Kris Stojanovski and Secretary, Department of Social Services

[2014] AATA 900

[2014] AATA 900 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2014/3014
Re	Kris Stojanovski
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Mr C Ermert, Member
Date	5 December 2014
Place	Melbourne

The Tribunal affirms the decision under review.

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Mr C Ermert, Member

CATCHWORDS

SOCIAL SERVICES - Disability Support Pension - period in question - physical impairment - Impairment Tables - not fully treated - not permanent - decision affirmed

LEGISLATION

Social Security Act 1991, s94(1)

Social Security (Administration) Act 1999, Schedule 2

Social Security (Tables for the Assessment of Work-related Impairments for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Mr C Ermert, Member

5 December 2014

INTRODUCTION

1. In mid-2013 Mr Stojanovski, the Applicant, was admitted to Sunshine Hospital suffering from weakness in the lower limbs and sensory changes.  He was subsequently transferred to Western General Hospital and later to Royal Melbourne Hospital.  On 14 August 2013 Mr Stojanovski was diagnosed with transverse myelitis.

2. On 25 September 2013 Mr Stojanovski submitted to Centrelink a claim for Disability Support Pension (DSP).  Centrelink is the service provider for the Department of Social Services, the Respondent.  On 3 December 2013 a Centrelink officer decided that Mr Stojanovski was not qualified for DSP as his impairment did not attract a rating of 20 points or more from the Impairment Tables (the original decision).  On 11 March 2014 a Centrelink authorized review officer (ARO) decided that Mr Stojanovski’s condition was not permanent as it had not been fully treated and stabilised.  Accordingly, the condition could not be assigned an impairment rating.  The ARO affirmed the original decision. 

3. On 7 April 2014 Mr Stojanovski lodged an application with the Social Security Appeals Tribunal (SSAT) for review of the ARO decision.  On 14 May 2014 the SSAT affirmed the decision.  On 12 June 2014 Mr Stojanovski lodged an application with this tribunal for a review of the SSAT decision.

   THE HEARING

4. Due to Mr Stojanovski’s condition the hearing was conducted by telephone.  Mr Stojanovski represented himself and gave evidence on affirmation.  Mr James Henderson represented the Respondent.

5. I had before me:

   ·the documents provided by the respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents); and

   ·the Respondent’s Statement of Facts and Contentions dated 30 September 2014, with the attached supplementary documents of Centrelink records (ST1).

   THE LEGISLATION

6. The relevant legislation is contained in:

   · Social Security Act 1991 (the Act),

   ·Social Security (Administration) Act 1999 (the Administration Act), and

   ·Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables).

7. Section 94(1) of the Act provides relevantly

   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

   …

   THE ISSUES

8. The Respondent accepts that Mr Stojanovski has an impairment and satisfies section 94(1)(a) of the Act.  The issues in contention are whether Mr Stojanovski’s impairment attracts 20 points or more under the Impairment Tables and, if so, whether he has a continuing inability to work. 

   THE EVIDENCE

9. Mr Stojanovski testified that when his symptoms became evident, he was admitted to Sunshine Hospital.  From there he was transferred to Western General Hospital in Footscray where he was diagnosed with transverse myelitis (TM).  He was then discharged from Western General Hospital but was not prescribed drugs. 

10. The Applicant said his condition deteriorated and he was admitted to the Royal Melbourne Hospital (RMH).  At RMH he underwent MRI scans and was treated with electric shocks.  He said the diagnosis of TM was confirmed and he was treated with steroids.  Mr Stojanovski said he was released from RMH to the Community Based Rehabilitation Centre (CBR) in Sunshine where he had to learn how to walk, cook and perform other daily tasks.  When he was released from CBR he still had to use two crutches in order to walk. 

11. Mr Stojanovski continued to attend CBR for hydrotherapy treatment and social work therapy.  While there he was also seeing a psychiatrist.  His condition continued to deteriorate and after ten months he was admitted back into hospital.

12. In response to questions from Mr Henderson, Mr Stojanovski said that:

    ·the first symptoms of TM are recorded in the RMH report;

    ·he started therapy at CBR immediately after his discharge from RMH and continued until March 2014; and

    ·he was seen by specialists, first in Western General Hospital and then as an inpatient in RMH.

    SUBMISSIONS

13. In his oral submissions, Mr Henderson relied on the submissions in the Respondent’s Statement of Facts and Contentions. He reiterated that the claim was made on 25 September 2013. He submitted that the Administration Act provides for a period of 13 weeks for a person to become qualified for DSP. He contended that the relevant period was from 25 September 2013 to 24 December 2013.

14. Referring to section 94 of the Act, Mr Henderson accepted that Mr Stojanovski had a physical impairment and sub-section (1)(a) was not in dispute.  However, the issue of 20 impairment points (sub-section (1)(b)) was in dispute.  Mr Henderson contended that at the time of the claim and during the period in question, Mr Stojanovski’s TM was not permanent as it was not fully treated and stabilised and was not considered likely to persist for more than two years. 

15. Mr Henderson referred to Dr Yang’s report (T5), in which Dr Yang recorded that the diagnosis was presumptive and required an MRI for confirmation. The condition was expected to continue for three to 24 months and would continue to improve.  Mr Henderson submitted that Mr Stojanovski only commenced community rehabilitation in November 2013.  He contended that this was reasonable treatment which could be expected to result in improvement of functional capacity. 

