Borkovic and Secretary, Department of Social Services (Social services second review)
[2015] AATA 474
•1 July 2015
Borkovic and Secretary, Department of Social Services (Social services second review) [2015] AATA 474 (1 July 2015)
Division General Division File Number
2015/0975
Re
Mijo Borkovic
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Miss E A Shanahan, Member
Date 1 July 2015 Place Melbourne The Tribunal affirms the decision under review.
[sgd]........................................................................
Miss E A Shanahan, Member
SOCIAL SECURITY – disability support pension claim – predominant medical condition degenerative disease of lumbar spine, hips and knees – other conditions fully diagnosed, treated and stabilised – impairment rating attracted 10 points – recent diagnosis and treatment of depression – decision affirmed.
Legislation
Administrative Appeals Tribunal Act 1975
Social Security Act 1991
Social Security (Administration) Act 1999
Social Security (Tables for the Assessment for Work Related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables)
Social Security (Requirement and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (the POS Determination)Cases
Re Bobera and Secretary, Department of Families, Housing, Community Services
and Indigenous Affairs [2012] AATA 922
ReCoates and Secretary, Department of Employment and Workplace Relations [2006] AATA 938
Re Fanning and Secretary, Department of Social Services [2014] AATA 447
REASONS FOR DECISION
Miss E A Shanahan, Member
INTRODUCTION
Mr Borkovic was involved in a motor vehicle accident (MVA) on 28 October 2008. He sustained injuries to his lumbar spine, hips and knees. He has not worked since. On 9 March 2011 Mr Borkovic underwent a lumbar laminectomy, with short-lived improvement in his bilateral sciatic pain. Mr Borkovic’s claim for the disability support pension (DSP) was accepted by Centrelink on 2 November 2011. (Centrelink is the service delivery agency for the Department of Social Services.) However, DSP was cancelled on 18 May 2013 because he received a lump sum payment from the Transport Accident Commission (TAC) on 14 May. This payment attracted a preclusion period for the further payment of DSP until 29 October 2014. Mr Borkovic reapplied for the DSP on 1 November 2014 (according to T-Doc page 5).
On 12 November 2014 Mr Borkovic’s new claim was rejected because, despite an impairment rating of 20 points under the Social Security (Tables for the Assessment for Work Related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables), he had not undertaken a program of support during the 36 months before lodging his claim (T-documents pages 99-102) as required by the Social Security (Requirement and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (POS Determination).
Mr Borkovic lodged an application for review of the Centrelink decision by the Social Security Appeals Tribunal (SSAT) on 8 December 2014. On 10 February 2015 the SSAT affirmed the decision to reject his application. However, it did so on the basis that the impairment rating attracted was only 10 points under the Impairment Tables. The SSAT accepted the Job Capacity Assessment (JCA) rating of 10 points for Mr Borkovic’s degenerative osteoarthritis of the lumbar spine but rejected the rating for the hips and the left knee as these were not considered fully diagnosed, treated and stabilised.
In December 2014 an orthopaedic surgeon, Mr James Stoney, had recommended Mr Borkovic have a bilateral total hip replacements and left knee replacement surgery. In light of this recommendation − which Mr Borkovic accepted − his hip and knee conditions could not be considered fully treated and stabilised.
Mr Borkovic was self-represented at the hearing and assisted by his wife. Mr N Nguyen, a solicitor from Sparke Helmore, appeared on behalf of the respondent. The Tribunal was provided with the documentation filed in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (T-documents) which were taken into evidence as Exhibit R1. Mr Borkovic tendered a report from his treating general practitioner, Dr Maria Wegrzynowski, dated 30 May 2015 (Exhibit A1).
Mr and Mrs Borkovic addressed the Tribunal but did not give formal evidence. Mr Borkovic had undergone right total hip replacement 12 days before the hearing and had been on crutches for 11 days.
BACKGROUND TO THE APPLICATION
Mr Borkovic was employed full time as a maintenance fitter and turner until his 2008 MVA. While he had noted occasional lumbar spinal pain in the past, this became more severe and acute following the MVA. Investigations in the form of CT scanning revealed acquired spinal canal stenosis at L4/5 level due to a disc bulge and degenerative changes, giving rise to L5 nerve root compression. On 9 March 2011, following the failure of conservative treatment, Mr Borkovic underwent a laminectomy. The Tribunal has not been provided with the details of the laminectomy although his neurosurgeon, Mr T Han, states that postoperatively Mr Borkovic had a capacious spinal canal with no compression of the exiting nerve roots. Mr Borkovic did note improvement postoperatively but this was short-lived as his bilateral lower limb pain, suggestive of sciatica, recurred.
Mr Borkovic lodged a claim for DSP and this was accepted on 2 November 2011. Following the receipt of a lump sum payment from the TAC in May 2013 Mr Borkovic’s DSP was cancelled and he was precluded from reapplying until 29 October 2014.
