Krivoshev and Secretary, Department of Social Services
[2014] AATA 132
•12 March 2014
[2014] AATA 132
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/5780
Re
Nicholas Krivoshev
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Mr Dean Letcher, QC, Senior Member
Date 12 March 2014 Place Sydney The decision under review is affirmed
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Mr Dean Letcher, QC, Senior Member
CATCHWORDS
SOCIAL SECURITY - Disability Support Pension – physical impairment - whether condition permanent - whether condition fully diagnosed, treated and stabilised at relevant time - Impairment Tables - decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
CASES
Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252
Re Lawson and Secretary, Department of Social Security (AAT 11767, 11 April 1997)
Secretary, Department of Social Security v Goudge (1989) 17 ALD 415
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
REASONS FOR DECISION
Mr Dean Letcher, QC, Senior Member
12 March 2014
Nicholas Krivoshev (‘the applicant’) seeks a review of the decision of the Social Security Appeals Tribunal of 22 October 2013 which affirmed Centrelink’s decision to reject his application for Disability Support Pension (‘DSP’) received by the respondent on 8 August 2012. That application claims conditions of “Pain in knees, heels & ankles. Lower back pain”.
LEGAL BACKGROUND
The Applicant’s condition was assessed by both Centrelink and the SSAT in accordance with the criteria set out in s 94 of the Social Security Act1991 (the ‘Act’) and the Impairment Tables found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the ‘Impairment Tables’). Under this criteria the Applicant must establish an impairment rating of 20 points or more, as well a continuing inability to work (CITW), as a result of health conditions existing at the date of application, or during the following 13 week period through to 7 November 2012 (the ‘relevant period’): s 42 and Sch 2 of the Social Security (Administration) Act 1999.
LEGAL BACKGROUND
The applicant’s conditions were assessed by both Centrelink and the SSAT in accordance with the criteria set out in s 94 of the Social Security Act1991 (“the Act”) and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011. Under these criteria the applicant must establish an impairment rating of 20 points or more, as well a continuing inability to work (“CITW”), as a result of health conditions existing at the date of application, or during the following 13 week period through to 7 November 2012 (“the relevant period”) under s 42 and Sch 2 of the Social Security (Administration) Act 1999. The previous Schedule 1B was repealed with effect on 1 January 2012 and replaced by the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011. It is the latter tables which are relevant to this case.
Unlike many other reviews undertaken by the Administrative Appeals Tribunal (“the AAT”), this Tribunal is not able to undertake a hearing de novo in this matter and is consequently unable to have regard to the applicant’s situation at the time of hearing. The applicant’s state of disability at the time of hearing is not the issue: Secretary, Department of Social Security v Goudge (1989) 17 ALD 415, Re Lawson and Secretary, Department of Social Security (AAT 11767, 11 April 1997). Under the Social Security (Administration) Act1999 the role of the AAT is to decide whether the applicant establishes a case for a pension as at the time of the DSP application or in the 13 week period thereafter, that is, during the relevant period. That is, the applicant’s health conditions as assessed after 7 November 2012 are irrelevant to these proceedings and cannot be considered by the Tribunal. (Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252).
To form a basis for an impairment rating, a condition must be considered “permanent” as defined in the Impairment Tables, meaning each and every of the following:
(a)fully diagnosed;
(b)treated;
(c)fully stabilised (unlikely to improve within the next two years) (“stabilised”); and
(d)more likely than not it will persist for the foreseeable future, taken as lasting for more than two years.
Unless a health condition satisfies each of the above criteria, it cannot be given an impairment rating under the Impairment Tables.
In deciding whether a condition has been fully diagnosed, treated and stabilised, the following must be considered:
(a)what treatment or rehabilitation has occurred;
(b)whether treatment is still continuing or is planned in the near future; and
(c)whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next two years.
Reasonable treatment is taken to be treatment that is feasible and accessible, a substantial improvement can reliably be expected and the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient.
In order to establish whether a person has a CITW the Tribunal must be satisfied that the impairment is of itself sufficient to prevent the person from doing any work or training activity independently of a program of support within the next two years. However, for the purpose of determining whether a person has a CITW the assessor is required to disregard the effect of any impairment that has not been assigned a rating. That is, unless a condition is “permanent” (as defined above), it will not be taken into account when assessing CITW.
The treating general practitioner’s report of Dr N S Kaushik dated 8 August 2012 noted the conditions of significant impact to be:
(a)Osteopenia (pain in left hip)
(b)Lower back pain
(c)Pain in both heels and ankles
(d)Polyarthritis (pain in left elbow)
Other conditions with only mild or limited impact were:
(a)Allergies (to medications)
(b)Asthma/hay fever
(c)(May have) psoriasis
(d)(Occasionally) gout
The application was rejected by Centrelink because the applicant did not attend a Job Capacity Assessment (‘JCA’) appointment; was rejected by the Authorised Review Officer on the grounds that the conditions relied upon were not shown to be ‘permanent’, and rejected once again on those grounds by the Social Security Appeals Tribunal (‘SSAT’).
