Govedarica and Secretary, Department of Social Services (Social services second review)
[2016] AATA 1068
•22 December 2016
Govedarica and Secretary, Department of Social Services (Social services second review) [2016] AATA 1068 (22 December 2016)
Division
GENERAL DIVISION
File Number
2016/1121
Re
Branko Govedarica
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Mr Andrew Cameron, Member
Date 22 December 2016
Place Melbourne The Tribunal affirms the decision under review.
[sgd]................................................................
Mr Andrew Cameron, Member
SOCIAL SECURITY - disability support pension – qualification – continuing inability to work – program of support – decision affirmed
Legislation
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 Sch 2 Cl 4
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Social Security (Active Participation for Disability Support Pension) Determination 2014Cases
Re Bobera and Secretary, Department of Families, Housing Community Services and Indigenous Affairs [2012] AATA 922
Gallacher v Secretary, Department of Social Services (2015) 68 AAR 1
Re Karaman and Secretary, Department of Social Services [2016] AATA 597
Re Budisa and Secretary, Department of Social Services [2014] AATA 79
Re Rekic and Secretary, Department of Social Services [2015] AATA 369REASONS FOR DECISION
Mr Andrew Cameron, Member
22 December 2016
INTRODUCTION
Mr Govedarica is currently 59 years of age.
In August 2010, Mr Govedarica was involved in a motor vehicle accident which resulted in injuries to his lumbar spine. Prior to the motor vehicle accident, he worked as a concrete mixer driver.
He has also had an amputation of the second and third fingers on his right hand following a crush injury from a machine in 2002. Mr Govedarica has had five operations some years ago following this accident.
Mr Govedarica has made an application for review of a decision of the Social Services and Child Support Division (SSCSD) of the Tribunal to reject his application for the disability support pension (DSP).
By way of procedural background, on or about:
(a)20 March 2015, Mr Govedarica lodged a claim for DSP with the Department of Social Services (Department);
(b)25 June 2015, the Department rejected the Applicant’s claim for the disability support pension on the basis that he failed to satisfy s 94(1) of the Social Security Act 1991 (Cth) (Act);
(c)14 July 2015, Mr Govedarica requested a review of the original decision by an authorised review officer of the Department (ARO);
(d)10 September 2015, the ARO affirmed the decision;
(e)4 November 2015, Mr Govedarica requested a review of the decision by the ARO;
(f)19 January 2016, the SSCSD affirmed the decision; and
(g)4 March 2016, Mr Govedarica requested a review of the decision of the SSCSD.
ISSUES FOR DETERMINATION
Broadly, this Tribunal must determine whether Mr Govedarica qualified for the DSP as at the date of his claim, being 20 March 2015, or within 13 weeks of that date: clause 4 of Schedule 2 of the Social Security (Administration) Act 1999 (Cth).
Section 94 of the Act sets out the qualification requirements for the DSP. Section 94 of the Act provides, among other things, that:
(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; and
…
(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa)in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support – the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a)in all cases – 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)in all cases – 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 activity 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.
The Tribunal can only consider an applicant’s qualification for DSP within that qualification period: Re Bobera and Secretary, Department of Families, Housing Community Services and Indigenous Affairs [2012] AATA 922 at [31] as affirmed in Gallacher v Secretary, Department of Social Services (2015) 68 AAR 1 at [27] – [28].
As stated in Re Karaman and Secretary, Department of Social Services [2016] AATA 597 at [3], medical reports produced after the relevant date are only relevant to the extent that they are referrable to the person’s condition during the relevant period.
The issues this Tribunal had to consider as at 20 March 2015 or within 13 weeks of that date (19 June 2015) were as follows:
(a)first, whether Mr Govedarica has a physical, intellectual or psychiatric impairment;
(b)secondly, whether the impairments attract a total impairment rating of at least 20 points under the impairment tables. The tables are contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (ImpairmentDetermination) and are made pursuant to s 26(1) of the Act; and
(c)thirdly, whether Mr Govedarica has a continuing inability to work as defined in s 94(2) of the Act.
Section 3 of the Impairment Determination defines “Impairment” to mean a “loss of functional capacity affecting a person’s ability to work that results from the person’s condition” and “condition” as a “medical condition”.
