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

[2019] AATA 145

Ljuca and Secretary, Department of Social Services (Social services second review) [2019] AATA 145 (14 February 2019)

Division:GENERAL DIVISION

File Number:           2018/3201

Re:Alem Ljuca

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member Richard West

Date:14 February 2019

Place:Melbourne

The Tribunal affirms the decision under review.

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

Member

SOCIAL SECURITY – refusal of disability support pension – lower back pain – left knee injury – depression – whether conditions fully diagnosed, fully treated and fully stabilised – decision affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

Cases

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs, Re [2012] AATA 922
Covenden and Secretary, Department of Social Services, Re [2018] AATA 353

Fanning and Secretary, Department of Social Services (2014) 144 ALD 133[2014] AATA 447

Secondary Materials

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

Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)

REASONS FOR DECISION

Member West

14 February 2019

BACKGROUND

1. This matter concerns the refusal of the Disability Support Pension (DSP) to the Applicant and is a Second Tier Review of that decision by the Administrative Appeals Tribunal, General Division (Second Tier Review).

2. The relevant history of the matter is as follows:

   ·The Applicant made his original application for DSP on 1 June 2017;

   ·Centrelink assessed and refused the application on 17 September 2017 (Initial Decision);

   ·A Departmental authorised review officer (ARO) affirmed this decision on 1 February 2018;

   ·A review of the Initial Decision was conducted by the Administrative Appeals Tribunal (Social Services & Child Support Division) (First Tier Review) and an oral decision affirming the Initial Decision handed down on 8 March 2018; and

   ·The Applicant applied for a Second Tier Review of the Initial Decision on 4 June 2018.

3. A hearing in relation to the Second Tier Review was held on 3 December 2018.  The Applicant was self-represented.  The Respondent was represented by Mr de Uray, a solicitor with the Department of Human Services.

   LEGISLATION

4. I have had regard to the following relevant legislation in making this decision:

   ·Social Security Act 1991 (the Act);

   ·Social Security (Administration) Act 1999 (the Administration Act);

   ·Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables): a determination made by the Minister under s 26(1) of the Act which came into effect on 6 December 2011;

   ·Social Security (Active Participation for Disability Support Pension) Determination 2014; and

   ·Administrative Appeals Tribunal Act 1975.

   QUALIFYING PERIOD

5. A decision in relation to the granting of DSP must be made having regard to the Applicant’s condition in the period commencing on the day the application is lodged and the 13 weeks thereafter.  This is called the qualification period.[1]

   [1] See ss 37 and 42 and cls 3 and 4 of Schedule 2 of the Social Security (Administration) Act 1999.

6. In this case the qualification period commenced on 1 June 2017 and ended on 31 August 2017.

7. In assessing whether a condition has stabilised and is likely to persist for the future the Tribunal must look at the situation during the qualification period, having regard to the evidence available at the time.  Evidence of deterioration in the Applicant’s condition subsequent to the qualification period is not relevant, save as to the weight the Tribunal might give to competing prognostications made about the Applicant’s condition during the qualification period.[2]

   [2] See Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 992 at [34]; Fanning and Secretary, Department of Social Services (2014) 144 ALD 133 at [33] and Re Covenden and Secretary, Department of Social Services [2018] AATA 353 at [7].

   DSP QUALIFICATION

8. To qualify for a DSP an applicant must satisfy the requirements set out in s 94(1) of the Act as assessed during the qualification period.

9. In essence s 94(1) requires that:

   ·the Applicant have a physical, intellectual or psychiatric impairment;

   and

   ·the Applicant’s impairment or impairments is/are fully diagnosed, fully treated and fully stabilised and likely to persist for more than two years;

   and

   ·the Applicant has a severe impairment (an impairment rating at least 20 points on a single Impairment Table); or

   ·the Applicant’s impairments together rate at least 20 points on the Impairment Tables;

   and

   ·the Applicant has a continuing inability to work; or

   ·the Secretary is satisfied that the Applicant is participating in the supported wage system.

10. Section 94(2) of the Act provides that a person has a continuing inability to work because of an impairment if the person has actively participated in a program of support and the impairment is of itself sufficient to prevent the person from doing any work or undertaking a training activity independently of the program of support within the next two years.

11. Section 7 of the Social Security (Active Participation for Disability Support Pension) Determination 2014 provides that a person has actively participated in a program of support if they have participated in a program for at least 18 months in the three years immediately prior to the date of claim.

    CONSIDERATION OF THE EVIDENCE AND SUBMISSIONS

12. In conducting the Second Tier Review I have had regard to the documents produced to the Tribunal by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents) and to the evidence of the Applicant.

13. The Applicant is 41 years old.  He previously worked as a self-employed painter, performing domestic and commercial work.

14. The Applicant claimed to be suffering from the following:

    ·a left knee condition;

    ·a lower back injury; and

    ·depression.

15. On 1 September 2010 the Applicant injured his left knee while playing soccer.  He was diagnosed with a ruptured ACL and subsequently had surgery in 2011 (knee reconstruction), 2014 (meniscal repair) and 2015 (arthroscopic debridement).  The Applicant described the effect of his left knee condition during the qualification period as chronic arthritic pain and loss of mass in his left leg.  He said that an MRI scan showed the loss of 25% of the hamstring in his left leg.  He said that he has good and bad days but is in constant pain.  The Applicant said he finds squatting painful but he can walk and go shopping without aids, other than using his infant son’s pram as a support.  He said he can drive a car and use public transport, but sometimes he is restricted to less than 30 minutes of driving.

16. The Applicant sustained an injury to his lower back at work on 22 February 2017.  He described the effect of his lower back condition during the qualification period as seriously painful.  The Applicant stated that he had difficulty sleeping and required medication to help him sleep.  He said he could not bend or turn and had periods of painful sciatica which prevented him from driving for more than 10 minutes.

