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

[2017] AATA 1732

Djordjevic and Secretary, Department of Social Services (Social services second review) [2017] AATA 1732 (6 October 2017)

Division:GENERAL DIVISION

File Number(s):      2016/3053

Re:Zoran Djordjevic

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr Bennie Ng, Member

Date:6 October 2017

Place:Melbourne

The decision under review is affirmed

.......................[sgd].................................................

Dr Bennie Ng, Member

Catchwords

SOCIAL SECURITY – disability support pension – impairments – whether all claimed conditions fully diagnosed treated and stabilised – insufficient points under impairment tables – unnecessary to consider continuing inability to work – decision affirmed

Legislation

Social Security Act 1991

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

Cases

Re Fanning and Secretary, Department of Social Services [2014] AATA 447

REASONS FOR DECISION

Dr Bennie Ng, Member

6 October 2017

BACKGROUND

1. Mr Zoran Djordjevic (the applicant) lodged a claim for disability support pension on 23 July 2015. The Department of Human Services (Centrelink) rejected his application on

   
   

   9 September 2015.

2. Mr Djordjevic requested a review of this decision on 24 September 2015. The original decision was affirmed by an authorized review officer (ARO) on 23 December 2015.

3. On 21 January 2016 Mr Djordjevic applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) for a first tier independent review of the decision made by the ARO. On 11 May 2016, the AAT1 affirmed the decision to reject his claim for disability support pension. The Tribunal concluded that his medical conditions attracted a total of 10 points on Impairment Table 1 only, and therefore he did not qualify for disability support pension pursuant to s 94(1)(b) of the Social Security Act 1991 (the Act).  The Tribunal therefore did not need to address whether Mr Djordjevic had a continuing inability to work, the third DSP criteria, under s 94(1)(c)(i). 

4. Mr Djordjevic lodged a second tier review of the decision with the General Division of the Administrative Appeals Tribunal (AAT2) on 8 June 2016.  In this application, he cited that there was sufficient evidence provided to show the impact of his illness, and that he has been “scored unfairly” in all categories and provided further information about how his conditions affect him.

5. The AAT2 independent hearing was conducted on 16 February 2017. Mr Djordjevic was self-represented. He was accompanied by his wife Mrs Zaklina Djordjevic.  The Tribunal was assisted by an interpreter in the Serbian language. However, most of the hearing was conducted in English.

6. The Tribunal was provided with documents associated with the case, however further information was sought after the hearing. New documents were received by the Tribunal on 30 March 2017, which included a letter from Dr Maree Barnes, Sleep Medicine Practitioner at Austin Health.

   ISSUES

7. The principal issue for determination is whether Mr Djordjevic’s application for the disability support pension on 23 July 2015 can be granted.

8. Schedule 2, subclause 4(1) of the Social Security (Administration) Act 1991 requires the Tribunal to assess Mr Djordjevic’s eligibility for DSP from the time of application, which was 23 July 2015, and the 13 weeks after that date, ending 22 October 2015 inclusive.

9. The qualification criteria for the disability support pension are set out in s 94(1) of the Act. The three main criteria are:

   (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)    …

10. In Mr Djordjevic’s claim, he advised that he suffered from:

    ·Spinal pain;

    ·Neck pain;

    ·Sleep apnoea.

11. Dr Zoltan Vilagosh advised that he has been Mr Djordjevic’s General Practitioner at Northcote Plaza Medical Clinic since 9 December 2009.

12. Dr Vilagosh provided medical reports dated 13 July 2015; 21 September 2015; 2 May 2016; and 23 August 2016.  He stated that Mr Djordjevic has suffered from four conditions: chronic back pain/neck pain and sleep apnoea in his July report; and Tietzes’s disease and gastro-esophageal reflux in later reports. Also before the Tribunal were letters from Dr Barnes, sleep Medicine Practitioner; P. Wilde, Consultant Orthopaedic Surgeon; and K. Ting, Sleep Therapist.

13. Although Dr Vilagosh’s letters of 2 May 2016 and 23 August 2016 were provided after the relevant qualification period (which ended 22 October 2015) the Tribunal is entitled to take into account insofar as it is relevant to informing the Tribunal of the applicant’s condition at the time of the qualification period. Deputy President Handley (as he then was) observed in Re Fanningand Secretary, Department of Social Services [2014] AATA 447 that:

    Evidence, such as medical reports, that come into being after the relevant period may still be relevant, but only in so far as they are referrable to the applicant’s condition during the relevant period.

14. The Tribunal has reviewed the letters of Dr Vilagosh and considers them relevant, insofar as Dr Vilagosh outlines the applicant’s conditions prior to his claim and during the claim period.