In considering this matter, I have had regard to:
(a)the oral evidence and oral submissions of Mr Govedarica coupled with documents he handed up during the course of the hearing (comprising, a letter of support from clinical psychologist, Ms Stojanka Stefanovic, discharge summary from Northern Health dated 12 June 2016, letter from consultant neurosurgeon, Armin Drnda, dated 31 March 2016 and an email from radiologist, Upeca Wattuhewa dated 28 June 2016);
(b)the T-documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth); and
(c)the Secretary’s statement of issues, facts and contentions and oral submissions by the Secretary’s solicitor, Ms Bramley.
It was not disputed by the Secretary during the hearing that Mr Govedarica has a physical, intellectual or psychiatric impairment and, therefore, satisfied the requirements of s 94(1)(a) of the Act. In fact, the Secretary at paragraph 4.5 of his statement of issues, facts and contentions expressly conceded that Mr Govedarica suffered a physical, intellectual or psychiatric impairment.
Therefore, the matters I have needed to consider relate to whether Mr Govedarica’s impairments attract a total impairment rating of 20 points and, further, whether Mr Govedarica has a continuing inability to work.
For the reasons set out below, I am of the view that:
(a)Mr Govedarica’s impairments attract a rating of 30 points under the impairment tables, albeit not on the one table, in the Impairment Determination; and
(b)Mr Govedarica does not, however, have a “continuing inability to work” within the meaning of the Act.
IMPAIRMENT RATING
Pursuant to s 6(3) of the ImpairmentDetermination, I can only assign an impairment rating if a condition affecting Mr Govedarica which causes impairment is permanent and the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than 2 years.
Pursuant to s 6(4) of the Impairment Determination, a condition is “permanent” if the following is satisfied:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner;
(b)the condition has been fully treated;
(c)the condition has been fully stabilised; and
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
In determining whether a condition has been “fully diagnosed by an appropriately qualified medical practitioner” and whether it has been “fully treated”, the following must be considered under s 6(5) of the Impairment Determination:
(a)whether there is corroborating evidence of the condition;
(b)whether treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
A condition is “fully stabilised” under s 6(6) of the Impairment Determination if:
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i)significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Once it is determined that Mr Govedarica has a permanent impairment and that the permanent impairment is likely to persist for at least 2 years, I can then apply the impairment tables in the ImpairmentDetermination.
Pursuant to s 8 of the Impairment Determination, symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.
Back condition – Lumbar Spine
Since August 2010 when Mr Govedarica injured his spine, he has worn a surgical corset for pain, walked with a stick and taken Panadeine Forte.
A number of medical reports in relation to Mr Govedarica’s back condition were put before the Tribunal, including from orthopaedic specialists, Mr Brian Barrett and Mr Peter Kudelka. Further evidence was put before the Tribunal from general practitioner, Dr Ristevski.
Mr Barrett stated in a letter, dated 3 February 2012, that Mr Govedarica’s:
…lumbar movements were very limited, his forward flexion only being about 25% of normal and extension about 10% of normal, all producing lower back pain into the buttock and thighs at the limits. (emphasis added)
Mr Kudelka in a letter, dated 19 December 2012, stated:
The diagnosis is mechanical aggravation of degenerative change in the lumbar spine. The prognosis is poor, if anything, getting worse not better despite ongoing appropriate palliative treatment…
I think it likely that this patient would be permanently unfit for work involving prolonged standing, sitting, bending, stooping, lifting weights in excess of 5kg and any future alternative employment would have to accommodate these restrictions of function in his lumbar spine. (emphasis added)
A medical report, dated 19 March 2015 from general practitioner, Dr Ristevski, noted chronic lumbar pain, which had become worse following Mr Govedarica’s motor vehicle accident.
The Secretary, at paragraph 4.19 of his statement of issues, facts and contentions conceded that Mr Govedarica’s back condition was fully diagnosed, treated and stabilised. I agree with this submission and am also of the view that this condition would persist for more than 2 years.
The Job Capacity Report, dated 24 June 2015 stated, among other things:
[Mr Govedarica is] currently continuing with swimming two to three times per week, physiotherapy as needed, daily walking, and home based exercises as prescribed by the physiotherapist.
