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

[2017] AATA 88

Jakovich and Secretary, Department of Social Services (Social services second review) [2017] AATA 88 (31 January 2017)

Division:GENERAL DIVISION

File Number:           2016/0452

Re:Robert Jakovich

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Mr D.J. Morris, Member

Date:31 January 2017

Place:Perth

The Tribunal affirms the decision under review.

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Mr D.J. Morris, Member

CATCHWORDS

SOCIAL SERVICES – Disability Support Pension (DSP) – whether qualified – whether impairments fully diagnosed, fully treated and fully stabilised – 5 impairment points assigned – certain conditions diagnosed but not fully treated or stabilised in relevant period – not qualified for DSP – decision affirmed

LEGISLATION

Social Security Act 1991 – s94

Social Security (Administration) Act 1999 – cl 4 of Schedule 2

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 – Rule 6

REASONS FOR DECISION

Mr D.J. Morris, Member

31 January 2017

BACKGROUND DATES AND EVENTS

1. Mr Robert Jakovich (the Applicant) applied for Disability Support Pension (DSP) on 24 July 2015.

2. On 4 March 2015 he underwent a Job Capacity Assessment (JCA) in connection with his application.

3. The Department of Social Services (the Department) rejected Mr Jakovich’s claim for DSP on 28 August 2015.

4. He sought a review of that decision by an Authorised Review Officer (ARO), an officer in the Department not involved in the original decision. On 28 October 2015 the ARO affirmed the original decision, on the grounds that the Applicant was not medically qualified for DSP.

5. Mr Jakovich applied to the Social Services and Child Support Division (AAT1) of this Tribunal for review of the original decision. That hearing occurred on 7 January 2016 and AAT1 affirmed the original decision.

6. The Applicant then lodged an application for a second-tier review in the General Division.

7. The hearing was held on 21 December 2016. Mr Jakovich was self-represented, gave sworn evidence and was cross-examined by the advocate for the Respondent, Mr Lucas.

8. The Respondent submitted documents under section 37 of the Administrative Appeals Tribunal Act 1975 (T-documents), which were admitted into evidence. The Secretary’s Statement of Facts, Issues and Contentions dated 8 November 2016 with Annexures A to H was also taken into evidence.

9. A letter to the Tribunal from Mr Jakovich dated 2 December 2016 was admitted (Exhibit A1).

   THE LAW

   Qualification for DSP under the Act

10. The law applicable to the grant of DSP is the Social Security Act 1991 (the Act) and in particular section 94 of that Act.

11. In order to qualify for DSP, a person’s claim must be assessed under section 94(1) of the Act and the qualification criteria for DSP must be satisfied. For this reason, it must be established that the person applying has:

    (a)       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;

    …        

12. The Impairment Tables referred to in section 94(1)(b) are to be found in subordinate legislation, namely a ministerial determination called the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Determination). This Determination came into effect on 1 January 2012 and is applicable to assessments of qualification for DSP from that date.

13. The applicable provision relating to the Applicant’s ability to “work” under

    
    

    subsection 94(1)(c) and section 94(5) of the Act is work that is for at least 15 hours a week.

14. So, therefore, for a person to be qualified for DSP, the person must have an impairment within the meaning of the Act. Secondly, the impairment, or impairments if there is more than one, must be assigned a rating of 20 or more points under the Impairment Tables. Thirdly, the person must have a continuing inability to work.

15. An important additional requirement is, if a person is assigned 20 or more points under one Impairment Table, the impairment is assessed to be a ‘severe’ impairment under section 94(3B). If a person is assigned 20 or more points under more than one Impairment Table, then the provisions of section 94(2) of the Act are applicable, which relate to a person participating in an approved program of support.

    What is the relevant period for considering the claim?

16. The Social Security (Administration) Act 1999 (the Administration Act) provides, at clause 4(1) of Schedule 2, as follows:

    If:

    (a)a person (other than a detained person) makes a claim for a relevant social security payment; and

    (b)the person is not, on the day on which the claim is made, qualified for the payment; and

    (c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and

    (d)       the person becomes so qualified within that period;

    the claim is taken to be made on the first day on which the person is qualified for the social security payment.

    MATTER TO DECIDE

17. Was Mr Jakovich eligible for DSP on 24 July 2015? If he was not qualified on that date, applying the provisions of clause 4(1) of Schedule 2 of the Administration Act, did Mr Jakovich become eligible on a date in the thirteen week period after the day of lodging the claim, which ended on 24 October 2015?

    APPLYING THE LAW

    Does the Applicant have a physical, intellectual or psychiatric impairment?