    THE LEGISLATION

    Impairment Tables

15. The “Impairment Tables” mentioned at s 94(1)(b) of the Act refer to the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Determination). The determination lists 15 separate impairment tables, with each table referring to different bodily functions. The tables are function based rather than diagnosis based, which means it is not enough for an applicant for DSP to simply be diagnosed with a condition which falls under one of the tables, rather, the applicant must be functionally impaired to an extent sufficient to reach 20 points under one or more tables by applying the relevant descriptors. In this way, the Tables are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.

    Impairment – s 94(1)(a)

16. Impairment is defined to mean a loss of functional capacity affecting a person’s ability to work that results from the person’s condition (section 3 of the Impairment Tables).  The presence of a diagnosed condition does not necessarily mean that there will be a functional impact to which an impairment rating may be assigned.

17. The Secretary did not dispute that Mr Djordjevic suffers from a physical, intellectual or psychological impairment. 

18. Considering the concession of the Secretary and the available medical evidence, the Tribunal is satisfied that Mr Djordjevic had these impairments during the qualification period. Section 94(1)(a) is satisfied for the purposes of Mr Djordjevic’s application.

19. Dr Vilagosh subsequently added Tietze’s disease and gastro-esophageal reflux as two other long standing conditions in his correspondences on 21 September 2015 and 2 May 2016.  These will be discussed as part of the review below.

    Impairment rating – s 94(1)(b)

20. In order to meet the second qualification criterion for DSP in s 94(1)(b) of the Act, Mr Djordjevic’s impairments during the relevant period must attract a rating of 20 or more points under the Impairment Tables set out in the Impairment Determination.

21. Under s 6 of the Impairment Determination, impairments associated with conditions can only be assigned a rating if a condition is permanent, which means it has been fully diagnosed, treated and stabilised and likely to persist for more than 2 years.

22. In determining this, subsection 6(5) of the Impairment Determination directs the decision maker to consider what treatment or rehabilitation has occurred in relation to the condition, and whether treatment is continuing or planned in the next 2 years.

23. The Impairment Tables are function based. They describe functional activities, abilities, symptoms and limitations. From this it follows that the ‘descriptors’ in each Table are measures of the functional impact of an impairment – they are examples that assist determination of the rating that may be assigned to an impairment and, in the language of s 11(1)(c), they are ‘the descriptors for that level of impairment’.

24. Under s 10(5) and (6) of the Impairment Determination, a ‘common or combined impairment’ resulting from two or more ‘permanent’ conditions cannot be assigned more than one rating under the Impairment Tables.

25. For the purposes of s 94(1)(b), three key questions are posed 

    (a)Does each impairment under s 94(1)(a) result from a ‘permanent’ medical condition and is the impairment likely to persist for more than 2 years from the date of claim or the qualification period?

    (b)If so, does the impairment cause functional loss and, if so, which Impairment Table applies?

    (c)What is the functional impact of the impairment and what rating should be applied?

26. The Tribunal will consider each of Mr Djordjevic’s impairments in turn.  

    IMPAIRMENTS

    Chronic back and neck pain

27. Mr Djordjevic suffers from chronic back and neck pain.  He was reviewed by Mr Peter Wilde, consultant orthopaedic surgeon at Austin Health in 2013.  At that time, he noted minor lumbar spondylosis on a CT scan and referred Mr Djordjevic for an MRI.  A copy of the MRI report dated 1 October 2013 showed that there was no evidence of vertebral canal stenosis or impingement detected. 

28. The Tribunal specifically made a request, after the hearing, to confirm whether there was any additional advice. However, there was no further correspondence received from Mr Wilde or Austin Health in relation to the back pain since that time.

29. A CT Cervical spine conducted on 1 May 2015, referred by Dr Vilagosh, showed that there were bony disc degenerative changes with narrowing of the nerve root exit foramina at the C3/4 level on the right and on the left at the C4/C5 and C5/C6 levels.  There was a very small left sided disc herniation at the C5/C6 level.  No other abnormality or canal stenosis were identified. A CT Scan of the lumbosacral spine conducted on 9 March 2011 showed sacralisation of L5 with no other abnormality is seen. A CT scan performed 15 March 2016 showed minor disc space narrowing and lipping changes are seen with no disc herniation or other abnormality [at T12/L1 level]. With regard to the L1/2, L3/4, L4/5, and L5/SI levels, no disc herniations or other abnormalities are seen – minor degenerative facet joint changes are noted at L5/S1. There also existed minor disc vacuum with no herniation or other abnormalities.

