Hasic and Secretary, Department of Social Services (Social services second review)
[2016] AATA 1006
•9 December 2016
Hasic and Secretary, Department of Social Services (Social services second review) [2016] AATA 1006 (9 December 2016)
Division
GENERAL DIVISION
File Number
2015/0754
Re
Ekrem Hasic
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Professor M McGrowdie, Senior Member
Date 9 December 2016 Place Sydney The reviewable decision dated 28 January 2015 is set aside and in substitution, the Tribunal decides that as at the date of cancellation on 5 November 2014, the applicant satisfies section 94 of the Social Security Act 1991 and is qualified to receive the Disability Support Pension.
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Professor M McGrowdie, Senior Member
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – cancellation of payment – Mental Health Function – Spinal Function – whether conditions fully diagnosed, treated and stabilised – whether conditions rated 20 points or more under Impairment Tables - continuing inability to work – decision under review set aside and substituted
LEGISLATION
Social Security Act 1991 ss 94(1), 94(2)
Social Security (Administration) Act 1999 s 80(1)
Social Security (Tables for the Assessment of work-related Impairment for Disability Support Pension) Determination 2011.
REASONS FOR DECISION
Professor M McGrowdie, Senior Member
9 December 2016
GENERAL BACKGROUND
The applicant, Ekrem Hasic, 56 years old, seeks review of the decision made by the Social Security Appeals Tribunal (SSAT) on 28 January 2015 affirming the decision of the Authorised Review Officer (ARO) to cancel his disability support pension (DSP) as at 5 November 2014 as he did not satisfy the criteria set out in section 94 of the Social Security Act 1991 (Act).
RELEVANT LEGISLATION AND ISSUES
The issue for determination by this Tribunal is whether the applicant qualified to receive the DSP as at the date of the cancellation on 5 November 2014.
Relevantly, section 94(1) provides 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…
It follows that the determinative issues for consideration in this application are whether, as at the date of cancellation, the Applicant had:
(a)A physical, intellectual or psychiatric impairment;
(b)an impairment rating of 20 points or more under the Impairment Tables; and
(c)a continuing inability to work as defined in section 94(2) of the Act.
The Tables have numerous ‘descriptors’ such as ‘Spinal Function’ and ‘Mental Health Function’ and in respect of each relevant ‘descriptor’, points are assigned depending upon the level of loss of function of a permanent kind. Either 0, 5, 10, 20 or 30 points can be given for the relevant ‘descriptor’.
Points achieved for each relevant ‘descriptor’ can be combined to meet the required 20 points required by section 94(1)(b).
The ‘descriptors’ relevant to this review are ‘Spinal Function’ and ‘Mental Health Function’. In respect of ‘Spinal Function’, the applicant’s cervical and lumbar spinal conditions are to be considered.
These are the relevant ‘descriptors’ for conditions which were considered to be permanent in that they are conditions which can be regarded as fully diagnosed, fully treated and stabilised. Mr Hasic does suffer from other medical conditions but they were not conditions which were, as at 5 November 2014, capable of being assessed as permanent or which had a 0 point rating. Mr Hasic was assessed as having 0 points for the shoulder and right knee and was not seriously in contention.
The SSAT affirmed the decision to cancel Mr Hasic’s DSP after determining that Mr Hasic had a 15 point impairment rating under the Tables, comprising:
(a)Five points for ‘Spinal Function’ in relation to the conditions relating to his cervical and lumbar spine under Table 4; and
(b)Ten points for ‘Mental Health Function’ for adjustment disorder with depressed mood and anxiety under Table 5.
SPINAL FUNCTION
The only recorded employment performed by Mr Hasic is his past work in the building and construction industry.
The applicant first came to Australia in late 1998. In early December 1999 he fell while working as a steel fixer and injured his cervical and lumbar spines.
He was granted the DSP in 2002 prior to its cancellation in 2003 due to a compensation preclusion period. Mr Hasic was able to subsequently return to work after quite a number of years and suffered an injury in another fall on a construction site in April 2008.
Mr Hasic, nonetheless, was able to return to work with another employer following the injury of April 2008. He then suffered a third injury, in August 2011, when he fell again.
Subject to various periods of suspension during workers compensation preclusion periods the Applicant received the DSP until it was cancelled on 5 November 2014.
As a result of his various work injuries, the heavy nature of the work and underlying degenerative changes, the applicant has continued to suffer ongoing problems with his cervical and lumbar spines, his shoulders and right knee.
There have been numerous medical reports prepared over the years.
With regard to the applicant’s spine, the problem with the lumbar spine appears to be worse than the cervical spine. Radiology has shown there to be some disc prolapse at L4/5 and L5/S1.
A number of doctors have assessed permanent impairments of the spine under a different rating system to that currently being considered.
The applicant is recorded to have gross restriction with regard to his spine with some degree of exaggeration on the applicant’s part.
The medical evidence and the applicant’s evidence, support that he is restricted in lifting and bending, prolonged standing and sitting. The applicant is generally restricted in relation to his spine. For instance, he is unable to put clothes on the washing line or to take them off the line. He does very little shopping, little driving and the like. The applicant has difficulty with his mobility getting in and out of a chair.