16. Mr Henderson submitted that Mr Stojanovski did not consult with Dr Marriott, a neurologist, until March 2014, which is outside the period in question.  He submitted further that Dr Marriott’s report showed that Mr Stojanovski was still being treated with plasma exchange and steroids on 1 April 2014. 

17. Mr Henderson referred to the decision in the matter of Fanning and Secretary, Department of Social Services [2014] AATA 447 in which the Tribunal found at paragraph 33:

    … While hindsight may suggest that treatment did not result in improvement within two years, that is not the question for the Tribunal to determine.  The legislation requires the Tribunal to consider the treatment that has taken place and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter.  For that reason, evidence of treatment, and the efficacy of that treatment, after the relevant period is not directly relevant to the Tribunal’s decision.

18. Mr Henderson referred also to the decision in Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 in which the Tribunal found at paragraph 34:

    In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available at the time of the application for DSP (and the subsequent 13 weeks). … If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application.  It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.

19. Mr Henderson contended that the Tribunal must look only at the period in question and not indulge in hindsight nor take into consideration any deterioration of the condition after the period in question.  He submitted that in this case, there is no evidence that Mr Stojanovski’s condition was fully treated in the period in question. He contended that the condition is not permanent and therefore it cannot be awarded 20 points under the Impairment Tables. 

20. Additionally, Mr Henderson submitted that there is no evidence that Mr Stojanovski participated in a program of support.

21. In response, Mr Stojanovski submitted that it was not his fault that he was not treated within the 13 week period.  He said there was a 12 month wait for an appointment with Dr Marriott.  In regard to the program of support, Mr Stojanovski said he tried to attend the support program but he was suspended from the program by Centrelink because of his disability.

    TRIBUNAL CONSIDERATION

22. Section 6(3)(a) of the Impairment Tables provides that an impairment rating can only be assigned to an impairment if the person’s condition is permanent.  Section 6(4) provides that a condition is permanent if:

    (a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and

    (b)the condition has been fully treated; and

    Note: For fully diagnosed and fully treated see subsection 6(5).

    (c)the condition has been fully stabilised; and

    Note: For fully stabilised see subsection 6(6).

    (d)the condition is more likely than not, in the light of available evidence, to persist for more than 2 years.

23. Dr Marriott’s report (T16, page 63) records that Mr Stojanovski’s diagnosis of TM was confirmed on 15 November 2013, a date within the period in question.  The Respondent accepts that the condition has been fully diagnosed.  From the evidence, I find that Mr Stojanovski’s condition was fully diagnosed by an appropriately qualified medical practitioner within the period in question. 

24. In determining whether the condition is fully treated, section 6(5) of the Impairment Tables requires me to consider what treatment is continuing or planned in the next two years.  In his report dated 17 September 2013, (T5) Dr Yang records the current treatment as Hospitalisation (metylprednisilone infusion) commenced on 14 August 2013, and Rehabilitation commenced on 30 August 2013.  Dr Yang records also the planned and future treatment as Repeat MRI spine – October 2013.  Neurology follow up – October 2013. 

25. Dr Marriott’s report dated 6 June 2014 (T16) records further treatment of plasma exchange and more intra-venous steroids, Imuran and prednisolone, commencing on 1 April 2014.  Dr Marriott also proposes future treatment of physiotherapy, oral steroids and Imuran.  RMH’s records (T16, page 73) show that Mr Stojanovski had an MRI scan on 15 April 2014.

26. From the evidence it is clear that Mr Stojanovski’s TM was not fully treated within the period in question.  He underwent further investigations and treatment in March and April 2014, with more treatment planned for the future.  This was not the fault of Mr Stojanovski.  His evidence was that he could not see Dr Marriott any earlier.  Nevertheless, the facts are that he did not receive the treatment within the period in question.  As a result, his condition was not fully treated within the relevant period and I find accordingly.

27. As Mr Stojanovski’s condition was not fully treated, it does not meet the provisions of section 6(4)(b) of the Impairment Tables.  Accordingly, his condition cannot be permanent in the terms of section 6(3)(a) of the Impairment Tables and cannot be assigned an impairment rating under the provisions of section 6(3) of the Impairment Tables. 

28. As a result, Mr Stojanovski’s impairment from his condition does not have a rating of 20 points or more under the Impairment Tables and his impairment does not comply with the provisions of section 94(1)(b) of the Act. 

29. The structure of section 94(1) of the Act requires that all of the sub-sections be satisfied before a person is qualified for DSP.  I have found that Mr Stojanovski does not satisfy the provisions of section 94(1)(b) of the Act and, as a result,  cannot satisfy the provisions of section 94(1) of the Act.  I am not required to consider any of the other provisions of the Act. 

30. I find that Mr Stojanovski does not qualify for DSP in this application. 

31. My finding is related to Mr Stojanovski’s condition as evidenced during the period in question.  This finding has no effect on any future applications Mr Stojanovski may care to submit.

    DECISION

32. The Tribunal affirms the decision under review.

I certify that the preceding 32 (thirty -two) paragraphs are a true copy of the reasons for the decision herein of Mr C Ermert, Member

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Associate

Dated 5 December 2014

Date of hearing	27 October 2014
Applicant	In person
Advocate for the Respondent	Mr J Henderson