The only relevant medical material in the case is the report referred to above. It makes reference to specialist referrals and to investigations including an X-ray of both heels dated 3 October 2013 (well outside the relevant period). However, the results of those other investigations - completed or only contemplated - are not in evidence. Additionally, there are a variety of medical certificates dated between 19 August 2010 and 30 March 2012 which were obtained for Newstart purposes, which are unhelpful for the DSP assessment.
The conditions claimed in the general practitioner’s report are:
OSTEOPENIA
This condition is a reduction of calcium in the bones that causes joint pain, and which is also a possible precursor of osteoporosis. The doctor believed it caused pain in the left hip and heels. He stated that the current impact on function was expected to persist for more than 24 months, but also the effect of the condition on the applicant’s function within the next two years was “uncertain”. He noted:
“Osteopenia may improve with Calcium & Vit D & walking in morning sun” and for future/planned treatment he said:
“Attends Dr Rosario Loretta for his back pains; & is taking Tab Panadeine Forte meanwhile”.
Also, but in the section dealing with Polyarthritis, he noted:
“He is due for MRI of lumbar spine & both knees…Has seen a rheumatologist who has advised an MRI of lumbar spine and both knees”
Mr Krivoshev, who was unrepresented, gave evidence before the Tribunal but appeared to have no real idea of the issues required to be addressed. Those issues were set out in the respondent’s letter of 2 December 2013, in the SSAT’s reasons for decision, and in the respondent’s Statement of Facts and Contentions. The applicant said that he did not know the cause of the pains that he suffered, and that he was awaiting appointments for an MRI and X-rays.
On the evidence before the Tribunal which relates to the applicant’s claimed condition of Osteopenia within the relevant period, the condition is not fully diagnosed nor fully treated, and the future progress in the next two years is unknown, with investigations continuing and only symptomatic treatment being obtained. The condition is not ‘permanent’ within the meaning of the Act.
LOWER BACK PAIN
In the Polyarthritis section of Dr Kaushik’s report he refers to the “possible sacralisation of L-5. H/O [history of] pains in lower back. He is due for MRI of lumbar spine and both knees. There is a family H/O mother having some sort of joint disease” with future/planned treatment as recorded above. “Has seen a rheumatologist who has advised an MRI of lumbar spine & both knees….not yet done as waiting for an appointment”. Again, the condition is still to be investigated for a full diagnosis and decisions on treatment. It is not ‘permanent’ within the meaning of the Act.
PAIN IN BOTH HEELS AND KNEES
This complaint is part of the second significant condition in Dr Kaushik’s report, namely Polyarthritis, which he believes affects joints throughout the body. A problem is that the applicant has gastric bleeding from NSAID’s (‘Non- Steroidal Anti-Inflammatory Drugs’) so he has trouble with pain relief. However, the definitive diagnosis and decisions on treatment of the painful joints have not been made, and future progress of the alleged condition and its treatment are uncertain. As the doctor notes, the effect of the condition on ability to function within the next two years is expected to ‘fluctuate’ and “More can be commented after MRI results are seen…”. No MRI has been obtained. The condition is not ‘permanent’.
POLYARTHRITIS (PAIN IN RIGHT ELBOW)
I have dealt with the condition of polyarthritis believed to be affecting many joints including spine, knees and elbow. This remains to be investigated, confirmed as a diagnosis by a specialist rheumatologist after an MRI, and then treated and stabilised. This is not ‘permanent’ within the meaning of the Act.
OTHER CONDITIONS
The other matters with only mild or limited impact are allergies, asthma/hay fever, possible psoriasis, occasional gout and plantar fasciitis. The first four conditions are generally well-managed, cause minimal impact and improvement is expected with the treatments specified by Dr Kaushik in his report. There is little medical evidence concerning treatment and possible future improvement of the plantar fasciitis, and the medical reports cover only the period August 2010-February 2011 with an X-ray report on 3 October 2013. There is no material bearing on the nature, treatment or effect of the condition in the relevant period 8 August 2012 to 7 November 2012.
None of the Other Conditions is ‘permanent’ within the meaning of the Act. They are not able to be assessed for ratings points.
CONTINUING INABILITY TO WORK
None of the applicant’s conditions is fully diagnosed, treated and stabilised, consequently s 94(1)(b) of the Act is not satisfied, and there are no impairments able to be assigned a rating from the Tables. It is not necessary to proceed further to conclude that there is no established Continuing Inability to Work.
CONCLUSIONS
The applicant was not qualified for DSP at the time of receipt of the claim on 8 August 2012, nor within the 13 week period thereafter expiring on 7 November 2012.
DECISION
The decision under review is affirmed.
I certify that the preceding 25 (twenty -five) paragraphs are a true copy of the reasons for the decision herein of Mr Dean Letcher, QC, Senior Member
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Associate
Dated 12 March 2014
Date of hearing 29 January 2014 Applicant In person Joined Party In person
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