Krste Saric and Secretary, Department of Social Services
[2015] AATA 87
•19 February 2015
[2015] AATA 87
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/4693
Re
Krste Saric
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Dr P McDermott RFD, Senior Member
Date 19 February 2015 Place Brisbane The Tribunal affirms the decision under review.
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Dr P McDermott RFD, Senior Member
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – unlimited portability – cancellation of DSP – decision under review affirmed.
LEGISLATION
Social Security (Administration) Act 1999 (Cth) s 80
Social Security Act 1991 (Cth) ss 94, 1218AAA
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) s 6
REASONS FOR DECISION
Dr P McDermott RFD, Senior Member
19 February 2015
INTRODUCTION
I have to determine whether the applicant is qualified to receive Disability Support Pension (“DSP”) and if so, whether there is unlimited portability of DSP.
BACKGROUND
Since 2005 the applicant had been in receipt of DSP. On 9 August 2013 the applicant requested that he be assessed for unlimited portability so that he could travel to Croatia for more than six weeks. Centrelink undertook a review of the impairments and work capacity of the applicant. On 3 October 2013 the applicant attended a Job Capacity Assessment with a rehabilitation counsellor. On 1 May 2014 (“the date of cancellation”) a letter was sent to the applicant to advise him of the decision to cancel the payment of DSP from 12 June 2014 because he was not qualified for DSP and that he was not eligible for the unlimited portability of that benefit. The decision was affirmed by an Authorised Review Officer on 1 August 2014 and by the Social Security Appeals Tribunal (“SSAT”) on 28 August 2014. The decision was stayed until it was reviewed by the SSAT. The applicant now seeks review of the decision by this Tribunal.
LEGISLATION
Cancellation of benefit
The power to cancel a social security payment to a person who is not qualified for its benefit is conferred by s 80(1) of the Social Security (Administration) Act 1999 (Cth) (‘the Administration Act’) which provides:
(1) If the Secretary is satisfied that a social security payment is being, or has been, paid to a person:
(a) who is not, or was not, qualified for the payment; or
(b) to whom the payment is not, or was not, payable;the Secretary is to determine that the payment is to be cancelled or suspended.
If the Secretary is satisfied that the applicant does not meet the qualification requirements for DSP then the Secretary is required to cancel or suspend the payment of DSP.
Qualification for DSP
To be qualified to receive DSP the applicant must satisfy s 94(1) of the Social Security Act 1991 (Cth) (‘the Act’), which 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.
The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (“the Determination”) which came into operation on 1 January 2012. Part 2 of the Determination contains rules for applying the Impairment Tables. Section 6 of the Determination provides that the Impairment Tables may only be applied after consideration of a person's medical history. A rating can only be assigned for an impairment if the person’s condition causing that impairment is permanent. Subsection 6(4) of the Determination provides that a condition is permanent if it has been fully diagnosed, fully treated and fully stabilised and is likely to persist for more than 2 years.
Unlimited portability
Section 1218AAA of the Act provides:
(1) The Secretary may make a written determination that a particular person’s maximum portability period for disability support pension is an unlimited period, if all of the following circumstances (the qualifying circumstances) exist:
(a)the person is receiving disability support pension;
(b)the Secretary is satisfied that the person’s impairment is a severe impairment (within the meaning of subsection 94(3B));
(c)the Secretary is satisfied that the person will have that severe impairment for at least the next 5 years;
(d)the Secretary is satisfied that, if the person were in Australia, the severe impairment would prevent the person from performing any work independently of a program of support (within the meaning of subsection 94(4)) within the next 5 years.
CONSIDERATION
There is no issue that the applicant satisfies s 94(1)(a) of the Act. There is medical evidence that he has a number of physical impairments including a shoulder and upper arm condition, a skin disorder, a spinal disorder and a cardiac condition.
I will now consider whether the applicant satisfies s 94(1)(b) of the Act.
I will consider the various claimed impairments.
