Michael Berkutow and Secretary, Department of Social Services

[2014] AATA 395

[2014] AATA 395

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/2883
Re	Michael Berkutow
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr Ion Alexander, Member
Date	20 June 2014
Place	Sydney

The decision under review is affirmed.

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

Dr Ion Alexander, Member

CATCHWORDS

SOCIAL SECURITY - disability support pension- physical and psychiatric impairments- permanent conditions - whether the Applicant had an impairment rating of 20 points or more under the impairment tables - whether the Applicant had a "continuing inability to work" - decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth); s 94

Social Security (Administration) Act 1999 (Cth)

SECONDARY MATERIALS

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

REASONS FOR DECISION

Dr Ion Alexander, Member

BACKGROUND

1. On 13 June 2012 Mr Berkutow lodged a claim for Disability Support Pension (DSP) on the basis that he suffered various medical conditions that were having an impact on his ability to function. The conditions included “heart condition, back, shoulder, depression, alcoholism”.

2. Mr Berkutow’s claim was rejected by Centrelink, both initially and on internal review. It was subsequently rejected by the Social Security Appeals Tribunal (SSAT) on the basis that he did not satisfy the requirements of s 94 of the Social Security Act 1991 (the Act), in particular s 94(1)(b), in that he did not have an impairment rating of at least 20 points under the Impairment Tables.

3. In the proceedings before this Tribunal Mr Berkutow seeks review of the decision of the SSAT.

4. At the hearing Mr Berkutow was self- represented but did give oral evidence.

   ISSUES

5. In order to qualify for DSP Mr Berkutow must satisfy the requirements of s 94 of the Act as at the date of the claim or within 13 weeks of lodging the claim (the assessment period) in accordance with the requirements of the Social Security (Administration) Act 1999.  . For the purposes of Mr Berkutow’s claim, the assessment period is calculated as 13 June 2012 to 11 September 2012.

6. It is agreed that Mr Berkutow satisfied s 94(1)(a) of the Act.

7. It is also agreed that Mr Berkutow suffers from ischaemic heart disease which, at the time of his application for DSP,   was  permanent and caused functional impact to a level of 10 points under Impairment Table 1 (Functions Requiring Physical Exertion and Stamina).

8. The respondent submits that during the assessment period Mr Berkutow’s impairment rating was no more than 10 points on the basis that all his other conditions were not permanent within the meaning of the Act and therefore did not satisfy s 94(1)(b). The respondent also submits that even if Mr Berkutow had an impairment rating under the Impairment Tables of at least 20 points he did not have a continuing inability to work as required by s 94(1)(c).

9. Therefore the issues to be decided are whether during the assessment period Mr Berkutow had a rating of 20 points or more under the Impairment Tables and, if so, whether he had a continuing inability to work.

   IMPAIRMENT RATING

10. On 3 July 2012, Mr Berkutow attended a face to face Job Capacity Assessment (JCA) with an assessor whose professional discipline was Exercise Physiology.

11. In a report dated 30 July 2012 the assessor listed several medical conditions including a spinal disorder, alcohol dependence, hypertension, ischaemic heart disease, hypercholesterolaemia and a shoulder and upper arm disorder.

12. The assessor concluded that all the conditions were fully diagnosed but only the condition of ischaemic heart disease was fully treated and stabilised with an impairment rating of 10 points.

13. The assessor noted that Mr Berkutow reported being restricted with heavy physical activities such as repeated bending and heavy lifting and that his pain is aggravated by physical work but that he was able to manage all other day to day activities.

14. Mr Berkutow was observed to remain seated for 45 minutes without noticeable difficulties and to navigate one flight of stairs without difficulty.

15. I note that in respect of his spinal condition Mr Berkutow is said to have reported to the assessor that he had no past or current treatment for this condition.

16. On the 19 September Mr Berkutow attended a face to face JCA conducted by a psychologist and an exercise physiologist.

17. In a report dated 25 September 2012 the assessors listed the same conditions as in the earlier JCA report and expressed essentially the same conclusions.

18. In assessing Mr Berkutow’s work capacity the assessors noted that his shoulder and spinal conditions restrict him from heavy lifting/carrying, repetitive bending and prolonged sitting. Mr Berkutow reported being able to walk at a slow pace and that his standing capacity is not significantly impacted. Mr Berkutow also stated that his spinal condition fluctuates and he may be able to lift a 20 kg can of paint on one day, but another day may have difficulty pushing a chair. Mr Berkutow indicated that he lives alone and is independent with self-care activities and household chores and was observed to walk up and down a flight of stairs and sit for 45 minutes without appreciable difficulty.  

