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

[2018] AATA 3684

Kosturski and Secretary, Department of Social Services (Social services second review) [2018] AATA 3684 (3 October 2018)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL               )
  )         No: 2017/0103
GENERAL DIVISION  )

Re: Branko Kosturski
Applicant

And: Secretary, Department of Social Services
Respondent

CORRIGENDUM TO DECISION

TRIBUNAL:    Dr Damien Cremean, Senior Member

DATE of CORRIGENDUM:             11 October 2018

PLACE:          Melbourne

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:

1.Replace paragraph 8 of the Reasons for Decision with the following:

The Respondent called Dr Christopher Minogue, specialist occupational physician, to give evidence.

[sgd]...................................................................
Senior Member

Division:GENERAL DIVISION

File Number(s):       2017/0103

Re:Branko Kosturski   

APPLICANT

Secretary, Department of Social ServicesAnd  

RESPONDENT

DECISION

Tribunal: Dr Damien Cremean, Senior Member

Date:3 October 2018

Place:Melbourne

The Tribunal sets aside the decision under review and remits the matter to the Respondent for reconsideration in accordance with the Reasons for Decision.

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

Dr Damien  Cremean, Senior Member

Catchwords

SOCIAL SECURITY – Disability support pension—whether statutory requirements under section 94 of the Social Security Act 1991 satisfied—Impairment Tables— fully diagnosed, treated and stablished — severe impairment under Table 4- spinal function — cervical spondylosis and L5 disc protrusion — decision set aside and remitted

Legislation

Social Security Act 1991 s 94
Social Security (Tables for the Assessment of work-related Impairment for Disability support Pension) Determination 2011 (Cth)

Cases

RePerich and Secretary Department of Social Services [2018] AATA 963

REASONS FOR DECISION

Dr Damien Cremean, Senior Member

3 October 2018

Background

1. Mr Branko Kosturski (the Applicant) applies to review a decision of the Social Services & Child Support Division of this Tribunal made on 2 December 2016 to affirm a decision made by an authorised review officer of the Department of Human Services made on 28 June 2016, to reject his claim for disability support pension (DSP) lodged on 23 February 2016.

2. The decision under review was made on the ground that the Applicant did not satisfy the medical qualifications under s 94 of the Social Security Act 1991 (Cth)(Act)

3. Section 94 of the Act provides:

   Qualification for disability support pension

   (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 participating in the program administered by the Commonwealth known as the supported wage system

   Issues

4. The issue on the review is whether the Applicant was qualified to receive DSP at the time when his claim was lodged or within 13 weeks thereafter. There are in consequence three components to consider:

   i.Whether the Applicant had a physical, intellectual or psychiatric impairment as defined by the Act;

   ii.Whether the Applicant had an impairment rating of at least 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011(Impairment Tables); and

   iii.Whether the Applicant had a continuing inability to work.

   Hearing

5. The hearing in this matter commenced on 31 January 2018 and resumed on 17 July 2018.

6. The Applicant was represented by Mr T Noonan, lawyer, of Legal Aid Victoria and the Respondent was represented by Mr T Noonan, lawyer, of the Department of Human Services.

7. Sworn evidence was given by the Applicant at the hearing assisted by interpreter and affirmed evidence was given by Dr Vaso Dzartov, medical practitioner

8. The Respondent called no witnesses

9. The Respondent lodged a bundle of documents under s 37 of the Act (the T documents). The T documents were received into evidence as were various medical reports and a bundle of documents supplied by the Applicant.

10. The parties filed short written submissions after the hearing and I received also a late submission filed by the Respondent and an Answer by the Applicant. I should not wish to be seen to be encouraging submissions after a hearing unless I had previously granted leave to the parties to do so.

    First issue: impairment

11. The Applicant was born in Macedonia on 24 January 1956.

12. He became an Australian citizen but went back to Macedonia in 1992 and remained there for 20 years returning to Australia on 5 December 2012. He has since then returned several times to Macedonia.

13. The Applicant has worked as a commercial pilot for about 30 years and has also worked in a thermal electricity power plant. He completed the equivalent of Year 12 in Macedonia.