Shoulder and upper arm condition
I am satisfied that the applicant’s shoulder and upper arm condition is permanent and is fully diagnosed, treated and stabilised and so can be rated under the Impairment Tables. The condition can therefore be rated under Table 2 (Upper Limb Function).
On 7 May 2014 Dr Mark Robinson reported that the applicant has left rotator cuff tendonitis with a date of onset of 2011 and right rotator cuff tendonitis and joint arthritis with a date of onset of May 2001.
In applying a rating to this condition I have to consider the functional impact of the condition. Recent medical reports have given differing opinions as to the functional impact of the shoulder and arm condition. Dr Rodrigo in his report of 16 June 2014 has reported that the pain in both shoulder joints is a medical condition which is generally well managed and which causes minimal or limited impact on the ability of the applicant to function. On this basis the applicant should be assigned a rating of 0 points for the condition.
Dr Robinson reported on 7 May 2014 that the functional impact of the condition is poor strength and endurance with the use of both shoulders. I have considered the remarks that the applicant made to the rehabilitation counsellor. The applicant then asserted that he cannot shave himself easily, he has some difficulty dressing, he cannot lift his arms above shoulder height, he avoids carrying anything heavy but that he can use a pen and do up buttons. The applicant also reported that he is his wife’s carer and that he does a lot of the home duties. The applicant informed the SSAT that he cannot comb or wash his hair, has difficulties shaving and can do up buttons but slowly. Dr Brennan in his letter of 18 December 2014 has reported that the applicant has poor arm function which interferes with all activities of daily living.
On the basis of the assertions of the applicant, he can satisfy 3 of the 6 descriptors for 10 points under Table 2. This is because the applicant has difficulties with picking up a 1 litre carton full of liquid, picking up a light but bulky object requiring the use of 2 hands together and doing up buttons or tying shoelaces. This has the consequence that the applicant could not be said to have difficulties with most of the activities to be assigned a 10 points rating and so a rating of 5 points is fair and appropriate. The applicant is the recipient of carer payment and performs light home duties. He also still drives a car.
Dermatitis condition
I am satisfied that the skin condition of the applicant is permanent and is fully diagnosed, treated and stabilised. The condition can therefore be rated under Table 14 (Functions of the Skin). On 29 May 2014 Dr Peters, Dermatology Department, Princess Alexandra Hospital, reported on the dermatitis condition. Dr Peters considered that the condition is managed with topical corticosteroids. The applicant informed the SSAT that his skin condition is under control but can flare up and can affect different parts of his body. On 11 December 2014 Dr Curchin advised that the condition “will flare if he works in hot, humid conditions”, she also advised that the applicant should avoid working in conditions which will cause the condition to flare.
Section 11(4) of the Determination provides that when assessing an impairment which is episodic or fluctuating a rating must be assigned which reflects the overall functional impact of the impairment taking into account the “severity, duration and frequency of the episodes or fluctuations as appropriate.” There is limited medical evidence as to the frequency of any flare of the condition and the impact that the condition has on the applicant’s ability to perform daily activities.
The condition should be assigned a rating of 0 points under Table 14 having regard to two recent medical reports that were made in the same month as the date of cancellation. It is fair to rely on the reports which independently reach the same conclusion. On 23 May 2014 Dr Brennan, the treating doctor, reported that the atopic dermatitis condition is generally well managed and causes minimal or limited impact on the ability of the applicant to function. On 29 May 2014 Dr Peters, Dermatology Department, Princess Alexandra Hospital, reported that the atopic dermatitis condition is generally well managed and causes minimal or limited impact on the ability of the applicant to function.
Lumbar and cervical spondylosis condition
The lumbar and cervical spondylosis condition of the applicant can be regarded to be permanent and is fully diagnosed, treated and stabilised. The condition can be assessed under Table 4 (Spinal Function).
Dr Michael Coroneos, Neurosurgeon, reported on 21 May 2014 that the applicant should avoid heavy lifting and heavy physical labour but is not restricted neurologically from performing other full time employment.