Magnetic residence imaging (MRI) has confirmed that Mr Borkovic has moderate degenerative osteoarthrosis involving his hips as well as both knees, the left more than the right. These conditions result in chronic pain requiring medication and limit Mr Borkovic’s walking distance and the range of movement of his knees, hips and spine.
On 11 November 2014, Mr Borkovic underwent a JCA performed by a registered physiotherapist. His spinal condition was determined to be severe lumbar canal stenosis with disc prolapse, which attracted a rating of 10 impairment points. The assessor also considered Mr Borkovic’s hip and knee conditions to be fully diagnosed, treated and stabilised and therefore attracting a recommended impairment rating of 10 points as there was moderate functional impact on activities using the lower limbs.
Mr Borkovic’s other medical conditions − obesity, hypertension, synovitis and tenosynovitis of his right ring finger, asthma and an umbilical hernia (recently repaired) − while all fully diagnosed, did not affect his capacity for work and did not attract an impairment rating. It was noted that Mr Borkovic had not met the requirement of active participation in a program of support. Mr Borkovic’s work capacity was assessed at eight to 14 hours per week as a baseline. With appropriate intervention it should rise to 15 to 22 hours per week in two years’ time.. At the time of this assessment the report by Mr John Stoney regarding the appropriateness of further surgery had not been received.
In 2012 Mr Borkovic was assessed by Mr David Brownbill, neurosurgeon, and Mr Clive Jones, orthopaedic surgeon. These assessments appear to have been done for medico-legal purposes related to his TAC claim. Mr Jones regarded the spinal surgery as having failed resulting in a poor outcome and believed that Mr Borkovic’s hip symptomatology was due to early degenerative change. In view of the persisting chronic back pain following decompression surgery, Mr Jones regarded Mr Borkovic as having no capacity for work at that time.
Mr Brownbill considered Mr Borkovic’s lumbar spinal symptomatology to be due to long standing, multiple level lumbar spinal degenerative changes rendered symptomatic by the MVA, with the symptoms persisting despite surgery, resulting in Mr Borkovic’s inability to return to his pre-injury employment. Both Mr Jones and Mr Brownbill agreed with the suggestion that a psychological assessment would be appropriate, given Mr Borkovic showed symptoms suggestive of depression.
Mr Borkovic’s general practitioner, Dr Wegrzynowski, has provided numerous reports and completed the treating doctor’s statements accompanying his DSP claims. She has strongly supported his application for the DSP. In addition to the conditions outlined above, Dr Wegrzynowski considers Mr Borkovic’s obesity to be of a morbid degree and contributing to his disabilities and that he has depression secondary to his chronic pain and disabilities. He also has sleep apnoea which has apparently been investigated but not treated, an umbilical hernia repaired on 6 August 2014, and a right inguinal hernia diagnosed in March 2015 and bilateral carpal tunnel syndrome diagnosed in April 2015.
Dr Wegrzynowski has suggested that Mr Borkovic might require surgery to the left and right carpal tunnel regions as steroid injections into the area of the median nerve have been of limited benefit. As noted, Mr Borkovic is awaiting further hip surgery and possible knee surgery. Dr Wegrzynowski states that Mr Han will reassess his lumbar spine after completion of the hip and knee replacements. It would appear from Dr Wegrzynowski’s report of 30 May 2015 that Mr Borkovic has been taking antidepressant medication as of 17 April 2015. However, there is no reference to his having consulted a clinical psychologist or a psychiatrist to confirm this diagnosis. The postulated diagnosis of depression has been rejected by Centrelink and the SSAT on the basis that this diagnosis, as provided by the guidelines to the Social Security Act 1991 (the Act), must be made by a qualified person, which means a clinical psychologist or psychiatrist.
The current plan is for Mr Borkovic to undergo left total hip replacement in three months’ time, provided his recovery from the right hip replacement continues to progress as expected. He would then be reassessed by Mr Stoney with regard to his left knee and whether surgery on that joint is required. It is also planned that Mr Han will reassess his lumbar spinal pain and function once the left hip has been replaced.
RELEVANT LEGISLATION
The criteria for a DSP are described in s 94 of the Act which states:
94Qualification for disability support pension
(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;
(ii)the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; ...
A severe impairment is defined in s 94(3B) of the Act as follows:
Severe impairment
(3B) A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.
Example 1:A person’s impairment is of 30 points under the Impairment Tables, made up of 20 points under one Impairment Table and 10 points under another Impairment Table. The person has a severe impairment.
Example 2:A person’s impairment is of 40 points under the Impairment Tables, made up of 20 points under one Impairment Table and 20 points under another Impairment Table. The person has a severe impairment.
Example 3:A person’s impairment is of 20 points under the Impairment Tables, made up of 10 points each under 2 separate Impairment Tables. The person does not have a severe impairment.