Mr Govedarica reported problems bending, can not (sic) put on shoes, can not (sic) weight bear, persistent lower back pain, reduced walking capacity due to bilateral leg pain…
The Job Capacity Report further stated:
Mr Govedarica…is able to bend forward to pick up a light object place(d) at knee height, able to sit in or drive a car for at least thirty minutes, is able to get up out of a chair unassisted, manages all of his self care and personal grooming independently.
Mr Govedarica…is able to undertake daily walking as part of his exercise regime (albeit at his own pace), is able to use stairs without assistance, is able to stand for more than five minutes, and is able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket.
The evidence before the SSDSC was that:
…he is able to walk for 15 minutes with rest and is unable to climb stairs without a great deal of pain and difficulty. He estimated he was able to stand for up to 10 minutes. He often uses a walking stick for support. He is able to bend, slowly and carefully to knee level but is unable to pick an object off the floor. He is able to do some overhead activities with some difficulty. He said he is able to lift up to three or four kilograms.
In oral evidence before this Tribunal, Mr Govedarica said that he would drive his children to school during the course of the 2015 year. He also said it was better for him to walk than stand. He said that he could walk for 10 - 15 minutes.
The Secretary submitted that 5 points were applicable under table 3 (lower limb function) and 5 points under table 4 (spinal function) of the Impairment Determination. I agree with this submission and am satisfied that Mr Govedarica suffered mild functional impact using his lower limbs and mild functional impact on activities involving spinal function.
Loss of Fingers on Right Hand
Dr Ristevski referred, in a letter dated 13 November 2015, to the loss of Mr Govedarica’s loss of fingers being the 2nd and 3rd fingers on the right hand. He stated:
Amputation of fright (sic) hand 2nd to 3rd fingers due to crush injury in 2002 casuing (sic) loss of right hand function of siognifiacnt (sic) degree of limting (sic) grip and fine hand movements and function (emphasis added)
The Secretary at paragraph 4.22 of his statement of issues, facts and contentions concedes that Mr Govedarica’s right hand condition was fully diagnosed, treated and stabilised. I agree with this submission and am also of the view that this condition will persist for more than 2 years.
The evidence before the SSCSD was that:
He told the Tribunal that he is right handed and has had difficulty because of his injury. He still experiences pain at the tips of his fingers as well as in the digits which are missing. He experiences poor circulation and often has to wear gloves to keep his hand warm. He said he has poor grip and is constantly breaking things. The pain in his hand also radiates up his right arm to his shoulder. He misjudges his grip and often drops things like glasses or cups. He cannot do up buttons or shoe laces and avoids clothes with buttons and wears shows without laces. He cannot use a computer and has taught himself to write but in a very limited way. He is not confident of being able to lift a litre bottle or carton of liquid as his grip on such things is poor.
It was submitted by the Secretary that 5 points for a mild functional impairment were applicable under table 2 (upper limb function) for this condition.
In my view, Dr Ristevski’s evidence that Mr Govedarica suffers significant limitation of grip and fine hand movements, combined with the evidence before the SSCSD referred to above, indicates that Mr Govedarica suffers a moderate functional impact on activities using his hand. On that basis, a rating of 10 points on table 2 of the Impairment Determination is, in my view, appropriate.
Depression
Psychiatrist Dr Wahr advised that Mr Govedarica had problems sleeping and felt depressed. Dr Wahr confirmed on 3 August 2015 that Mr Govedarica was diagnosed with “agitated depression”.
In a letter dated 2 September 2011, Dr Wahr stated:
Mr Govedarica was involved in a motor car accident on 28th August 2010 following which he has been left with physical problems and a significant agitated depressive reaction.
Mr Govedarica has problems sleeping and he feels depressed although he is not suicidal.
Further, Dr Ristevski identified Mr Govedarica as suffering from “anxiety with depression requiring treatment.”
Clinical psychologist, Ms Stefanovic, wrote in a letter dated 17 September 2016 that among other things:
[Mr Govedarica] and his family came here as refugees from the war in Bosnia. During the war, Branko was imprisoned and subjected to physical and mental torture…
Branko is a severely traumatised person. He is also experiencing mood swings, agitation and irritability on a daily basis.
…
His memory, attention and ability to concentrate are affected by his condition. He also is experiencing periods of poor sleep and depression when he is not able to drive or motivate himself to leave the house.(emphasis added)
The Secretary at paragraph 4.24 of his statement of issues, facts and contentions concedes that Mr Govedarica’s depression was fully diagnosed, treated and stabilised. I am also of the view that it would persist for more than 2 years.