    MR BERKUTOW EVIDENCE

19. In the course of the hearing it became clear that that Mr Berkutow’s spinal condition was the major cause of his claimed functional impairment.

20. Mr Berkutow indicated that he has had problems with his back since about 1974 when he fell off a scaffold. He described a history of intermittent back pain for many years but this did not stop him from working in the building maintenance  industry until about 4 years ago when problems with his back started to affect his ability to work.

21. In 2011 he returned to Sydney to help care for his father who was bedridden.

22. By 2012 he was no longer working and was living with his parents. He claims that he was unable to attend to repairs their house needed and even had the next door neighbour mow the lawn because he was afraid of injuring his back when starting the mower.

23. Mr Berkutow stated that he has not driven a motor vehicle for more than 10 years and uses public transport. He said until a few weeks ago he was restricted to walking for about 100 metres before needing to stop. However, since starting treatment with a new drug, Lyrica, he is now able to walk freely for a least 500 metres.

24. It was not entirely clear during his evidence whether his physical restriction was due to his heart condition or his spinal condition.

25. Mr Berkutow claimed that when shopping he used a trolley to assist with walking but had no problem with bending and putting things into the trolley. He said that he did not like to sit for long periods and felt much more comfortable standing. At home he preferred either to stand or lie down but could sit down for meals for about 20 minutes.

26. Mr Berkutow stated that he has had no difficulty in turning his head from side to side, that he really didn’t have much trouble with his neck and that his lower back was the main problem.

27. In respect of treatment for his lower back symptoms Mr Berkutow was unable to provide a coherent history. He has only been seen by general practitioners and has tried various medications, including opioid patches, with little effect. As noted above the recent treatment with Lyrica, an anticonvulsant drug used to treat neuropathic pain, seems to have given some symptomatic relief. He also stated that he has been treated by numerous chiropractors over the years with no lasting benefit.

28. Mr Berkutow explained that he had injured his left shoulder about three years ago in a fall and that he has seen a specialist who has recommended surgical treatment. 

29. Mr Berkutow conceded that his claimed condition of depression has not been fully diagnosed and he has not seen either a psychiatrist or psychologist or had any specific treatment.

30. Mr Berkutow admits that he has had a long history with alcohol abuse which still continues and although he has had treatment in the past he is not currently on any treatment or involved in any rehabilitation program.

31. In respect of his hypertension Mr Berkutow explained that he is on regular medication and that the condition has little impact on his ability to function.

    MEDICAL EVIDENCE

32. At the hearing the Tribunal was presented with a letter from Dr Jeroschenko, a general practitioner, dated 2 June 2014. In the letter Dr Jeroschenko states that Mr Berkutow has been treated on and off by both herself and Dr Barlow for over 20 years and that she was very familiar with his current and past medical conditions.

33. Dr Jeroschenko goes on to state that Mr Berkutow suffers from severe degenerative disc disease and osteoarthritis of the cervical and lumbar spines, as well as significant spondylolisthesis of L5/S1 which results in sciatica and neuropathic pain.

34. Dr Jeroschenko states that Mr Berkutow’s spinal disorder causes significant disability which has not been managed adequately with medical management and that his chronic pain significantly impairs walking, sitting and standing.

35. Dr Jeroschenko describes inability to stand and or sit for any significant length of time and difficulty “with bending both back and knees”.

36. Attached to Dr  Jeroschenko’s letter was a copy of a single entry in Dr Barlow’s clinical notes which referenced a consultation with Mr Berkutow on the 13 October 2009.

37. Dr Barlow noted  “SEVERE SPONDYLOSIS Cx  +  Lx especially   ?DSP”.

38. There was no other useful information in the note, with no mention of symptoms or treatment and no description of functional impact.

39. In the documentary evidence before the Tribunal there are several x-ray and CT scan reports which confirm that the Mr Berkutow suffers from cervical and lumbar degenerative spinal disease (spondylosis). The conditions were first diagnosed in October 2009 and scans performed June 2012 reveal radiological evidence of disease progression in the lumbar spine.

40. An X-ray of the left shoulder performed in November 2010 revealed early degenerative arthritis and early enthesopathy at the left greater trochanter.

41. Three Centrelink medical reports dated 13 June 2012, 29 August 2012  and 19 December 2012 have been provided by Dr Fajardo who appears to have been Mr Berkutow ‘s general practitioner  the during the assessment period.