Whilst the applicant may present as having been impaired in a serious way, I regard the applicant as having a moderate functional impact from his spinal condition attracting 10 points under Table 4.
The applicant did have the assistance of his son who was regarded as a ‘carer’. However, his son has moved away from Sydney. Mr Hasic has a house-mate who does the majority of the cleaning, shopping, laundry and cooking. They live in a home unit which is on the ground floor but which has 5 or 6 steps to get to that level.
MENTAL HEALTH FUNCTION
With regard to his ‘Mental Health Function’, the applicant was referred in 2000 to Dr Sokolovic, psychiatrist, by the applicant’s then general practitioner for treatment with regard to anxiety and depression.
More recently, in a short report dated 26 November 2014, the applicant’s current general practitioner, Dr Todorovic refers to the applicant as having an adjustment disorder with depressed mood.
In a report from Dr Nikola Tomic, Clinical Psychologist, dated 12 January 2015, it is recorded that the applicant had been referred to him by Dr Todorovic for three consecutive years. When reviewed on 8 January 2015, Dr Tomic assessed the applicant as continuing to suffer from chronic depression and anxiety.
Dr Tomic expressed the view that Mr Hasic was unable to accept responsibility for any kind of formal employment, including voluntary work.
In a more recent report dated 30 May 2016, Dr Tomic confirms that Mr Hasic has been a patient of his since April 2012. Dr Tomic reviewed the applicant in March 2016. The diagnosis provided by Dr Tomic is that of an ‘Adjustment Disorder with Mixed Anxiety and Depressed Mood, Chronic’. The applicant continues to see Dr Tomic for treatment.
It would appear to me that Mr Hasic’s perception of his physical problems is heightened by his psychological condition.
I believe that the depression which manifested itself earlier and which is referred to in the psychiatric report of Dr Sokolovic in 2002 demonstrated the vulnerability of the applicant’s mental state. When the applicant suffered further injury and restrictions on capacity this precipitated the applicant’s more recent presentation to Dr Tomic evidencing a condition which affects, and is likely to continue to affect, the applicant and his ability to function.
The applicant gave evidence as to how he relies on his flatmate. Although the applicant is married, he and his wife do not apparently live together. His relationship with his son who formerly was his carer is strained.
Socialisation is minimal although he does have some friends visit from time to time.
At the hearing, the applicant appeared a little dishevelled. He says he bathes every few days. In my view, his abilities in regard to normal functioning are compromised.
He was, however, able to travel to his native Bosnia in 2015 to visit his aged mother. His father died last year. He was away for a little over a month.
The applicant’s English language skills were not that good and he was assisted by an interpreter. He frequently appeared to be agitated and appeared to have difficulty focussing.
I am well satisfied that the applicant’s Mental Health Function is in the moderate category and attracts 10 points under Table 5.
Given what I have concluded with regard to ‘Spinal Function’ and ‘Mental Health Function’, the applicant satisfies the requirement in section 94 for an impairment of 20 points.
CONTINUING INABILITY TO WORK
Another requirement to qualify for DSP under section 94 of the Act is that the person must have a continuing inability to work.
Added to the applicant’s physical disabilities are the problems associated with his mental health function. I accept the view expressed by Dr Tomic that the applicant is at a point where he is mentally unable to accept responsibility for any kind of formal employment, including voluntary work and this is contributed to by his physical problems with his spine.
I consider that this has been the case since at least as early as April 2012 when the applicant was first referred to Dr Tomic. This followed the applicant’s most recent work injury in August 2011.
Prior to that injury and some many years after the injury in 1999, the applicant was able to return to work on a building site despite his seeming incapacity which followed the 1999 injury. The applicant again suffered injury at work in April 2008 and was able to return to work.
In considering qualification for the disability support pension, it is also necessary to consider the expanded meaning given to the phrase ‘continuing inability to work’ in section 94(2). Subsection 94(2)(aa), requiring a person who does not have a ‘severe impairment’ to have actively participated in ‘a program of support’, does not apply as it is accepted that the Applicant is a person who comes within the exemption provided in section 94(3A). Consequently, the Applicant is not required to have completed a program of support.
However, the Applicant must satisfy the requirements paragraphs (a) and (b) of section 94(2). The Applicant’s impairment, and here it is more relevantly the mental health function:
(a)must 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)must of itself be 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.
I am of the opinion that the Applicant, who I accept is unable to undertake work including voluntary work, has an impairment which currently and will over the next two years, prevent him from undertaking ‘a training activity’.
DECISION
Accordingly, the SSAT’s decision affirming the decision to cancel the applicant’s DSP as at 5 November 2014 is set aside.
In place thereof, the Tribunal decides that the applicant satisfies section 94 of the Act and is entitled to the DSP as at the date of cancellation on 5 November 2014.
I certify that the preceding 45 (forty -five) paragraphs are a true copy of the reasons for the decision herein of Professor M McGrowdie, Senior Member
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Associate
Dated 9 December 2016
Date(s) of hearing 14 June 2016 Applicant In person Solicitors for the Respondent Department of Human Services
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