The evidence before the SSDSC was that:
He is forgetful and his mood fluctuates a great deal during the day….His relationship with [his children] is fine but he forgets things constantly and this upsets them…He said that at times he does not care what happens to himself and will neglect to wash or dress. He feels constantly under pressure and is stressed. He no longer socialises much and this is different to the way things used to be…He said he is unable to concentrate for long periods and is unable to read for more than about 20 minutes. He has problems with his cognition and often has to go back over things or ask for things to be repeated. He gets lost and disoriented and often loses concentration…
In light of the evidence of Dr Wahr, Dr Ristevski, Ms Stefanovic and the evidence before the SSCSD referred to above, my view is that 10 points are applicable on table 5 (mental health function) of the Impairment Determination.
Other Medical Conditions
There was no evidence before the Tribunal on the functional impact of Mr Goverarica’s other medical conditions - namely, cholecystectomy, residual epigastric discomfort, cholecystitis and hypercholesterolemia. Accordingly, a zero rating should be attributed to these conditions.
Mr Govedarica’s injuries attract an impairment rating of 30 points in aggregate. However, 20 of those points are not comprised under any one table. This finding is critical for the reason referred to below.
CONTINUING INABILITY TO WORK
Section 94(2) of the Act provides, among other things, that a person has a continuing inability to work because of impairment if the Secretary is satisfied that, in a case where the person’s impairment is not a severe impairment within the meaning of subsection 94(3B) of the Act, the person has actively participated in a program of support.
Given I have made the finding above that Mr Govedarica does not have a “severe impairment” (i.e. 20 points under one impairment table), it is necessary for me to consider whether he has actively participated in a program of support.
Section 94(5) of the Act defines a “program of support” as a program that:
(a)is designed to assist persons to prepare for, find or maintain work; and
(b)either:
(i) is funded (wholly or partly) by the Commonwealth; or
(ii) is a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.”
Under s 94(3C) of the Act, a person has “actively participated” in a program of support if they have “satisfied the requirements set out in the relevant legislative instrument made by the Minister for the purposes of this subsection” (i.e. the Social Security (Active Participation for Disability Support Pension) Determination 2014) (POS Determination).
Part 2 of the POS Determination provides, among other things, that a person has actively participated in a program of support if they have complied with the requirements of and participated in a program for at least 18 months in the three years immediately prior to the claim, or if:
(a)the person completed the entire program of support that was less than 18 months duration;
(b)the person’s program of support was terminated prior to the claim because the person was unable solely because of his or her impairment, to improve his or her capacity to prepare for, find or maintain work through continued participation in the program; or
(c)the person was participating in a program of support at the date of claim and they were prevented, solely due to their impairments, from improving their capacity to find, gain or remain in employment through continued participation.
The Tribunal has strictly enforced the POS Determination: Re Budisa and Secretary, Department of Social Services [2014] AATA 79 at [33] and Re Rekic and Secretary, Department of Social Services [2015] AATA 369 at [32] – [33].
On the evidence before the Tribunal, Mr Govedarica has no record of active participation in any program of support prior to 25 September 2015. Indeed, Mr Govedarica confirmed in his oral evidence before the Tribunal that he had not participated in a program of support prior to 25 September 2015. Mr Govedarica made his claim for DSP on 20 March 2015.
On this basis, Mr Govedarica does not satisfy Part 2 of the POS Determination. Accordingly, I find that Mr Govedarica does not satisfy the first limb of a continuing inability to work in s 94(2)(aa) of the Act and the requirements of s 94(1)(c) of the Act.
It is, therefore, unnecessary for me to consider whether the impairment is sufficient to prevent Mr Govedarica from doing any work or training activity independently of a program of support within the next 2 years.
CONCLUSION
By reason of the foregoing paragraphs, the decision under review should be affirmed.
57. I certify that the preceding 56 (fifty-six) paragraphs are a true copy of the reasons for the decision herein of: Mr Andrew Cameron, Member
[sgd]...........................................................
Associate
Dated 22 December 2016
Date of hearing 21 September 2016 Applicant In person Advocate for the Respondent Ms Ailsa Bramley, Solicitor Solicitors for the Respondent Department of Human Services,
Freedom of Information & Litigation Branch
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