14. Mr Kosturski is a married man and he and his wife, who also was born in Macedonia, live together in Footscray in Victoria. They have two adult children who live in Macedonia.

15. The Applicant suffers a  number of medical conditions and the Respondent accepts that these include:

    ·cervical spondylosis;

    ·L5 disc protrusion;

    ·urothelial carcinoma and enlarged prostate;

    ·gastritis;

    ·irritable bowel syndrome;

    ·chronic obstructive pulmonary disease;

    ·left shoulder disorder; and

    ·depression.

16. As the materials indicate, these concessions are properly made and accordingly I find that the Applicant satisfies s 94(1)(a) of the Act.

    Second issue: Impairment Tables

17. The next issue is the impairment rating the Applicant should be given for his various conditions under the Impairment Tables.

18. As regards each of his conditions the Respondent contends that the following ratings apply to the Applicant:

    ·cervical spondylosis (10 points under Table 4 of the Impairment Tables);

    ·L5 disc protrusion (nil rating: not fully treated and stabilised);

    ·urothelial carcinoma and enlarged prostate (5 points under Table 13);

    ·gastritis (nil rating: not fully treated and stabilised);

    ·irritable bowel syndrome (nil rating: not fully treated and stabilised);

    ·chronic obstructive pulmonary disease (5 points under Table 1);

    ·left shoulder disorder (nil rating: not fully treated and stabilised); and

    ·depression (nil rating: not fully treated and stabilised)

19. On the basis of these points, if the Respondent is correct, the Applicant satisfies also s 94(1)(b) of the Act in that he has a total of 20 points under the Impairment Tables.

20. If that is so, the question which then arises is whether the Applicant satisfies finally s 94(1)(c) of the Act. But that question does not arise if he satisfies the requirement of 20 points on the basis of one Table only.

21. In my view, the matter was narrowed down in the hearing to the question of whether the Applicant satisfies a 20 point rating under Table 4 of the Impairment Tables. I consider it appropriate therefore to deal with the Applicant’s spinal condition under that Table under which for cervical spondylosis he has already been conceded to be entitled to 10 points. Therefore, the question is whether the Applicant’s L5 disc protrusion falls under Table 4 in addition to the cervical spondylosis.

Is the Applicant fully diagnosed, treated and stabilised as per section 94(1)(a)?

1. The Respondent contends that the Applicant’s condition of L5 disc protrusion was not fully diagnosed, treated and stabilised during the relevant period, in accordance with section 94(1)(a) of the Act. However, the Applicant contends that, on the contrary, during that period that condition was fully diagnosed treated and stabilised.

2. Even should the Applicant’s argument on this point be accepted, the Respondent nonetheless contends that the Applicant is not entitled to any greater than the 10 points for cervical spondylosis already conceded.

3. On this question I have also taken particular note of the various medical reports on file and the evidence of Dr Dzartov. I have, however, also given due weight to the opinions of Dr Minogue.

4. I am satisfied to the required degree on the basis of all the medical evidence that the Applicant’s L5 disc protrusion was fully diagnosed, treated and stabilised during the relevant period.

5. The Respondent contends otherwise based on the notion of suggested surgery and a change in medication.

6. I reject the argument that the change in medication at a time approximately 3 months after the relevant period should have any impact on the question of whether the Applicant’s condition was fully diagnosed treated and stabilised during the relevant period.

7. Moreover, I cannot see how it can be contended, based on the opinion of Dr Minogue, that a contemplated change in medication during that period could reasonably affect that question. Merely contemplating a change in medication during that period is not enough in my view to mean a condition is not fully diagnosed treated and stabilised. This is to read the Impairment Tables too strictly. If merely contemplating a change in medication could disqualify an applicant, then even thinking only passingly about a change in medication, contemplating it even briefly, on some near or distant future date would also be enough to disqualify an applicant and I cannot see that this is what Parliament intended in the Act.

8. I agree with the submissions of the Applicant that his L5 condition otherwise during the relevant period was considered as fully diagnosed, treated and stabilised.