18. Dr Leonard Chan, general practitioner, filled out a medical report relating to the Applicant dated 16 February 2015.[1] In that report, Dr Chan identified Mr Jakovich as suffering from the following medical conditions: “Anxiety/depression … Degenerative disc changes and facet arthropathy at multiple levels of the cervical neck and degenerative changes – right hip.”[2]These two conditions had the most impact on the Applicant, in Dr Chan’s assessment. Dr Chan also noted that Mr Jakovich had a crush injury in 1976 which resulted in significant damage to his right hand.  The Tribunal also had before it a report from an audiologist dated 20 November 2015 (outside the relevant period) relating to the Applicant’s reporting of tinnitus.

    [1] T11.

    [2] ibid pp 69, 72.

19. The Respondent accepted the medical evidence of these conditions in his submissions to the Tribunal as satisfying section 94(1)(a) of the Act.

20. On the basis of the medical evidence before the Tribunal, I find that Mr Jakovich had impairment in the relevant period – a mental health condition; a spinal condition; damage to his right hand and left elbow. Therefore he satisfied the requirements of section 94(1)(a) of the Act.

    If so, what is the correct rating under the Impairment Tables?

21. When considering how the Impairment Tables apply in a particular person’s case, the Tribunal must do so with reference to the Rules for applying the Impairment Tables set out in Part 2 of the Determination.

22. In particular, Rule 6(3) provides that an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent and the impairment that results from that condition is more likely than not, in the light of available evidence, to persist for more than 2 years.

23. In considering whether a condition is “permanent”, Rule 6(4) requires that a condition must be fully diagnosed by an appropriately qualified medical practitioner (and the criteria are different for some assessments), the condition must be fully treated and fully stabilised, and the condition is more likely than not, in light of available evidence, to persist for more than 2 years.

    Mental health condition

24. Dr Chan’s medical report stated that his diagnosis of Mr Jakovich’s anxiety and depression was ‘presumptive’ and was not confirmed by further specialist opinion.  He recorded the range of prescribed medication the Applicant was taking and said future planned treatment was that Mr Jakovich sees a psychiatrist.  He said that the effects on the Applicant of this condition were lack of sleep, tiredness, anxiety and light-headedness.

25. Mental health conditions are assessed under the Impairment Tables by consideration under Table 5. The introduction to Table 5 requires that a condition must have a corroborative diagnosis by either a psychiatrist or a clinical psychologist. The Tribunal had before it a medical letter to Dr Chan from Dr Lucius Arco, clinical psychologist at Mirrabooka Adult Mental Health Service, dated 10 July 2015.[3]

    [3] T13.

26. Dr Arco says that he saw Mr Jakovich for a mental health assessment on 12 May 2015.  Dr Arco described the Applicant’s symptoms as “indicative of anxiety and depression in context of a history of depression”.[4] Even though Dr Arco’s diagnosis is proximate to the date of the DSP application, it would seem to me that this constitutes a corroborative diagnosis within the terms of the Determination. However, for a condition to be classified as ‘permanent’ under the Determination, the Rules require that it also be fully treated and fully stabilised. Mr Jakovich undertook a short psychotherapeutic course recommended by Dr Arco, who reported that he responded well. Dr Arco said that Mr Jakovich agreed with his recommendation to maintain psychological counselling via a Medicare mental health care plan. Mr Jakovich told the JCA on 24 October 2015 that this treatment had yet to commence and he gave evidence to this hearing that he found the resurrection of old memories quite traumatic. Dr Chan in his handwritten report dated 26 October 2016 said that Mr Jakovich was [now] seeing a psychiatrist in a private clinic for ongoing treatment for his depression.

    [4] Ibid p 83.

27. I am sympathetic to Mr Jakovich whose evidence about profound grief reactions affecting his state of mind was plausible. It would seem to me that there are prospects for functional improvement on the basis that Mr Jakovich is still undergoing treatment and that Dr Arco found him co-operative and medically responsive to such treatment. I am therefore unable to find that this condition was fully treated and fully stabilised in the relevant period and therefore, under Rule 6(3) of the Determination, I am unable to assign impairment points for it.

    Spinal condition

28. The Tribunal had before it a medical letter to Dr Chan dated 6 October 2014 from Dr Ashish Chawla, radiologist.[5]  Dr Chawla advises that x-ray of the cervical spine shows:

    Moderately severe degenerative changes … at the cervical spine with anterior osteophyte formation and reduced intervertebral disc heights, predominantly from C4/5 to C6/7 levels.  Degenerative changes are also present at the uncovertebral joints and articular pillars.  There is osteophyte encroachment of bilateral C3/4 to C6/7 levels, right side worse than the left side.[6]

    [5] T9.

