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

[2016] AATA 961

Lalic and Secretary, Department of Social Services (Social services second review) [2016] AATA 961 (30 November 2016)

Division	GENERAL DIVISION
File Number	2015/1030
Re	Sucurija Lalic
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Deputy President F J Alpins
Date	30 November 2016
Place	Melbourne

The decision under review is affirmed.

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

Deputy President F J Alpins

SOCIAL SECURITY – application for unlimited portability of disability support pension – decision to cancel disability support pension – whether applicant qualified for disability support pension – whether applicant’s impairment was of 20 points or more under the Impairment tables at the relevant date

Legislation

Administrative Appeals Tribunal Act 1975 (Cth) s 43

Social Security Act 1991 (Cth) ss 26, 27, 94, 1218AAA, Sch 1B

Social Security (Administration) Act 1999 (Cth) ss 80, 179

Social Security and Other Legislation Amendment Act 2011 (Cth)

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) ss 6, 10

Cases

Australian Securities and Investments Commission v Donald (2003) (2003) 136 FCR 7

Harris v Secretary of Employment and Workplace Relations (2007) 158 FCR 252

Secretary, Department of Social Security v Hodgson (1992) 37 FCR 32

REASONS FOR DECISION

Deputy President F J Alpins

30 November 2016

INTRODUCTION

1. This application for review concerns the respondent’s decision to cancel the payment of disability support pension (“DSP”) to the applicant, Mr Sucurija Lalic.  Mr Lalic was granted DSP under the Social Security Act 1991 (Cth) (the “Act”) on 10 May 2001 in respect of a spinal condition. On 1 October 2013, he applied for unlimited portability of his DSP. Consequently, a medical assessment and job capacity assessment were undertaken in order to determine Mr Lalic’s eligibility for unlimited portability of his DSP under s 1218AAA of the Act and whether, in that context, he remained qualified for DSP. The Department informed Mr Lalic about the assessment to be undertaken for those purposes by letter dated 3 October 2013.

2. By letter dated 29 October 2014, the Department of Human Services informed Mr Lalic of its decision to cancel his DSP (with effect from 10 December 2014) as he failed to qualify under s 94(1)(b) of the Act because no impairment rating could be assigned under the Impairment Tables now in force as his spinal condition was not “permanent” for the purposes of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the “Determination”). Accordingly, it was determined that Mr Lalic was not eligible for unlimited portability of DSP. The Department’s decision was affirmed upon internal review and upon review by the Social Security Appeals Tribunal (the “SSAT”); Mr Lalic then sought review by this Tribunal.

   LEGISLATION

3. The essential issue in this proceeding is whether Mr Lalic qualified for DSP on 29 October 2014 (being the date on which his DSP was cancelled), as a person is only eligible for unlimited portability of DSP if they are receiving DSP (s 1218AAA(1)(a) of the Act).

4. Section 94 of the Act relevantly provides:

   “(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;

   ....”

5. While Mr Lalic was granted DSP on the basis that he qualified according to the predecessor tables contained in Schedule 1B of the Act, that Schedule was repealed by the Social Security and Other Legislation Amendment Act 2011 (Cth). As I have indicated, qualification for DSP is now governed by the Impairment Tables and rules for applying them contained in the Determination (see s 26 of the Act).

6. As the respondent’s decision to cancel Mr Lalic’s DSP constituted a determination under s 80 of the Social Security (Administration) Act 1999 (Cth), s 27(4) of the Act requires that the Tribunal apply the Determination upon review, as it was the instrument in force under s 26 of the Act on 3 October 2013, being the date of the Department’s correspondence which constituted an assessment notice for the purposes of s 27(3) of the Act. In simple terms, in considering Mr Lalic’s qualification for DSP, the Tribunal must apply the law as it is now, not as it was at the time Mr Lalic was granted DSP.

   EVIDENCE

7. Mr Lalic relied upon the medical evidence before the Tribunal; furthermore, he was granted leave to lodge further medical reports after the conclusion of the hearing of this proceeding which I have treated as being in evidence.

8. A brief medical report dated 20 February 2014 was prepared by Mr Lalic’s general practitioner, Dr Justin Donaldson, for the purposes of the medical assessment of his qualification for DSP.  In that report, Dr Donaldson diagnosed Mr Lalic as suffering from “chronic low back (lumbar) pain from lumbar spondylosis”, that condition having been diagnosed in 2001 by an orthopaedic surgeon, noting that it related to a work injury suffered in 2001.  I note in that regard that a report of that surgeon, Dr Brian Barrett, dated 15 February 2001 was also before the Tribunal.

9. Dr Donaldson stated that past treatment of that condition involved physiotherapy, current treatment involved taking Panadeine Forte, which has commenced in 2001, and that future or planned treatment involved controlling his back pain with analgesia indefinitely.  He noted that Mr Lalic’s symptoms included severe bilateral sciatica and that he had reduced range of motion in his lumbar spine and difficulty in self-care.  He stated further that, as MRI scans from 2001 to 2007 showed spondylosis, Mr Lalic’s ability to function was likely to deteriorate over time.

