GARY ZERVOS and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2012] AATA 177
•23 March 2012
[2012] AATA 177
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/4770
Re
GARY ZERVOS
APPLICANT
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 23 March 2012 Place Brisbane The Tribunal affirms the decision under review.
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Senior Member
CATCHWORDS
SOCIAL SECURITY – Benefits and entitlements - Disability support pension – Physical impairment from orthopaedic conditions, hernia and gastro oesophageal reflux – Pending further treatment – Orthopaedic conditions not fully treated and stabilised – No allocation of impairment rating under the Tables in Schedule 1B – Decision under review affirmed.
LEGISLATION
Social Security Act 1991 (Cth) s 94, Schedule 1B
Social Security (Administration) Act 1999 (Cth) Schedule 2
REASONS FOR DECISION
Mr R G Kenny, Senior Member
23 March 2012
BACKGROUND
On 20 October 2010, Gary Zervos lodged a claim with Centrelink for disability support pension which is payable under the Social Security Act 1991 (Cth) (the Act). His claim was rejected on 20 December 2010. On 27 January 2011, an authorised review officer affirmed the decision as did the Social Security Appeals Tribunal (SSAT) on 6 October 2011.
LEGISLATION AND ISSUES
The qualifications to receive a disability support pension are set out in s 94 of the Act. It is common ground that Mr Zervos meets the age and residency requirements of that provision. The remaining requirements thereof are:
·that Mr Zervos have a physical, intellectual or psychiatric impairment (s 94(1)(a)); and, if so
·he have an impairment rating of 20 points or more which is calculated under the Impairment Tables in Schedule 1B of the Act ("the Tables") (s 94(1)(b)); and, if so
·he have a continuing inability to work (s 94(1)(c)(i)).
To qualify for a disability support pension, all of the requirements in s 94 of the Act must be met. Further, they must be met at the time of the initial claim or in the period of 13 weeks from the day of the claim.[1] In regard to Mr Zervos’ claim, this is from 20 October 2010 until 19 January 2011 (the relevant period). In the initial decision, it was determined that, during the relevant period, Mr Zervos' impairment totalled zero points under the Tables. In the decision of the authorised review officer, it was determined that the impairment rating under the Tables was zero and that Mr Zervos did not have a continuing inability to work. The SSAT, on 6 October 2011, affirmed the decision on the basis that the appropriate impairment rating under the Tables was zero although it conceded that Mr Zervos did not have a capacity to work.
[1] See sch 2, cl 3 and cl 4 of the Social Security (Administration) Act 1999 (Cth).
It is not disputed that Mr Zervos has physical impairments. The issues for the Tribunal are whether Mr Zervos has an impairment rating of at least 20 points under the Tables and, if so, whether he has a continuing inability to work as required by s 94(1)(c)(i) of the Act, during the relevant period. For a continuing inability to work, the relevant parts of s 94 of the Act read:
(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(a)the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b)either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity—such training is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
(3) In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a)the availability to the person of a training activity; or
(b)the availability to the person of work in the person's locally accessible labour market.
(4) A person is treated as doing work independently of a program of support if the Secretary is satisfied that to do the work the person:
(a)is unlikely to need a program of support that:
(i) is designed to assist the person to prepare for, find or maintain work; and
(ii) is funded (wholly or partly) by the Commonwealth or is of a type that the Secretary considers is similar to a program of support that is funded (wholly or partly) by the Commonwealth; or
(b)is likely to need such a program of support provided occasionally; or
(c)is likely to need such a program of support that is not ongoing.
(5) In this section:
training activity means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments:
(a)education;
(b)pre-vocational training;
(c)vocational training;
(d)vocational rehabilitation;
(e)work – related training (including on-the-job training).
work means work:
(a)that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
(b)that exists in Australia, even if not within the person's locally accessible labour market.
EVIDENCE
Dr Anthony Brown was Mr Zervos’ treating doctor at the time of his claim. He completed a detailed report, dated 8 November 2010, as part of the claim process. Dr Brown identified two conditions that had a significant impact on Mr Zervos.