9. My view is not altered by the circumstance that the Applicant declined a lumbar microdiscectomy.

10. This has reference to sections 6(6) and 6(7) of the Impairment Tables and the question of reasonable treatment:

    Fully stabilised

    (6) For the purposes of paragraph 6(4)(c) and subsection 11(4) a

    condition is fully stabilised 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.

    Note: For reasonable treatment see subsection 6(7).

    Reasonable treatment

    (7) For the purposes of subsection 6(6), reasonable treatment is

    treatment that:

    (a) is available at a location reasonably accessible to the

    person; and

    (b) is at a reasonable cost; and

    (c) can reliably be expected to result in a substantial

    improvement in functional capacity; and

    (d) is regularly undertaken or performed; and

    (e) has a high success rate; and

    (f) carries a low risk to the person.

11. It is not in issue that the suggested lumbar microdiscectomy satisfies section 6(7), except as regards paragraphs (c) and (f).

12. As regards paragraph (c) of section 6(7), a proposed treatment must reliably be expected to result in substantial improvement in functionality. I am not satisfied on the evidence that the proposed treatment would result in substantial improvement.

13. Dr Minogue indicated that the kind of operation in question would be expected to improve mainly lower and upper limb function without much benefit for neck or lower back pain. I note his use of the phrase, would be expected, and that he omits to use the word reliably (as in the formulation can reliably be expected). Expecting something and reliably being able to expect something are two different things. Later on, explaining his views further, he stated that improvement in spinal function may well also result due to increased general mobility. I note his use of the phrase, may well also result, and that he omits to say that improvement can be expected to be substantial as in the formulation. Improvement and substantial improvement also are two different things.

14. Therefore, I am not satisfied  I can reasonably rely on Dr Minogue’s guarded views to make a finding that the proposed operation on the Applicant can be reliably expected to result in substantial improvement in his condition.

15. Dr Dzartov in evidence said improvement in function would be substantial but in my view he was not using that word in a generally understood sense. I say this because he then went on to say that after surgery function would improve a little bit. I do not regard an improvement of a little bit as a substantial improvement.  They do not equate to one another. His use of the word substantial is thus ambiguous.

16. I am not satisfied therefore that I can reasonably rely on Dr Dzartov’s opinion either to make a finding that the proposed operation can be reliably expected to result in a substantial improvement in the Applicant’s condition.

17. As regards paragraph (f) of section 6(7), it must be apparent that proposed treatment carries a low risk to the person. The Applicant suffers various health conditions. None of his conditions is of little or no concern. In his evidence, Dr Minogue stated that all operations, however minor, carry some risk. This is common knowledge. Dr Dzartov testified that the chance of a negative outcome of the proposed surgery in the Applicant’s case would be 50/50, with respect to permanent complications. This is most concerning, if so.  But I note that Dr Minogue said that the risk of complications in the Applicant’s case was low, with a low probability of damage to nerve roots.

18. In light of Dr Dzartov’s view I do not consider I can reasonably rely on the opinion of Dr Minogue to find that the risk of surgery in the Applicant’s case is or was only low. I have no reason to prefer Dr Minogue’s view over that of Dr Dzartov. But I do consider I may reasonably prefer Dr Dzartov’s opinion over that of Dr Minogue. Dr Dzartov was the Applicant’s treating doctor at the relevant time.  The treating doctor knows his patient. Surgery always carries some risk as Dr Minogue says and surgery in the Applicant’s case would be on someone in a poor state of health and of advanced years. The views expressed in Re Perich and Secretary Department of Social Services [2018] AATA 963 at [44]-[48] to which I was referred by the Respondent, which also relate to a Dr Minogue, do not alter my position. The advantage of hearing someone in person cannot be overstated and that is fully recognised by appeal courts.

19. I am unable in all the circumstances to reasonably find that the proposed surgery is or was such as to carry only a low risk to the Applicant. It clearly is of some risk if I follow Dr Minogue’s opinion and is troublingly much more than that if I follow Dr Dzartov’s opinion.

