Djerdj Camaj and Secretary, Department of Social Services
[2014] AATA 412
•25 June 2014
[2014] AATA 412
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/4532
Re
Djerdj Camaj
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Dr Ion Alexander, Member Date 25 June 2014 Place Sydney The decision under review is affirmed.
...................[sgd].....................................................
Dr Ion Alexander, Member
CATCHWORDS
SOCIAL SECURITY – pensions – disability support pension – whether applicant’s conditions were fully diagnosed, treated and stabilised – whether applicant’s impairment is rated 20 points or more under the Impairment Tables – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth)
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Dr Ion Alexander, Member
25 June 2014
BACKGROUND
On 13 December 2012 Mr Camaj lodged a claim for Disability Support Pension (DSP) on the basis that his various medical conditions were having an impact on his ability to function. The conditions included “cervical & lumbar spine degenerative disease, bilateral compartment syndrome legs, diabetes, fatty liver, depression [and] kidney stones.”
Mr Camaj’s claim was rejected by Centrelink, both initially and on internal review, and subsequently the Social Security Appeals Tribunal (SSAT) on the basis that he did not satisfy the requirements of s 94 of the Social Security Act 1991 (the Act), in particular s 94(1)(b) in that he did not have an impairment rating of at least 20 points under the Impairment Tables.
In this proceeding Mr Camaj seeks review of the decision of the SSAT.
At the hearing Mr Camaj was self- represented and assisted by an Albanian language interpreter.
ISSUES
In order to be qualify for DSP Mr Camaj had to satisfy the requirements of s 94 of the Act as at the date of the claim or within 13 weeks of lodging the claim (“the claim period”), in accordance with the requirements of the Social Security (Administration) Act 1999, that is, 13 December 2012 to 13 March 2013.
It is agreed that Mr Camaj satisfied s 94(1)(a) of the Act.
The respondent agreed that Mr Camaj’s degenerative spine condition is permanent within the meaning of the Act and submitted that this condition warrants a rating of 10 points under Table 4 – Spinal Function.
The respondent contends that during the claim period, apart from his degenerative spine condition, none of Mr Camaj’s other impairments satisfied the rules to be assessed under the Impairment Tables or, if they did, they caused minimal functional impact and were rated 0 points so he did not satisfy s 94(1)(b) of the Act.
The respondent also submits that if the Tribunal finds that even if Mr Camaj’s rating under the Impairment Tables was 20 points or more he did not have a continuing inability to work as required by s 94(1)(c).
Therefore the issues to be decided are whether during the claim period Mr Camaj’s impairment had a rating of 20 points or more under the Impairment Tables and, if so, whether he had a continuing inability to work.
IMPAIRMENT RATING
On 11 January 2013, Mr Camaj attended a face to face Job Capacity Assessment (JCA) which was undertaken by a psychologist with contribution from an occupational therapist.
In a report dated 1 February 2013 the assessor listed several medical conditions including lower limb (bilateral compartment syndrome), spinal (cervical and lumbar spine degenerative disease), gastroenterological (IBS and GORD), urinary tract and endocrine (metabolic syndrome) conditions.
The spinal condition was considered fully diagnosed, treated and stabilised and therefore permanent within the meaning of the Act and assigned an impairment rating of 5 points.
The lower limb and urinary conditions were considered to be fully diagnosed, but not fully treated and stabilised and therefore not able to be assessed under the Impairment Tables.
The gastroenterological and endocrine conditions were considered to be fully diagnosed, treated and stabilised but well managed with minimal functional impact and assigned an impairment rating of 0 points.
I note the condition of depression which was included in Mr Camaj’s claim was not considered in this assessment.
In a letter dated 8 May 2013 a Centrelink Authorised Review Officer (ARO), after reviewing the evidence including the JCA report of 1 February 2013, confirmed an impairment rating of 5 points.
In the letter the ARO referred to “depression” as a diagnosed medical condition even though it had not been considered in the JCA report. Since Mr Camaj had not provided a report from either a psychiatrist or a clinical psychologist the ARO stated this condition could not be assigned an impairment rating.
In a decision dated 21 August 2013 the SSAT considered the evidence in respect of Mr Camaj’s spine condition and decided that the correct rating under Impairment Table 4 was 10 points which has now been accepted by respondent.
The SSAT considered Mr Camaj’s condition of depression and noted that he had been treated by a psychologist, Dr Jacmon, for 10 sessions starting in October 2012.
The SSAT noted that the Introduction to Table 5 (Mental Health Function) states that the diagnosis of a mental health condition “must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist)”.
The SSAT made reference to the Australian Health Practitioner Regulation Agency (AHPRA) and found that Dr Jacmon was not a registered clinical psychologist.
The SSAT concluded that as Mr Camaj’s diagnosis of depression, during the claim period, had not been diagnosed in accordance with the requirements of Impairment Table 5 an impairment rating could not be assigned.