The first condition was “osteoarthritis cervical spine with nerve impingement in C5/C6”. He confirmed the diagnosis on a presumptive basis and advised that further tests were planned to confirm the diagnosis. He described it as “progressively worsening” with treatment at the time comprising “yoga, exercise and tai chi”. Dr Brown noted that planned treatment involved “referral to Nambour Orthopaedics” for nerve conduction studies of Mr Zervos’ upper limbs. He also wrote that, in the following two years, the condition may deteriorate unless he had an operation.
The second condition was “L knee ACL[2] repair and revision; R knee osteoarthritis +/-ligament/meniscal injury; R ankle with ruptured Achilles tendon – 1992”. Again, he confirmed a presumptive basis for the diagnosis which required further tests for confirmation. He described symptoms at that time of swelling in joints and limitation of walking slowly to 500 metres. Dr Brown identified physiotherapy as the then current treatment and noted a previous left knee ACL reconstruction on 30 July 2010 with a revision of the procedure on 10 September 2010. For each of those procedures, Dr Brown advised that Mr Zervos had been hospitalised for one night. He wrote that further physiotherapy and a right knee arthroscopy were planned.
[2] A reference to anterior cruciate ligament.
In his report, Dr Brown identified two other conditions under the heading “of other medical conditions that are generally well managed and that cause minimal or limited impact on ability to function”. These were “post-op hernia in abdomen” and gastro oesophageal reflux disease (“GORD”).
Mr Zervos said that the surgeon who operated on his knee was Dr Dick and that his treating doctor from about February 2011 was Dr Gerard Walpole. In evidence was a report, dated 12 September 2011, from Dr Walpole who also gave oral evidence. Dr Walpole referred to Mr Zervos’ left knee reconstruction as unsuccessful and to being complicated by a right ankle fracture. He said that this was now inoperable because tests by Dr Dick had revealed that he now suffers from rheumatoid arthritis. He wrote that, in the eight months that he had treated Mr Zervos, he was unfit for any work requiring him to walk more than 25 metres or to squat or stand for more than 10 minutes. He also wrote that, for Mr Zervos to become fit for work, he would need to undergo “an intensive rehabilitation program which addresses his complex multidisciplinary orthopaedic and neurological problems”. In his evidence, Dr Walpole confirmed that he had treated Mr Zervos from February to September 2011 and said that the prospect of improvement in Mr Zervos’ orthopaedic conditions was very low. In that regard, he described Dr Brown’s report as aspirational. Dr Walpole noted that Dr Brown had not mentioned rheumatoid arthritis. He could not explain this and noted that it had been diagnosed by Dr Dick.
Mr Zervos was examined by Ms Pam Walker, registered occupation therapist, on 22 November 2010 and her report was in evidence. In her report, she refers extensively to the report of Dr Brown. Based on that report and her examination of Mr Zervos, Ms Walker described Mr Zervos’ neck disorder as permanent but not fully treated or stabilised. Her opinion was that Mr Zervos’ knee conditions were temporary and not fully diagnosed, treated or stabilised. She reached the same conclusion in relation to Mr Zervos’ hernia. By contrast, she described his ankle condition and his GORD as permanent, fully diagnosed, treated and stabilised. For the two conditions described by Ms Walker as being permanent, she allocated no impairment ratings under the Tables noting that there were “nil current” symptoms in relation to Mr Zervos’ right ankle and that his GORD was “generally well managed with minimal or limited impact” on him. For the other conditions, no ratings were recommended because of her opinion that they were not permanent and were not fully diagnosed, treated and stabilised.
In relation to Mr Zervos’ employment prospects, Ms Walker concluded that he had a temporary (reduced) work capacity of 0 to 7 hours per week for the period 18 November 2010 until 18 June 2011. Her conclusion was that, thereafter, he had a baseline work capacity of 8 to 14 hours per week in moderate semi-skilled work, such as gardening or lawn maintenance. Ms Walker concluded that Mr Zervos had a work capacity of 15 to 22 hours per week with intervention such as alternative medical treatment options, counselling, job matching, volunteer work and specialised job seeking.
Mr Zervos said that he did not have the capacity for walking or squatting as reflected in the reports of Dr Brown and Ms Walker. He described his orthopaedic operations as being unsuccessful and said that his problem now was that rheumatoid arthritis meant that he was unable to undergo any further surgical intervention. He estimated his walking capacity as being 25 metres but agreed that he might be able to walk as far as indicated by Dr Brown if he progressed very slowly. He also denied that he had undergone revision surgery on his left knee. He described his medication as comprising herbal remedies.