20. I am satisfied therefore that the Applicant’s L5 condition during the relevant period was permanent within section 6 (3)(a) of the Impairment Tables in that it was fully diagnosed treated and stabilised and, given its nature, and based on all the evidence, was likely to persist for more than 2 years within section 6(4). I reject the argument advanced by the Respondent. I consider that I am unable to find that either paragraph (c) or (f) or both such paragraphs of section 6(7) of the Impairment Tables is or are satisfied.

Points rating

1. In applying the Impairment Tables to determine the appropriate points to allocate to a particular condition, I consider it important to bear in mind the various purposes of the Act. They affect how the Tables should be read. They should not be subject to a minute and pedantic construction, as in this matter. Such an unreasonably narrow construction may result in persons legitimately entitled to benefits not being able to satisfy the criteria under any given Table. That is not what Parliament intended. Descriptors describe situations or circumstances and are indicative of the degree of functional impact.

2. The Respondent submits that even if the Applicant’s L5 disc protrusion is or was fully diagnosed, treated and stabilised he would still only be entitled to 10 points under Table 4 of the Impairment Tables. The Applicant, however, contends that he is entitled to 20 points on the ground of severe functional impact

   Application of descriptors in Table 4: severe impact

3. The descriptors in Table 4 for severe functional impact are alternatives and are not cumulative. It is sufficient if the Applicant satisfies one of the descriptors on the balance of probabilities:

   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.

4. The first descriptor states that the person is unable to perform any overhead activities. The Applicant argues he is or was unable to perform any such activities during the relevant period. I am not satisfied I should accept this argument. The evidence of Dr Dzartov does not corroborate a view that any inability on the Applicant’s part to perform overhead activities is due to L5 disc protrusion. Rather, in his view it is due to the Applicant’s cervical spondylosis causing left shoulder pain and pain in the left arm. Irrespective of this, I am not satisfied that the Applicant is unable to perform any overhead activities. His evidence was that he could perform some activities but in the case of others only in pain. But he admitted he could use his right arm to reach up for items. This means that descriptor (a) is not satisfied.

5. The second descriptor states that the person is unable to turn their head or bend their back without moving their trunk. The Respondent concedes that this descriptor is satisfied but there is no evidence to satisfy [the] descriptor for 20 points. I find this to be a confusing concession and I am unclear about quite what it means. The Applicant in evidence was asked by the Respondent:

   So you are saying, Mr Kosturski, that you cannot turn your head or bend your neck without moving your trunk? You’re saying that your whole body has to move when you’re turning? Can you turn your head without moving the lower part of your body?

6. In answer, and clearly with reference to the relevant period, the Applicant responded:

   Yes. Yes, like this. If I’m going left, if I am going right this maximum position to the right. I cannot move the head to look over the shoulder there.

7. The Applicant gave evidence that in early 2016 he had no capacity to turn his head without moving his trunk. Again, he stated in evidence when asked that in the relevant period that he had to turn [his] whole body if he wanted to look to the right.

8. In my view, this puts the Applicant squarely within the second descriptor. That descriptor is expressed in the alternative and Mr Kosturski in my view satisfies the first part: unable to turn their head….without moving their trunk. In hearing evidence from the Applicant in relation to this point I am satisfied he was telling me the truth. In my view, his evidence was not controverted in any way. On the balance of probabilities, I accept what he says as the truth.

9. In such circumstances, I am unable to make rational sense of Dr Dzartov’s reply to the question, How would you describe his range of movement in his neck? Dr Dzartov’s answer was that the Applicant had full range of the movement in the neck but the area painful. I am unclear about what particular movement he is talking about when he refers to the movement but I note he says the area painful. I am unclear about the area he is talking about as being painful, except that it has reference to the neck. This was not explained sufficiently for me.

1. I conclude that I am not assisted by Dr Dzartov’s evidence on this point for lack of clarity or proper explanation except so far as it corroborates Mr Kosturski’s evidence of a condition in his neck which is painful and for which in due course Dr Dzartov referred him to a specialist.

2. I find it difficult to explain also Dr Dzartov’s answer to the question:

   Doctor, with regard to both Mr Kosturski’s neck and back condition back in early 2016, would he have had difficulty moving his head to look in all directions?