30. Based on the reasoning outlined above in Fanning, the Tribunal is able to take the 15 March 2016 CT scan into account. The CT scan allows the Tribunal to conclude there has been no considerable deterioration over the qualification period, when compared with the CT scan of the lumbosacral spine performed 9 March 2011.

31. In his medical report at the time of the claim, Dr Vilagosh had prescribed Mr Djordjevic Tramadol 100mg twice a day, Panamax 500mg 1-2 tablets four times a day as needed and Celebrex 200mg once a day. He also indicated that Mr Djordjevic received physiotherapy treatment by Tom Flanagan in 2014.  He also outlined that future treatment will include ongoing medicine therapy. Mr Djordjevic has undergone physiotherapy and hydrotherapy without success. The Tribunal is satisfied the diagnosed condition is being treated to a degree that renders the condition fully stabilised for the purposes of the Act and Impairment Determination.

32. The Tribunal is satisfied, as was the AAT1, that the Applicant’s condition is fully diagnosed, treated and stabilised. As will be seen below from further analysis of Dr Vilagosh’s report, the Tribunal is also satisfied that the condition will last for at least 2 more years.

33. When considering the functional impact Mr Djordjevic’s condition, it will be assessed in relation to spinal function under Table 4, as he has a permanent condition resulting in functional impairment when performing activities involving spinal function, that is, bending or turning the back, trunk or neck.

34. Table 4 stipulates that the diagnosis of the condition must be made by an appropriately qualified medical practitioner and self-report of symptoms alone is insufficient.  Corroborating evidence for the purpose of this Table include, but are not limited to, the following:

    ·a report from the person’s treating doctor;

    ·a report from a medical specialist confirming diagnosis of conditions commonly associated with spinal function impairment (e.g. spinal cord injury, spinal stenosis, cervical spondylosis, lumbar radiculopathy, herniated or ruptured disc, spinal cord tumours, arthritis or osteoporosis involving the spine);

    ·a report from a physiotherapist or other rehabilitation practitioner confirming loss of range of movement in the spine or other effects of spinal disease or injury.

35. The Tribunal will assess the functional impact on activities based on Table 4, set out below:

5

There is a mild functional impact on activities involving spinal function.

(1)      The person has some difficulty in:

(a)      activities over head height (e.g. activities requiring the person to look upwards); or

(b)      bending to knee level and straightening up again without difficulty; or

(c)      turning their trunk or moving their head (e.g. to look to the sides or upwards).

10

There is a moderate functional impact on activities involving 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); or

(b)      the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or

(c)      the person is unable to bend forward to pick up a light object placed at knee height; or

(d)      the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).

20

There is a severe functional impact on activities involving spinal function.

(1)      The person is unable to:

(a)      perform any overhead activities; or

(b)      turn their head, or bend their neck, without moving their trunk; or

(c)      bend forward to pick up a light object from a desk or table; or

(d)      remain seated for at least 10 minutes.

1. In his medical assessment, Dr Vilagosh stated that Mr Djordjevic had difficulty in moving, and with prolonged sitting.  He expected the condition to persist over 24 months and that his ability to function would fluctuate.

2. Mr Djordjevic’s evidence was further reported in two job capacity assessments, dated 8 September and 5 November 2015.

3. The first report made the following observations:

   ·Mr Djordjevic was able to stand from a seated position independently and was observed to do this during the assessment

   ·He avoids driving but can do when required and will drive to his employment provider appointments

   ·He was able to shower, dress self and wash hair

   ·He was reported to have walking and sitting tolerances of 15-20 minutes before resting and continuing

   ·He is able to make himself a sandwich and would like be able to do the dishes, despite never undertaken household chores

   ·He was able to dress himself independently including shoes, but will often put on slip on shoes

   ·He was able to walk around a shopping centre with wife

   ·He was able to sit for 25 minutes during assessment without requiring rest

   ·He was able to go to the local pool/spa on a regular basis and was able to drive himself there and get into and out of the spa independently.  [sic]

4. In the second report, the following observations were made:

   ·Mr Djordjevic was able to stand from a seated position independently and was observed during assessment

   ·He reported he was able to self-care and walk for 15-20 minutes

   ·He was observed to sit for 20 minutes without difficulty

   ·He reported he was able to bend slowly, but cannot bend to the floor.

5. At the AAT1 review, Mr Djordjevic told the Tribunal that he was unable to sit for long, or stand or turn his body and cannot bend. He said he was unable to bend to knee height but can pick up a light object from a table such as a newspaper.  He was unable to drive because of numbness in his leg and the pain in his back, and unable to turn his head sufficiently to drive, with more restriction on the left than then right.