10. I note in passing that the Department’s Health Professional Advisory Unit prepared an opinion dated 16 June 2014 to the effect that, having regard to that report and medical records from 2000 and 2005, the lack of recent medical evidence and the unknown cause of any severe sciatica as indicated in the report, it was considered that Mr Lalic’s spinal condition was not “permanent” for the purposes of the Determination.

11. Dr Donaldson prepared a subsequent and somewhat more detailed report, dated 12 August 2015.  He noted that he had been treating Mr Lalic since 11 October 2013 and stated that the “main conditions that Mr Lalic tells me are preventing him from working” were:

    (a)chronic lumbar back pain, which he stated in that report to have been diagnosed in 2000;

    (b)depression and anxiety, those conditions having been diagnosed in May 2015;

    (c)neck pain from cervical osteoarthritis, which had been diagnosed in August 2015 upon a CT scan of his cervical spine – I note that the date of the CT scan given in the report is 12 August 2015, although the related radiology report before the Tribunal states that the CT scan was performed on 31 July 2015.            

12. Dr Donaldson opined that Mr Lalic’s degree of impairment with respect to spinal function, apparently as resulting from both his lumbar and cervical spinal conditions, was of 10 points under table 4 of the Impairment Tables, on the basis that he was “unable to sustain overhead activities” (see the descriptor in paragraph (a)).  However, I note in that regard that that conclusion appears to have been based upon what Mr Lalic had told him with respect to his ability to undertake activities of daily living, rather than upon any clinical assessment of Mr Lalic’s ability to undertake such activities. 

13. With respect to Mr Lalic’s diagnosed conditions of depression and anxiety, Dr Donaldson opined in his report that an impairment rating of 10 points was warranted under table 5 of the Impairment Tables, which concerns mental health function.

14. After the hearing, Mr Lalic lodged a brief report dated 12 February 2016 prepared by a Mr Jonathan Hooper.  There is no indication in that report of Mr Hooper’s medical qualifications – as nothing ultimately turns on the point given the report’s lack of probative value, I shall assume for present purposes that, as indicated by the report’s contents, he is an orthopaedic specialist.  In that report, Mr Hooper noted that Mr Lalic “continues to complain of significant back pain and also of neck and arm pain”.  He also noted that Mr Lalic “said an operation was suggested on his back, but he does not know by whom”.  After very brief comments about his clinical examination of Mr Lalic, including that “he has a jog of spinal movement [sic]”, “straight leg raising is to 10 degrees on both sides” and “[h]is cervical movements are diminished and rotation is diminished on the right”, Mr Hooper opined, remarkably without further explanation, that “[i]t is clear to me that … he will not work again” and further that “I think he is entitled to the invalid pension and I would support his application”.

15. That report appears to have been provided under cover of a medical certificate prepared by a Dr Vasil Velkov, who certified that Mr Lalic “is suffering from … a medical condition … [b]ack pain after the injury in 2000”.

16. I note that I have also had regard to other medical reports prepared in 2001 to 2005, but ultimately they bear little weight with respect to Mr Lalic’s qualification for DSP at the relevant time save for to the extent that Dr Donaldson has had regard to them in preparing his reports.

    CONSIDERATION

17. Based on the evidence before the Tribunal, I am not satisfied that Mr Lalic qualified for DSP on 29 October 2014 which, as I have indicated, is the relevant date. Particularly, I am not satisfied that his impairment was of 20 points or more under the Impairment Tables for the purposes of s 94(1)(b) of the Act.

18. The respondent submitted that, in determining upon review whether s 94(1)(b) of the Act was satisfied, the Tribunal lacked jurisdiction to consider Mr Lalic’s conditions of cervical osteoarthritis and of depression and anxiety “in the absence of a reviewable decision in respect of that condition” having been previously made by the original decision-maker, by the authorised review officer upon internal review or by the SSAT.

19. I doubt the correctness of that submission – by virtue of s 179 of the Administration Act, the Tribunal is reviewing the decision in question, not the basis upon which it was made. Section 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) empowers the Tribunal to “exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision”, provided that it does so “[f]or the purpose of reviewing a decision”. Accordingly, the “Tribunal is not confined to the decision-making power upon which the previous decision-maker actually relied in making the decision under review, but is armed with all the powers and discretions of the original decision-maker that are relevant to the review” (Australian Securities and Investments Commission v Donald (2003) (2003) 136 FCR 7 at 24 per Kenny J, Gray J agreeing; see also Secretary, Department of Social Security v Hodgson (1992) 37 FCR 32 at 38-40 per Hill J). As I have indicated, in considering the correctness of the decision to cancel Mr Lalic’s DSP, the essential issue before the Tribunal is whether Mr Lalic qualified for DSP at the relevant time; in my view, the Tribunal may have regard to any material before it bearing upon the determination of that issue, irrespective of whether it concerns conditions not considered by previous decision-makers.