MR CAMAJ’S EVIDENCE
At the hearing Mr Camaj did not give any evidence although he did confirm that he had seen Dr Jacmon prior to his application for DSP and that he had not seen a psychiatrist or clinical psychologist until February 2014, eleven months after the end of the claim period.
MEDICAL EVIDENCE
On 23 September 2011 Dr Maniam, orthopaedic surgeon, provided a medico-legal report for the purpose of a worker’s compensation claim in respect of injuries to both Mr Camaj’s lower limbs.
Dr Maniam referred to radiological studies of the lumbar spine and ultrasound studies of Mr Camaj’s lower limbs performed in January 2010.
Dr Maniam diagnosed “chronic partial thickness tears of the quadriceps muscles and both calf muscles” and noted that Mr Camaj had been treated conservatively with physiotherapy, exercises and medication.
Dr Maniam noted that current treatment included anti-inflammatory medication and regular stretches and that physiotherapy had ceased. He also noted that Mr Camaj’s symptoms were stable and that pain was only experienced after physical effort.
I note that an ultrasound examination of “both calves” dated 22 January 2010 is reported as showing changes in the “distal gastrocnemius muscle bilaterally” which do not appear to be tears and were most likely to be due to a chronic process and of doubtful significance.
I note that this report does not mention tears in the quadriceps muscle or confirm tears in the calf muscles.
In a Centrelink Medical Report dated 12 December 2012 Dr Maniam lists cervical and lumbar spine degenerative disease and bilateral compartment syndrome as medical conditions which have a significant impact on Mr Camaj’s ability to function but provides little useful information to assist the Tribunal in reaching a conclusion as to the functional impact of these conditions.
Dr Maniam lists hypertension, diabetes, kidney stones, fatty liver and depression as medical conditions that are generally well managed and cause minimal or limited impact but he provides no useful information to assist the Tribunal.
In an undated Centerlink Medical Report stamped as being received on 27 February 2013 Dr Maniam lists cervical and lumbar spine degenerative disease, bilateral compartment syndrome and depressive illness as medical conditions that have a significant impact on Mr Camaj’s ability to function.
This report can best be described as superficial and provides little assistance to the Tribunal.
In a letter dated 8 April 2012 Dr Li, Mr Camaj’s general practitioner, provides a summary of consultations between August 2009 and March 2012 which does provide sufficient information to assist the Tribunal in reaching a satisfactory conclusion as to status of Mr Camaj’s claimed medical conditions during the claim period.
In a letter dated 12 February 2013 Dr Jacmon, consultant psychologist, confirms that Mr Camaj had attended five monthly sessions for treatment of depression and that treatment is planned to continue.
The Tribunal was provided with several medical reports all dated in 2014 including reports from a clinical psychologist, psychiatrist, Mr Camaj’s GP, Dr Li, and an MRI scan of the lumbar spine.
These reports confirm the diagnosis of a mental health condition, a degenerative lumbar condition and an endocrine condition (diabetes) and may assist Mr Camaj in a new application for DSP, but do not provide any assistance in determining the status of Mr Camaj’s claimed medical conditions during the claim period for this application.
CONSIDERATION
The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination2011 (the Determination) requires that an impairment rating can only be assigned to an impairment if the condition causing that impairment is permanent.
The Determination also provides that a condition is permanent if it has been fully diagnosed, fully treated, fully stabilised and is more likely than not to persist for more than two years.
There is no dispute that during the claim period Mr Camaj suffered from a degenerative spine condition that had some impact on activities involving his spinal function.
For present purposes I accept the respondent’s contention that a rating of 10 points under Impairment Table 4 was appropriate.
I accept that prior to his application for DSP Mr Camaj was under psychological treatment for depression. However, I agree with the decision of the SSAT that, during the claim period, this condition was not fully diagnosed in accordance with the requirements of Impairment Table 5 and could not be assigned an impairment rating.
In respect of Mr Camaj’s other claimed medical conditions, including his lower limb condition, I am satisfied that there is insufficient medical evidence before the Tribunal to come to any meaningful conclusion as to whether, during the claim period, they were fully diagnosed, treated or stabilised and therefore could not be assigned an impairment rating.
DECISION
For the reasons set out above I am satisfied that during the claim period Mr Camaj’s impairment rating under the Impairment Tables was 10 points.
This means that Mr Camaj did not satisfy the requirements of s 94(1)(b) of the Act and therefore was not qualified for DSP.
The decision under review is affirmed.
I certify that the preceding 47 (forty-seven) paragraphs are a true copy of the reasons for the decision herein of Dr Ion Alexander, Member ................[sgd]........................................................
Associate
Dated 25 June 2014
Date of hearing 13 June 2014 Applicant In person Advocate for the Respondent Ms B Salaji, Department of Human Services
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