17. The Applicant claims to have suffered depression since about 2010.  He attributes the condition to the circumstances surrounding his mother’s death, his financial difficulties including a seven year period of bankruptcy and the ongoing effects of his knee and back injuries.

18. The Respondent accepts that the Applicant suffers from a left knee injury, complicated by surgery, a lower back condition and depression and that these conditions satisfy s 94(1)(a) of the Act.

19. It is the Respondent’s primary submission that these conditions cannot be considered permanent and an impairment rating cannot be assigned to them because in each case the conditions were not fully diagnosed, fully treated and fully stabilised during the qualification period, as required by s 6(4) of the Impairment Tables.

    Left Knee Condition

20. The medical evidence indicates that the Applicant’s left knee condition was subject to ongoing review and treatment during the qualification period.  The history of the Applicant’s left knee injury includes multiple surgical interventions in 2011, 2014 and 2015.  During the qualification period, Dr Lording, an orthopaedic surgeon, had a further MRI conducted on the Applicant’s left knee. He reported on 8 August 2017 that the MRI showed that his ACL graft was intact, but the Applicant had a meniscal tear and some arthritis and his hamstring compartment showed a retracted semitendinosus but a regenerate gracilis tendon.  Dr Lording’s report[3] indicates that he saw the Applicant with a colleague, Dr Young, and that they each felt that the Applicant would benefit from a release and a tenodesis of his semitendinosus but the Applicant would need time to think about any further surgery.  Dr Lording also indicated that he would require access to the Applicant’s long leg x-rays or his knee x-rays before further decisions could be made about any surgery.

    [3] T46 at p113.

21. On the basis of this evidence, I am satisfied that the Applicant’s left knee condition was not fully treated and fully stabilised during the qualification period.

    Lower Back Condition

22. The Respondent’s Statement of Facts and Contentions sets out at [60]-[66] the medical evidence of the treatment of the Applicant’s lower back conditions over the relevant period.  In particular it notes:

    ·a request for an opinion on further management of the condition by Dr Nekoee to Professor King of 1 August 2017;[4]

    ·the opinion of Professor King of 7 August 2017 that the Applicant needed an MRI of his lumbar spine to ascertain treatment based on anatomical findings;[5]

    ·the diagnosis of Professor O’Sullivan on 10 August 2017, having reviewed an MRI of the Applicant’s lumbar spine;[6] and

    ·the report of Professor King of 5 September 2017 indicating that he had discussed various treatment options with the Applicant.[7]

    [4] T46 at p 111.

    [5] T46 at p 112.

    [6] Attachment 5 to Respondent’s submission.

    [7] T46 at p 117.

23. The Applicant was candid in giving his evidence and did not hesitate to concede that his lower back condition was not fully stabilised and treated during the qualification period.

24. On the basis of the medical evidence highlighted in the Respondent’s submission, and having regard to the admissions of the Applicant, I am satisfied that the Applicant’s lower back condition was not fully stabilised and fully treated during the qualification period.

    Depression

25. The Applicant has medical certificates provided by his treating medical practitioners that indicate he has suffered from depression since 2010 but it was not until 26 July 2018 that the Applicant was first diagnosed by a clinical psychologist, Mr Bryant.  Prior to Mr Bryant’s diagnosis, the medical certificates were provided by either the Applicant’s general practitioner[8] or a Dr Bosanac.[9]  Dr Bosanac’s certificates state that he is a specialist in, inter alia, psychiatry and cognitive behaviour therapy.  At the direction of the Tribunal, the Respondent confirmed that Dr Bosanac is not registered by the Australian Health Practitioner Regulation Agency (AHPRA) as either a psychiatrist or a clinical psychologist.  His registration is as a general medical practitioner.

    [8] See T4, T5, T6, T18, T19, T20 and T21.

    [9] See T22, T23 and T25.

26. The Impairment Tables state at s 6(4)(a) that a condition must be fully diagnosed by an appropriately qualified medical practitioner; being a medical practitioner whose qualifications and practice are relevant to diagnosing a particular condition – s 3.  On the basis of the AHPRA registration, and in the absence of any other evidence, I am not satisfied that Dr Bosanac’s diagnosis meets the requirement of s 6(4).  Mr Bryant’s diagnosis on 26 July 2018 indicates that the Applicant’s mental and physical conditions have deteriorated over the last 6 to 12 months, however, have been present for several years now and are thus stabilised.  Dr Bosanac’s diagnosis of major depressive disorder reactive to medical condition was given in September/October 2013, almost 4 years prior to the qualification period.  Mr Bryant’s diagnosis was almost 12 months after the qualification period and makes no reference to Dr Bosanac’s diagnosis.  I am not satisfied that the diagnosis of Mr Bryant can be said to confirm the diagnosis of Dr Bosanac, such that the Applicant’s condition could be said to have been fully diagnosed by an appropriately qualified medical practitioner during the qualification period.

    CONCLUSION

27. For the reasons set out above I am satisfied that each of the Applicant’s conditions were not fully diagnosed, fully treated and fully stabilised during the qualification period as required by s 6(4) of the Impairment Tables. Accordingly, the conditions cannot be assessed under the Impairment Tables.  Therefore, the Applicant’s claim does not satisfy the requirements of s 94(1) of the Act.

    DECISION

28. The Tribunal affirms the decision under review.

I certify that the preceding 28 (twenty-eight) paragraphs are a true copy of the reasons for the decision herein of Member Richard West

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

Associate

Dated: 14 February 2019

Date of hearing:	3 December 2018
Applicant:	In person
Solicitors for the Respondent:	Department of Human Services Mr Tim de Uray