    [6] Ibid, p 63.

29. In another radiological report of 25 November 2014[7], Dr Chawla also records “moderate degenerative changes are noted at the right hip.”

    [7] T10, p 64.

30. Dr Chan referred Mr Jakovich to an orthopaedic surgeon on 15 July 2015[8] but Mr Jakovich told AAT1 that in January 2016 he was awaiting an appointment.  Understandably, this is very frustrating for him.  The Tribunal was subsequently provided with a letter from Mr Paul Khoo, orthopaedic surgeon at Sir Charles Gairdner Hospital. He records that he saw Mr Jakovich on 19 May 2016 and discussed treatment options with him, operative and non-operative. Although this consultation is outside the relevant period, it informs the Tribunal. It is clear, in relation to the spinal condition, that while this condition may be regarded as fully diagnosed, it cannot be regarded as being fully treated and fully stabilised in the relevant period. 

    [8] T14, pp 85-86.

    Upper limb condition

31. Mr Jakovich suffered a crush injury in 1976 which severely fractured his hand. He gave evidence to the Tribunal, orally and in writing, about the loss of dexterity and how the pain has increased over time.  I note that he gave similar evidence to AAT1. 

32. Dr Chan records a work-related injury to Mr Jakovich’s left elbow which led to an intensive graft and surgery by an orthopaedic surgeon (named by Mr Angus Keogh in a separate report dated 19 May 2015 as Mr Jeff Ecker) in 2003.[9]  Mr Jakovich gave evidence that this causes him discomfort, although Mr Keogh reports “excellent range of movement” on medical examination.

    [9] Respondent’s Statement of Facts, Issues and Contentions, Annexure F.

33. I conclude that his right hand injury may be classified as causing a permanent impairment.  It has been a permanent feature of his life for forty years and he has learned strategies to deal with it, which is to his credit. He cannot carry anything of weight with his right hand.  He cannot undo buttons with his right hand. The fact that he has had to adapt does not remove the fact that he lives with a permanent impairment. I note that he has been seeing a physician, Dr Tarfere Berhane, at Hollywood Medical Centre in terms of strategies to deal with the pain he suffers and he advises the Tribunal that he plans to see an orthopaedic surgeon in the future to see if there can be improvement but my assessment is that, given the historical nature of the injury, any such treatment will be essentially palliative in nature, at least in terms of the right hand injury. I am persuaded that he should be assigned impairment points under Table 4 – Upper Limb Function and that on the evidence I find that he meets the requirements in the Descriptors for the assignment of 5 impairment points.  

    Hearing condition

34. For completeness, even though the hearing report was dated after the relevant period, if it is considered to be referrable to a condition existing within the relevant period, I considered the material relating to Mr Jakovich’s hearing loss. 

35. Mr Amit Sahni, audiologist of Expert Hearing Care in Morley, tested Mr Jakovich’s hearing on 20 November 2015.[10] He reported that the audiogram shows “mild to moderately severe sensorineural hearing loss in the right ear and mainly normal hearing in the left ear (except at 8 Khz)”. Mr Sahni recommended a hearing aid for the right ear but said that Mr Jakovich had deferred a decision on a hearing aid at that time.

    [10] T2, p 10.

36. Even if I were to consider this report as referrable to an impairment within the period relevant to this DSP claim, applying the Determination, in terms of impairment points, given that Mr Jakovich is still considering appropriate treatment, I am unable to assign impairment points for his hearing condition.

    CONCLUSION

37. I find that Mr Jakovich should be allocated a total of 5 impairment points under the Impairment Tables in the relevant period. Section 94(1)(b) requires that for a person to be qualified for DSP he or she must be assigned 20 or more impairment points. If not, the application cannot succeed.

38. Section 94(1) is a conjunctive subsection of the Act. That means that each part of it must be satisfied for a person to be qualified for DSP. Because Mr Jakovich does not satisfy section 94(1)(b), it is not necessary for me to go on to consider whether he meets the continuing inability to work and program of support requirements.

39. As Mr Jakovich did not satisfy each part of the subsection in the relevant period, the original decision was correct and the regrettable outcome is that he was not qualified for DSP in the relevant period. 

    DECISION

40. The Tribunal affirms the decision under review.

I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Mr D.J. Morris, Member

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Administrative Assistant

Dated: 31 January 2017

Date of hearing:	21 December 2016
Applicant:	In person
Representative for the  Respondent:	Mr D Lucas
Solicitors for the Respondent:	Mills Oakley Lawyers