20. In any event, the true impediment to Mr Lalic’s case lies in the fact that, based upon the materials before the Tribunal, Mr Lalic’s cervical osteoarthritis and his depression and anxiety were diagnosed after his DSP was cancelled. Accordingly, in considering whether s 94(1)(b) of the Act was satisfied at the relevant time, for that reason alone those conditions could not properly be said to have been “permanent” for the purposes of s 6(3)(a) of the Determination at least for the reason that they had not “been fully diagnosed by an appropriately qualified medical practitioner” for the purposes of s 6(4)(a) at that time.

21. Accordingly, it follows that no impairment rating cannot be assigned under the Impairment Tables with respect to any impairment resulting from Mr Lalic’s depression and anxiety. Consonantly, no impairment rating may properly be assigned to any impairment resulting from Mr Lalic’s cervical osteoarthritis. It follows that in assessing Mr Lalíc’s degree of functional impairment with respect to spinal function (under table 4), that task is to be undertaken having regard only to his impairment resulting from his condition affecting his lumbar spine (cf. ss 10(5) and 10(6) of the Determination).

22. In summary, s 94(1)(b) of the Act could only properly be said to have been satisfied at the relevant time if an impairment rating of 20 points was warranted with respect to impairment caused by his lumbar spine condition. As I have indicated, it is a prerequisite to the assignment of an impairment rating that a person’s condition causing that impairment is permanent for the purposes of s 6(3) of the Determination, that is to say that it has been “fully diagnosed”, “fully treated” and “fully stabilised” as prescribed in s 6(4) (see ss 6(5), 6(6) and 6(7)).

23. Even if one accepts, based on the reports of Dr Donaldson, which are somewhat lacking given their brevity in that regard, that Mr Lalic’s lumbar spine condition was “permanent” for the purposes of the Determination at the relevant date and that an impairment rating can therefore be assigned, Dr Donaldson only assigned an impairment rating of 10 points under table 4 with respect to Mr Lalic’s spinal function. As I have said, Dr Donaldson opined that an impairment rating of 10 points under table 4 was warranted, but that assessment appears to have been based upon impairment resulting from not only Mr Lalic’s lumbar spine condition but also from his cervical spinal condition (see ss 10(5) and 10(6) of the Determination). Leaving aside the fact that Dr Donaldson’s assessment lacks probative value in that regard because it has been couched in terms which suggest that it is overly based on Mr Lalic’s reporting of symptoms rather than clinical examination, the insuperable problem is that Dr Donaldson’s report does not provide a proper basis for the Tribunal to conclude what impairment rating ought to be assigned with respect to the only condition which properly arises for consideration in this proceeding, being Mr Lalic’s lumbar spine condition.

24. In any event, even if one were to assume that the impairment rating of 10 points assigned by Dr Donaldson under table 4 is wholly attributable to Mr Lalic’s lumbar spine condition, that is insufficient for the purposes of s 94(1)(b), which requires an impairment rating of 20 points. As will be apparent, while Dr Donaldson opined that an total impairment rating of 20 points was warranted with respect to Mr Lalic’s enumerated conditions, that does not assist Mr Lalic given the basis upon which that total was reached.

25. The report of Mr Hooper lacks probative value, at least for the reason that it was prepared upon examination of Mr Lalic in February of this year and there is nothing in it that bears upon or addresses Mr Lalic’s qualification for DSP at the relevant date in October 2014 (see Harris v Secretary of Employment and Workplace Relations (2007) 158 FCR 252 at [1] per Gyles J). Furthermore, it is apparent that Mr Hooper’s opinion is also based upon Mr Lalic’s cervical spine condition which, as I have said, was not diagnosed until after the cancellation of his DSP. In any event, the report is overly brief and vague and does not appear to have been prepared having regard to the terms of s 94 of the Act and the Determination. The medical certificate of Dr Velkov is of no assistance given its date, content and brevity.

26. As I have indicated, I am therefore not satisfied based upon the material before the Tribunal that Mr Lalic met the requirements of s 94(1)(b) at the relevant time. As the requirements of s 94 are conjunctive, it is unnecessary to consider the other aspects of his qualification for DSP.

    CONCLUSION

27. The decision to cancel Mr Lalic’s DSP was correct, as he did not qualify for DSP at that time.  It follows that he was not eligible for unlimited portability of DSP.  Accordingly, the decision under review must be affirmed.

I certify that the preceding 27 (twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President F J Alpins

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Associate

Dated 30 November 2016

Date of hearing

4 November 2015

Date of final submissions

Applicant

15 March 2016

In person

Solicitor for the Respondent

Mr T Noonan, FOI and Litigation Branch, Legal Services Division, Department of Human Services