6. At the AAT2 hearing, Mr Djordjevic re-iterated that he relies on his wife for many chores, however, he clarified that he can bend down and do his own dressing. The Tribunal noted that Mr Djordjevic did not appear to have any issue sitting through the entire hearing, which was over 80 minutes.

7. The Tribunal accepts Mr Djordjevic has had chronic back and neck pain which is fully diagnosed, treated and stabilised.  Based on the available evidence, the Tribunal accepts that there was mild functional impact to Mr Djordjevic on activities involving his spinal function, which attracts an impairment rating of 5 points under Table 4.

   Sleep apnoea

8. Dr Vilagosh reported that Mr Djordjevic has been suffering from sleep apnoea. In his letter dated 21 September 2015, he contends that the conditions led to tiredness and poor sleep resulting in poor concentration.

9. Dr Maree Barnes, the Sleep Medicine Practitioner at Austin Health, reviewed Mr Djordjevic and reported to Dr Vilagosh on 28 July 2015.

10. The condition of sleep apnoea was confirmed by Dr Barnes. Mr Djordjevic was prescribed with Continuous Positive Airway Pressure (CPAP) therapy.

11. In her correspondence, Dr Barnes stated that Mr Djordjevic and his wife were very pleased with the CPAP therapy.  Mr Djordjevic was using it all night, every night with an average of seven hours of sleep.  He reported not being tired during the day and his energy levels had improved.

12. In a recent letter received from Austin Health to Dr Vilagosh, it was noted that Mr Djordjevic failed to attend his appointment again and therefore discharged from the sleep clinic.

13. Based on the medical evidence, the Tribunal is satisfied that Mr Djordjevic’s sleep apnoea has been fully diagnosed, treated and stabilised.  The Tribunal considers that there was no corroborative evidence to support a finding that the sleep apnoea has affected Mr Djordjevic’s activities during the day or caused functional impairment. The Tribunal therefore deems it unnecessary to provide an impairment rating.

    Tietze’s disease

14. In his letter dated 21 September 2015, Dr Vilagosh indicated Mr Djordjevic suffers from Tietze’s disease, manifesting in episodic chest pain requiring episodic analgesia, and limits the ability to lift objects.

15. In an undated letter with a letterhead of Dr Alfred J Wall, gastroenterologist at Royal Melbourne Hospital Private Medical Centre, which is unnamed but assumed Mr Djordjevic as the patient, it stated that the patient had “costochondritis”, “Tietze’s Syndrome” and the doctor suggested to try local rub, anti-inflammatory, pain relief and local injection.

16. There was no other follow up from Dr Wall or other medical specialists after this correspondence.

17. Mr Djordjevic told the Tribunal that he has pain occasionally around his chest when he breathes. However, there is a lack of corroborative evidence to demonstrate the disease’s functional impact on his activities of daily living.

18. The Tribunal is not satisfied that there is sufficient medical evidence to show the condition was fully diagnosed, treated, or stabilised. As a result no impairment rating is required.

    Gastro-esophageal reflux

19. This condition was not mentioned in the medical report in July 2015.  In his letter dated 21 September 2015, Mr Djordjevic indicated the reflux disease produces episodic upper abdominal and chest pain.  He was prescribed Pariet EC tablets 20mg one tablet twice a day with the last script date of 20 March 2015.

1. At the first tier AAT hearing, Mr Djordjevic raised the issue of ‘allergy’ to tomato-based food. He reiterated the nature of this allergy, whereby it appears that the gastro-esophageal symptoms are worse after ingesting tomatoes based foods. Mr Djordjevic has not been referred or tested by another specialist but admitted that these symptoms are preventable if he is careful with what he eats.

2. From a functional point of view, there is no evidence that Mr Djordjevic was affected by this condition. There was also question about whether he has been fully assessed, investigated and treated about the symptoms related to consumption of tomato-based food.

3. The tribunal is not persuaded that there was sufficient medical evidence to show the condition was fully diagnosed, treated and stabilised.

   CONCLUSION

4. In summary, Mr Djordjevic attracted a total impairment rating of 5 points for his impaired spinal function from chronic back and neck pain.

5. As Mr Djordjevic does not have an impairment rating of 20 points or more under the legislation, he does not satisfy paragraph 94(1)(b) of the Act.

6. In this regard, there is no requirement to consider s94(1)(c) - whether or not he has a ‘continuing inability to work’.

7. The decision under review is affirmed.

I certify that the preceding 61 (sixty-one) paragraphs are a true copy of the reasons for the decision herein of Dr Bennie Ng, Member

..........................[sgd]..............................................

Associate

Dated: 6 October 2017

Date(s) of hearing:	16 February 2017
Date final submissions received:	30 March 2017
Applicant:	In person
Solicitors for the Respondent:	Department of Human Services