Zilic and Secretary, Department of Employment and Workplace Relations

[2006] AATA 662

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 662

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2005/799

GENERAL ADMINISTRATIVE DIVISION		)
Re		ZLATKO ZILIC

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Senior Member B J McCabe

Date28 July 2006

PlaceBrisbane

Decision The decision under review is set aside. In substitution, the Tribunal decides the applicant is entitled to unlimited portability of his disability support pension pursuant to the International Agreement between Australia and Croatia made under the Social Security (International Agreements) Act 1999.

................[Sgd]..............................

SENIOR MEMBER

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – disability support pension – portability provisions – international agreements – applicant is severely disabled – applicant entitled to unlimited portability under international agreement

Social Security Act 1991 s 23(4B), 1218AA

Social Security (International Agreements) Act 1999

REASONS FOR DECISION

28 July 2006 Senior Member B J McCabe

introduction

1.      Mr Zlatko Zilic has sought review of a decision to limit the payment of disability support pension while he is overseas to a maximum of 13 weeks. Mr Zilic intends to permanently return to Croatia (his place of birth) to be with his parents, both of whom are in poor health. The applicant wishes to retain his pension on his return to Croatia.

2.      The decision to limit the portability of Mr Zilic’s pension should be set aside. I explain my reasons below.

the material before the tribunal

3. The Tribunal was provided with the documents required under s 37 of the Administrative Appeals Tribunal Act 1975. The respondent also tendered a work capacity assessment report prepared by Ms Case, an occupational therapist. The applicant tendered a written statement dated 10 May 2006 and a doctor’s certificate signed by Dr Kelly dated 18 April 2006. The Tribunal also heard from Dr Kelly, the applicant’s treating doctor.

4.      The applicant represented himself and gave evidence at the hearing. The respondent was represented by Ms Oliver, a Centrelink advocate.

facts

5.      Mr Zilic came to Australia in 1971 when he was 11 years old. He has never married. He no children. He wishes to return to Croatia to be with his parents who are seriously ill. Mr Zilic’s brother is also in a mental institution in Croatia.

6.      Mr Ziilic has been receiving the disability support pension since 2003. He suffers from a number of heath problems. He has been diagnosed with chronic lumbar back pain, Hepatitis C and – most recently - emphysema. Mr Zilic also suffers from anxiety and depression.

the legislative framework

7. In order to extend the portability of the applicant’s disability support pension it is necessary to satisfy the requirements of s 1218AA of the Social Security Act 1991 (the Act). Alternatively, the applicant needs to demonstrate that he falls within the provisions of the International Agreement with Croatia.

8. Section 1218AA(c) of the Act requires that the applicant be terminally ill. Whilst the applicant suffers from a number of serious health problems there was no suggestion from any of the doctors that the conditions were terminal. It follows the applicant will only be entitled to unlimited portability of his pension if he falls within the provisions of the International Agreement.

9.      In order to qualify under the Agreement it must be established the applicant is severely disabled. Regard must be had to the definition of severely disabled in s 23(4B) of the Act. This provides:

For the purpose of this Act, a person is severely disabled if:

(a)  a physical impairment, a psychiatric impairment, an intellectual impairment, or 2 or all of such impairments, of the person make the person, without taking into account any other factor, totally unable:

(i)to work for at least the next 2 years; and

(ii)unable to benefit within the next 2 years from participation in a program of assistance or a rehabilitation program; or

(b)  the person is permanently blind.

10.     In order to assess whether the applicant is severely disabled it is necessary to examine the medical evidence.

the medical evidence

11.     The applicant was assessed by Ms Case, an occupational therapist, on 15 February 2006 for the purpose of providing a work capacity assessment report. Ms Case concluded that with the benefit of treatment options the applicant would be fit to return to work for 8-14 hours a week within six months. Dr Lee gave a similar assessment in his report dated 20 October 2003 (T 35).

12.     For reasons I will explain I prefer the evidence of Dr Kelly, the applicant’s treating doctor. Dr Kelly gave evidence by telephone at the hearing. He also provided a number of reports (T 21, T 28 and exhibit 4).

13.     Dr Kelly insisted in his oral evidence that Mr Zilic would not be able to return to work within the next two years. Whereas Ms Case thought the psychiatric conditions were the main barrier to work, Dr Kelly opined the applicant’s chronic lumbar pain was the major obstacle. The doctor also said Mr Zilic’s hepatitis C condition is an impediment. Dr Kelly doubted whether any treatment was possible for the back condition and the hepatitis. He did not regard the emphysema as a major obstacle to work at this point however he expects that it will be a problem in the future.

14.     Under cross examination by Ms Oliver, Dr Kelly conceded some form of pain management might be of benefit however he believed this would not help the applicant to return to the workforce. Dr Kelly agreed the psychiatric conditions may improve with treatment but he said that did not change his view that the applicant could not work for even a minimal amount of time during the next two years because of his back condition and hepatitis. He reiterated that even if the applicant were to receive treatment it would not assist him in returning to the workforce.

15.     Dr Kelly is the applicant’s treating doctor and as such has a full appreciation of the range of Mr Zilic’s ailments. His knowledge of the applicant’s health problems meant that he had a clearer idea of the medical obstacles facing the applicant and his ability to work. He has also provided the Tribunal with the most recent medical assessment of the applicant’s condition – as assessment which made it clear that the assessment of Ms Case focused too narrowly on the applicant’s psychiatric conditions. For these reasons, I accept his evidence.

conclusion

16.     The applicant is severely disabled for the purposes of satisfying s 23(4B) of the Act.

17.     The decision under review is set aside. In substitution, the Tribunal decides the applicant is entitled to unlimited portability of his disability support pension pursuant to the International Agreement with Croatia.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe.

Signed:         .....................................................................................
  Associate      Adam Ryan

Date of Hearing  10 May 2006
Date of Decision  28 July 2006
The applicant represented himself at the hearing.
The respondent was represented by Ms Oliver, a departmental advocate.