Part 2 of the POS Determination defines the criteria for active participation in a program of support. Section 5(1)(a) stipulates that, for the criteria to be satisfied, a person must participate in such a program for at least 18 months. If, for various specified reasons, this has not been possible, the 18 month period can be reduced.
SUBMISSIONS
Neither party made formal submissions. Mr and Mrs Borkovic took the opportunity to express their disappointment with the course of events, namely that having received the DSP and then having it cancelled because of a third party impairment lump sum payment, Mr Borkovic no longer qualifies for the DSP following changes to the legislation in late 2011. They stressed that the treating general practitioner, the treating neurosurgeon and orthopaedic surgeon and the so-called expert medical opinions of Mr Jones and Mr Brownbill all indicated that Mr Borkovic was unlikely to work again.
Mr Borkovic advised the Tribunal that he does not qualify for newstart allowance or sickness benefits because of his combined assets assessment.
Mr Nguyen, appearing for the Respondent, relied on the contents of the Statement of Facts and Contentions and submitted that Mr Borkovic did not satisfy s 94(1)(b) of the Act, as his impairment rating based on those conditions that were fully diagnosed, treated and stabilised was only 10 points.
Mr Borkovic informed the Tribunal that he had undergone right hip total replacement on 20 May 2015 as a private patient following the TAC’s approval of Mr Stoney’s request for approval and agreement to pay the fees for this surgery. In addition, approval had been given for subsequent left total hip replacement.
TRIBUNAL’S DELIBERATIONS
It is clear from the medical reports and opinions provided that Mr Borkovic satisfies s 94.1(a) of the Act in that he has documented and symptomatic lumbar spinal degenerative disease with mild to moderate canal stenosis despite his laminectomy. He also has bilateral osteoarthrosis of his hips and knees. He suffers from a number of additional medical conditions. However, his asthma, hypertension, repaired hernia and treated peptic ulcer do not affect his capacity for work. And his obesity, depression, sleep apnoea and more recent inguinal hernia and bilateral carpal tunnel syndromes have not been fully diagnosed, treated and stabilised. In addition, the last two conditions fall outside the period of review, which ended on 28 January 2015.
In November 2011 Mr Borkovic satisfied the legislative requirements for DSP as he attracted an impairment rating of 20 points for his spinal disorder which was then far more symptomatic despite his laminectomy. However, by 2014, when he was reassessed, both the Impairment Tables and the inability for work requirements stipulated in the Act had been revised. In accordance with the Impairment Tables operative in 2014, Mr Borkovic’s spinal disorder attracted an impairment rating of only 10 points as he was able to drive for 30 minutes but could not pick up an object at knee height.
At the JCA on 11 November 2014, the physiotherapist assigned an impairment rating of 10 points for Mr Borkovic’s lower limb dysfunction. This was based on her understanding that his condition was fully treated and stabilised. However, she was unaware that Mr Stoney on 15 December 2014, − within the period under consideration, – recommended total hip replacement bilaterally and left knee replacement to control Mr Borkovic’s lower limb symptoms. This recommendation means that Mr Borkovic’s lower limb conditions have not been fully treated and stabilised and thus cannot attract an impairment rating.
The question of the permanency of a medical condition was addressed by Deputy President Hack in Coates and Secretary, Department of Employment and Workplace Relations [2006] AATA 938, and more recently by Deputy President Handley in Fanning and Secretary, Department of Social Services [2014] AATA 447. These decisions deal with the question of reasonable treatment and whether it is likely to result in significant functional improvement, the question of a condition’s stabilisation, the effect of treatment, the timing of the claim and in the 13 weeks thereafter, but not after the relevant period has expired.
The Tribunal accepts the assessment of Mr Borkovic’s impairment rating at 10 points as found by the SSAT. As a result, Mr Borkovic does not qualify for the DSP. The Tribunal agrees that the current impairment rating for his spinal disorder is correctly estimated at 10 points. It is noted that in the past two months, he is said to have developed bilateral carpal tunnel syndrome and has commenced treatment for depression.
It is far too early to assess the efficacy of his right total hip replacement and he has yet to undergo left total hip replacement. Clearly, the results of these procedures will need to be assessed in the months to come should he wish to reapply for the DSP. His depression should be assessed as to its severity, treatment and response to treatment by a clinical psychologist or psychiatrist. It is not clear to the Tribunal whether further spinal surgery is indicated but it is noted that his neurosurgeon Dr Han is to reassess him after both hips have been replaced.
Based primarily on the medical evidence provided to the Tribunal the decision under review is affirmed.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for the decision herein of:
Miss E A Shanahan, Member[sgd]........................................................................
Administrative Assistant
Dated 1 July 2015
Date of hearing 1 June 2015 Applicant In person Advocate for the Respondent Nam Nguyen Solicitors for the Respondent Sparke Helmore
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Appeal
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Judicial Review
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Procedural Fairness
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Standing
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Statutory Construction
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Remedies
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