopping lists) to remember any more than 3 or 4 items.
(b) attention and concentration;
Example 1: The person has difficulty concentrating on complex tasks for more than 30 minutes.
Example 2: The person has significant difficulty focusing on a task if there are other activities occurring nearby.
(c) problem solving;
Example: The person has difficulty solving some day to day problems or problems not previously encountered and may need assistance or advice from time to time.
(d) planning;
Example: The person has difficulty planning and organising new or special activities (such as planning and organising a large birthday party).
(e) decision making;
Example: The person has some difficulty in prioritising and decision making and displays poor judgement at times, resulting in negative outcomes for self or others.
(f) comprehension;
Example: The person has difficulty understanding complex instructions involving multiple steps and may need more prompts, written instructions or repeated demonstrations than peers to complete tasks.
(g) visuo-spatial function;
Example: The person has some difficulty with visuo-spatial functions (such as difficulty reading maps, giving directions or judging distance or depth) but this does not result in major limitations in day to day activities.
(h) behavioural regulation;
Example: The person occasionally (less than once a week) has difficulty controlling behaviour in routine situations (such as showing frustration or anger or losing temper for minor reasons but displays no physical aggression).
(i) self awareness.
Example: The person lacks awareness of own limitations, resulting in mild difficulties in social interactions or problems arising in day to day activities.
While there is some evidence from Dr Padget of mild improvements over time, on her professional analysis she is of the view that “[Mr Trajkov] has persistent deficits in a range of areas.” It is difficult to separate Mr Trajkov’s mental health condition from his memory problems because they appear on the medical evidence to be interrelated. Dr Ingram refers (T23, p 71) to a report by Dr Lindsay Vowels, a neuropsychologist, dated 24 March 2010. Dr Ingram wrote:
“[Dr Vowels] felt cognitive testing showed that Mr Trajkov’s cognitive abilities had been severely compromised, though he [sic] found it difficult to say whether this was due to an acquired brain impairment.”
The Tribunal did not have Dr Vowels’ report before it, but Dr Ingram was writing his report to the Victorian Transport Accident Commission as an independent psychiatric assessor and the Tribunal has no reason to question that he has not accurately summarised her report.
The Secretary contended that given the difficulty Mr Trajkov’s medical advisers had in pinning down the source of his memory failings, this condition is not fully diagnosed. Given the medical history that this problem has had a functional impact for several years and has been reported on by several professionals and that the purpose of the Determination is to assess conditions which have functional impacts on a person’s ability to work, on balance the Tribunal is persuaded that the preferable approach is that this condition is permanent within the meaning of the Impairment Tables, and therefore capable of assessment.
The Tribunal is satisfied there is evidence to suggest that Mr Trajkov’s has mild difficulty with at least one of the items set out under the mild Descriptor, and that is able to complete most day to day activities without assistance. It is not satisfied that he meets at least one of the moderate Descriptors, or that he could be said to need occasional (less than once a day) assistance with day to day activities that results from this condition. It therefore assigns 5 impairment points under Table 7 because of the discrete functional impact on the Applicant of his memory and cognitive deficits.
Right knee condition
As mentioned above, Mr Trajkov was diagnosed with bursitis in his right knee. There was little evidence about this condition on the Applicant and its functional impact. The Tribunal finds that it is a permanent condition in the terms of the Determination, insofar as it is fully diagnosed, treated and stabilised, but that it had minimal functional impact on Mr Trajkov in the claim period and is assigned zero points.
Right shoulder condition
The Respondent contended that Mr Trajkov’s right shoulder condition should be regarded as permanent under the Determination in the claim period because of corroborating evidence from Mr John Owen, orthopaedic surgeon (T21). Mr Owen reported on 7 November 2011, having examined Mr Trajkov on 2 November 2011:
“Clinically, this man gives a picture of gross disability. Looking at him he has an obvious lesion involving his pectoralis major on the right. He does have obvious psychosocial problems with give-way weakness in all areas of his upper extremity and quite active diminution of his range of movement of his shoulder.’
Mr Owen said it was possible to repair the tendons but his considered professional opinion was that it would be “folly” to offer him surgery.
The Tribunal considers that, on the medical evidence, Mr Trajkov’s shoulder condition is capable of assessment under the Determination. The relevant table is Table 2 – Upper Limb Function. Relevantly, the first two Descriptor levels of Table 2 provide:
Points
Descriptors
0
There is no functional impact on activities using hands or arms.
(1) The person can pick up, handle, manipulate and use most objects encountered on a daily basis without difficulty.
5
There is a mild functional impact on activities using hands or arms.
(1) The person can manage most daily activities requiring the use of the hands and arms, but has some difficulty with most of the following:
(a) picking up heavier objects (e.g. a 2 litre carton of liquid or carrying a full shopping bag);
(b) handling very small objects (e.g. coins);
(c) doing up buttons;
(d) reaching up or out to pick up objects.
Mr Trajkov gave evidence at the hearing that in the claim period he cooked “as much as he could”, although he was assisted in this by his daughter-in-law. He said he would walk to a park close to his house and would go grocery shopping locally. He told AAT1 that in the claim period he drove at least once a week, could clean the bathroom and was independent in self-care. He travelled to Macedonia in September 2015 to visit his ill mother.
The Tribunal considers that, while Mr Trajkov’s shoulder condition may be troublesome, there was insufficient evidence of impact on the Applicant’s functional abilities to apply the Descriptors in Table 2 for anything more than a zero rating during the claim period. He cannot, on the evidence, be said to have difficulty with most of the activities set out under the mild Descriptors.
Conclusion
The Tribunal finds that the Applicant’s impairments can be assigned a total of 15 impairment points for the claim period, including 10 points under Table 5 – Mental Health Function, and 5 points under Table 7 – Brain Function. Section 94(1)(b) of the Act requires the assignment of 20 or more impairment points to a claimant at the time the person made a claim or in the 13 weeks thereafter. As Mr Trajkov did not meet the requirements of section 94(1)(b) at that time, his application for DSP cannot succeed.
Each part of section 94 must be satisfied for a person to be qualified for DSP. As this claim fails to meet the requirements of section 94(1)(b), it is not necessary for the Tribunal to address whether the Applicant had satisfied section 94(1)(c), a continuing inability to work, in the claim period. The Tribunal does note that Mr Trajkov does not satisfy the Descriptors under a single Table for a severe functional impact, and the assignment of 20 points, so even if he had accumulated 20 or more points under other Tables, he had not undertaken the program of support requirements set down in the Act in the eighteen months prior to his DSP claim.
The Tribunal finds that the original decision was correct. Mr Trajkov was not qualified for DSP on the date he made his claim and he did not become qualified in the 13 week period after that date.
DECISION
The decision under review is affirmed.
I certify that the preceding 64 (sixty-four) paragraphs are a true copy of the reasons for the decision herein of Mr D. J. Morris, Member
....................................[sgd]....................................
Associate
Dated: 17 August 2017
Date of hearing: 26 June 2017 Applicant: In person Advocate for the Respondent: Mr Joshua Lessing Solicitors for the Respondent: Sparke Helmore Lawyers
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