The applicant informed the rehabilitation counsellor that he has pain, problems with walking and can sit or stand for about 30 minutes without pain and that he is able to turn his trunk from side to side and look upwards and sideways. The applicant asserted to the SSAT that he cannot bend at all as it is too painful. The SSAT concluded that the evidence that was given to that Tribunal was not consistent with the evidence to the job capacity assessor or the report to the job capacity assessor. The applicant informed the authorised review officer that he does tasks around the house, though very slowly and that he does drive but only for 5 to 10 minutes.
On the basis of the assertions made by the applicant to the rehabilitation counsellor, the spinal condition does not meet descriptions (a) and (c) for a 5 point rating. This is because the applicant then confirmed that he was able to turn his trunk from side to side and look upwards and sideways. The applicant asserted to the SSAT that he was unable to bend as it is too painful. However, I am mindful of the directive in the Introduction to Table 4 that self-report of symptoms is insufficient and there is no corroborating evidence of such a disability in the report of Dr Coroneos dated 21 May 2014 or in the treating doctor’s reports by Dr Brennan and Dr Peters that were also made in May 2014 and which do not list the spinal conditions as having any impact.
On the basis of the medical evidence before me the spinal condition should be assigned a rating of 0 points as none of the descriptions for a 5 point rating are satisfied.
Cardiac condition
The applicant has had valve replacement surgery. I am satisfied that this cardiac condition can be regarded as permanent and is fully diagnosed, treated and stabilised. The condition can therefore be rated under Table 1 (Functions requiring Physical Exertion and Stamina).
The introduction to Table 1 provides that corroborating evidence confirming the diagnosis of a condition can be a report from a medical specialist confirming the diagnosis of conditions associated with cardiac impairment. In considering the cardiac condition I will refer to reports from The Prince Charles Hospital Cardiology Program that are in evidence.[1]
[1] Exhibit A, T17.
The applicant asserted to the authorised review officer that he can walk for an hour but that he needs to stop and rest every 50 to 100m. This assertion is not consistent with a statement that the applicant made to Dr Azzam. That doctor, who is the registrar for Dr Burstow, senior staff cardiologist, reported on 22 October 2013 that the applicant was feeling well and could walk 3km daily with no shortness of breath or chest pain. When I read out this report to the applicant he denied that he made any such remarks to the cardiologist as he asserted that he informed the cardiologist that he was in pain. The applicant in giving evidence stated that his specialists have been unable to find the cause of his pain. I informed the parties that there have been no recent reports of the applicant attending a pain management clinic. I was then advised that the applicant declined to attend an appointment at a pain management clinic in Ipswich.
There is no medical evidence that any pain is attributable to his cardiac condition. Dr Sathianathan, relieving cardiologist of The Prince Charles Hospital Cardiology Program reported on 27 February 2012 that the applicant has “remained well from a cardiac point of view with no significant chest pain, dyspnoea, orthopnea (he sleeps on only one pillow) or peripheral oedema”. Dr Roper, echocardiology fellow of The Prince Charles Hospital Cardiology Program reported on 26 February 2013 that the applicant “appears to be going extremely well clinically”. That report records advice from the applicant and his wife that the applicant “has been extremely active and denies any shortness of breath on exertion.”
I assign a rating of 0 points under Table 1. The cardiac condition should be assigned a rating of 0 points under Table 1 as there is no medical evidence before me of any functional impact on activities requiring physical exertion or stamina.
Mental health condition
Dr Rodrigo has reported that the applicant has poor cognition, irritability, anxiety and difficulties with interpersonal behaviour. The applicant himself has stated that he has had difficulties with Centrelink staff who have threatened to call the police. The wife of the applicant has asserted for some time that the applicant has PTSD. However, on 25 October 2013 Dr Brennan, the treating doctor, advised the rehabilitation counsellor that there was no formal diagnosis or treatment for this condition.