SUBMISSIONS
Mr Zervos was critical of the medical report from Dr Brown and the job capacity assessment report from Ms Walker which were relied on by Centrelink and the SSAT. Mr Zervos submitted that Dr Brown did not understand Centrelink procedures and gave incorrect information in his report about his medical conditions. He submitted that Ms Walker did not conduct an appropriate examination of him and reached incorrect conclusions about his physical limitations and his capacity to work.
For the respondent, Mr McQuinlan submitted that Dr Brown’s report should be relied upon to assess Mr Zervos’ incapacity in the relevant period. He submitted that it was the information in that report which enabled Ms Walker to recommend a total of zero points under the Tables for Mr Zervos’ medical conditions which were fully diagnosed, treated and stabilised. He noted that Ms Walker’s report assessed Mr Zervos as having a temporarily reduced work capacity to 0 – 7 hours per week from 18 November 2010 but with a baseline work capacity of 8 – 14 hours at the time of her report with future work capacity of 15 – 22 hours per week with intervention over two years.
CONSIDERATION
Schedule 1B of the Act has an Introduction which provides guidance in the application of the various Tables which it contains. Part of that Introduction reads:
…
4. A rating is only to be assigned after a comprehensive history and examination. For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. …
5. The condition must be considered to be permanent. Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years. A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.
6. In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:
what treatment or rehabilitation has occurred;
whether treatment is still continuing or is planned in the near future;
whether any further reasonable medical treatment is likely to lead to significant
functional improvement within the next 2 years …
I have noted Mr Zervos’ criticism of Dr Brown’s report. Dr Walpole described Dr Brown’s report as “aspirational”. However, Dr Brown’s formal qualifications are not in dispute and there is nothing before me to support the contention that he was unaware of Centrelink requirements. His report was contained in a standard form Centrelink document. Also, it is significant that he was Mr Zervos’ treating doctor at the time of his claim and I am satisfied that his report must be considered reliable on that basis. Dr Walpole began to treat Mr Zervos in February 2011 which was after the relevant period had ended. While Dr Walpole’s opinion may well have relevance to Mr Brown’s circumstances during the period he was treating him, I am satisfied that it is appropriate to rely on Dr Brown’s report during the relevant period. I am also satisfied that Ms Walker relied on the information contained in Dr Brown’s report and that it was appropriate for her to do so. I note that, in her general summary, Ms Walker noted inconsistency and, at times, contradiction in Mr Zervos’ reporting of symptoms.
I am satisfied from the reports of Dr Brown and Ms Walker that Mr Zervos’ neck condition, knee conditions and hernia were not fully documented and diagnosed conditions which had been investigated, treated and stabilised at the time of his claim and at any time during the relevant period. For that reason no impairment rating may be allocated for them under the Tables. I am also satisfied that his right ankle and GORD were fully documented and diagnosed conditions which had been investigated, treated and stabilised at the time of his claim. I have noted the descriptions given by Dr Brown and Ms Walker and accept that ratings of nil are applicable under the relevant Tables for those conditions[3]. This means that a nil overall impairment rating applies to Mr Zervos’ conditions during the relevant period.
[3] Table 4 in relation to right ankle: Table 11.1 in relation to GORD.
A necessary requirement in s 94 of the Act is that Mr Zervos’ physical impairment, as a result of conditions identified above, must equate to 20 or more points under the relevant Tables. His overall rating of nil means that s 94 of the Act is not satisfied and that Mr Zervos is not qualified for the disability support pension.
In relation to work capacity, Ms Walker noted a temporary reduced capacity to work for only 0 to 7 hours per week but reported that this would increase to 15 to 22 hours per week with intervention. Her assessment relates to the relevant period and I am satisfied that it should be accepted. However, regardless of Ms Walker’s report on Mr Zervos’ capacity to work, s 94 of the Act is not satisfied because of the nil impairment rating under the Tables.
I am satisfied that Mr Zervos does not meet the qualifying criteria for payment of the disability support pension under s 94 of the Act.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 21 (twenty one) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member.
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Associate
Dated 23 March 2012
Date(s) of hearing 14 March 2012 Applicant In person Advocate for the Respondent Rick McQuinlan, Departmental Advocate
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