   Dr Dzartov responded:

   I mean the movement of the neck was pretty normal. He had a bit of severe pain when he was looking upwards and, like, when he doing things like looking in the sky or things like that, that was more painful at that time.

3. In the first place, I find the question to be confusing but secondly so is the answer to the extent to which it is intelligible.  And I am unclear about what a pretty normal movement of the neck is, specifically, whether it is considered to be pretty normal for anyone or for the Applicant in the relevant period or at some other time or for someone else?  I am unable to say what Dr Dzartov meant when he referred to things like that. The various vaguenesses were not eliminated for me

4. I conclude again that I am not assisted by this aspect of Dr Dzartov’s evidence for lack of clarity or proper explanation except so far as it indicates that at some point with some movement or movements, perhaps when looking upwards, or when doing something else or similar, the Applicant suffers pain and even severe pain

5. After careful consideration, my view of the Applicant’s evidence is not altered by these answers of Dr Dzartov.

6. As to the other part of the second descriptor I am not satisfied on the evidence that I can make a finding that Mr Kosturski was unable to bend down without moving his trunk. I find he was able to bend down without moving his trunk, albeit with some difficulty.

7. The third descriptor states that the person is unable to bend forward to pick up a light object from a desk or table. On the evidence, I am not satisfied I am able to make a finding that the Applicant satisfies this descriptor. In his evidence he indicated that he is able to bend forward, even though not very far because of pain. But the fact is he is not completely unable to bend forward at all.

8. Lastly, the fourth descriptor states that the person is unable to remain seated for at least 10 minutes. I am unable to form a view that the Applicant during the relevant period was unable to remain seated for at least 10 minutes. On this occasion I am able to readily understand Dr Dzartov’s evidence which is plainly to the effect that with medication the Applicant is able to sit for at least 30 minutes. I accept his evidence on this point.

   Does the Applicant have a continuing inability to work?

9. I note that the Applicant did not participate in a program of support as at 22 February 2016 but that he did have a period of exemption from 10 September 2015 to 18 April 2016.

10. Strictly, this third issue does not arise in light of my findings. But if it did arise I would be satisfied that given his conditions and his state of health generally, the Applicant in reality was not capable either of sedentary or non-sedentary work at any relevant time or times and this is borne out in the evidence of Dr Dzartov.

Conclusion

1. I am satisfied that the decision under review should be set aside for the reasons I have given.

2. I find that the Applicant has a number of impairments satisfying s 94(1)(a) of the Act, including cervical spondylosis and L5 disc protrusion.

3. I find that both such conditions in the relevant period were fully diagnosed treated and stabilised giving rise to an impairment rating under Table 4 of 20 points thereby satisfying the description of severe functional impairment and s 94(1)(b) of the Act.

4. As regards this, I am satisfied the Applicant did not refuse medical treatment which was reasonable.

5. Also I am satisfied the Applicant falls squarely within the first part of descriptor 1(b) of Table 4 in being unable to turn his head without moving his trunk. I find this to be so on the balance of probabilities based on the Applicant’s evidence. I am satisfied he was telling me the truth and that he was focused on the relevant period. I am unable to accept or understand some aspects of the evidence of Dr Dzartov as I have explained.

6. The Applicant’s conditions in question I regard as permanent and sufficiently corroborated in the evidence of Dr Dzartov. Corroboration in any event did not seem to me to be an issue pressed at the hearing

7. In the circumstances, I do not need to proceed to make findings with regard to s 94(1)(c) of the Act.

8. I set aside the decision under review and remit the matter for reconsideration in accordance with law in light of my Reasons.

69.     I certify that the preceding 68 (sixty-eight) paragraphs are a true copy of the reasons for the written reasons herein of Dr Damien Cremean, Senior Member

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

Associate

Dated   3 October 2018

Dates of hearing

Solicitors for the Applicant

31 January 2018 & 17 July 2018

Mr Tim Noonan, Victoria Legal Aid

Solicitors for the Respondent

Mr Tim Noonan, Department of Human Services