The only time when the applicant has been treated for this condition was after the date of cancellation. The applicant was diagnosed by a psychiatrist or clinical psychologist as having a mental health condition before the date of cancellation. The applicant commenced treatment on medication on 16 June 2014. This has the consequence that at the time of cancellation the condition could be regarded as untreated. There is no evidence before me in relation to the matters outlined in subsection 6(5) of the Determination that relate to a condition being fully diagnosed and fully treated. I do not consider that the mental health condition of the applicant can be assigned a rating under Table 5 (Mental Health Function).
I also make the observation that on 3 October 2013 the applicant stated that he did not wish to be assessed for the PTSD condition which was reported to Centrelink by his wife. This had the consequence that the Health Professional Advisory Unit of Centrelink did not assess the condition, which was not mentioned in the recent treating doctor’s report of Dr Brennan dated 9 September 2013. The respondent could also not arrange for any independent evaluation of the condition by a consultant psychiatrist.
Other medical conditions
The applicant has other medical conditions which on the medical evidence would not attract a rating of greater than 0 points under the relevant Impairment Table. This is the case of the diabetes and hyperlipidemia conditions which Dr Rodrigo on 16 June 2014 considered were generally well managed and which causes minimal or limited impact on the ability of the applicant to function. The Department of Diabetes & Endocrinology reported in 2011 that there was “well controlled diabetes with no established complications at present”.
The applicant has had cataract surgery. His eye condition is not listed on any recent medical reports as having any functional impact. There is no report from an ophthalmologist or ophthalmic surgeon which confirms a diagnosis of conditions associated with vision impairment. The applicant still is able to drive.
There is no medical evidence as to whether the condition of Dupuytren’s contracture of the left hand has been treated.
Cumulative Impairment Rating
The applicant has a cumulative impairment rating of 5 points and does not satisfy
s 94(1)(a) of the Act. On this ground alone the applicant is not eligible for DSP. It is therefore not necessary for me to consider whether the applicant has a continuing inability to work.
Unlimited portability
A determination cannot be made under s 1218AAA of the Act. The applicant is not entitled to unlimited portability as he does not satisfy all of the qualifying circumstances in s 1218AAA of the Act. He is not eligible to receive disability support pension and he does not have a severe impairment within the meaning of s 94(3B) of the Act.
Even if the applicant was found to have a severe impairment I cannot be satisfied that the applicant is not capable of any work. The specialists who have examined the applicant have opined that the applicant is capable of work. Dr Mark Robinson who reported on the shoulder and upper arm condition of the applicant had previously recommended a return to work for the applicant. In his latest report of 7 May 2014 he indicated that he did not wish to provide a medical certificate as to whether the applicant was able to work. I have previously mentioned that on 21 May 2014 Dr Michael Coroneos, Neurosurgeon, reported that the applicant should avoid heavy lifting and heavy physical labour but was not restricted neurologically from performing other full time employment. On 20 November 2011 Dr Rodrigo stated that he was uncertain about the applicant’s future work capacity. On 11 December 2014 Dr Curchin stated that the applicant should avoid working in hot, humid conditions. In her report, she does not certify that the skin condition prevents the applicant from working.
CONCLUSION
At the date of cancellation the applicant did not qualify for DSP and it was appropriate for the payment of DSP to be cancelled under s 80(1) of the Administration Act. The applicant did not therefore qualify for unlimited portability of that benefit. In my view Centrelink has acted fairly in staying the cancellation decision until the SSAT had considered the eligibility of the applicant for DSP.
The applicant has limited English communication skills. He stated that after he arrived in Australia he did not want to attend English language classes. The recommendation of Ms Lau, occupational therapist concerning alternative work should be considered. The applicant advised that he has been promised administrative work by a previous employer. He would be more readily employed if he was to improve his English skills and should be afforded every assistance to enable him to enter the workforce.
DECISION
I affirm the decision under review.
I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott RFD, Senior Member
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Associate
Dated 19 February 2015
Date(s) of hearing 20 January 2015 Applicant In person Solicitors for the Respondent Ms Donna Smith
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