42. In each report Dr Fajardo lists ischaemic heart disease, cervical spondylosis and shoulder arthritis/enthesopathy as the conditions which have the most impact on Mr Berkutow’s ability to function. He also lists hypercholesterolaemia and hypertension as medical conditions generally well managed that cause minimal impact on Mr Berkutow‘s ability to function and depression and alcohol abuse as medical conditions with uncertain impact on his  ability to function.

43. In all three reports Dr Fajardo provides no useful information in respect of any functional impact caused by Mr Berkutow’s cervical spondylosis and makes no reference to any condition or impairment involving the lumbar spine. In fact, he makes no mention of the lumbar spine at all.

44. In respect of Mr Berkutow’s shoulder condition Dr Fajardo simply notes “awaiting surgical review”.

45. On 18 April 2012 Mr Berkutow was admitted to Prince of Wales Hospital because of central chest pain. A Discharge Summary notes that Mr Berkutow was discharged on 24 April 2012 following a successful percutaneous coronary intervention (PCI) and stent.

46. I note that the discharge summary lists other diagnoses and problems with no mention of spondylosis.

47. In May 2012 Mr Berkutow re-presented with recurrent symptomatic angina and on 25 May 2012 was readmitted for an elective PCI to all lesions, which was successful with no major complications.

48. Included in the documentary evidence are three reports by Dr Wong, cardiologist, which cover issues relevant to Mr Berkutow’s ischaemic heart disease during the period from May 2012 to November 2012. There is no reference to cervical or lumbar spondylosis in any of these documents

49. In a brief referral note to a Dr Doran dated 21 June 2011 Dr Wong writes that Mr Berkutow “was recently S/B Dr Goldberg and he may need shoulder surgery. Grateful of your opinion +/- Rx”.

    CONSIDERATION

50. The Social Security (Tables for the Assessment of Work Related Impairment for Disability Support Pension) Determination 2011 (the Determination) requires that an impairment rating can only be assigned to an impairment if a condition causing that impairment is permanent.

51. The Determination also provides that a condition is permanent if it has been fully diagnosed, fully treated, fully stabilised and is more likely than not to persist for more than two years.

52. As noted above it is accepted that the condition of ischaemic heart disease is permanent within the meaning of the Act and causes moderate functional impact with a rating of 10 points under Impairment Table 1.

53. For present purposes I accept that the conditions of hypercholesterolaemia and hypertension are also permanent within the meaning of the Act. As both Mr Berkurtow’s own evidence and the available medical evidence indicates that these conditions have minimal or limited functional impact, the correct impairment rating is zero.

54. The medical evidence suggests that the shoulder condition is not fully treated and stabilised and Mr Berkutow does not disagree, therefore, no rating under the Impairment Tables can be assigned.

55. In respect of the conditions of depression and alcohol abuse, Mr Berkutow’s own evidence clearly indicates that during the assessment period these conditions were not fully diagnosed, treated and stabilised and therefore no rating under the Impairment Tables can be assigned.

56. Although the condition of cervical spondylosis is fully diagnosed, the impression given by Mr Berkutow’s evidence is that this condition does not appear to have any significant functional impact. Even if I were to accept that the condition was fully treated and stabilised during the assessment period the correct rating under the Impairment Tables is zero.

57. It follows that in order to be successful in his application for DSP, Mr Berkutow’s condition of lumbar spondylosis requires a rating of at least 10 points under Impairment Table 4. This requires a consideration of whether the condition lumbar spondylosis was fully treated and stabilised during the assessment period.

58. On this point Mr Berkutow’s evidence is somewhat unclear. In his oral evidence he referred to intermittent treatment by various chiropractors but was unable to provide a coherent history with respect to specialist assessment, rehabilitation and exercise programs or pain management.

59. Mr Berkutow did concede that recent treatment with the anticonvulsant medication, Lyrica, resulted in significant functional improvement and this in itself would suggest that his condition has not been not fully treated and stabilised.

60. Dr Jeroschenko in her letter of 2 June 2014 states that Mr Berkutow’s disability “is not managed adequately with medical management” but provides no other information.

61. There is no other documentary evidence before the Tribunal to support the  proposition this his condition had been fully treated and stabilised.

62. Furthermore, even if I were to accept that Mr Berkutow’s lumbar spondylosis was fully treated and stabilised during the assessment period, assignment of a rating under the Impairment Tables remains problematic.

63. I accept that Mr Berkutow’s oral evidence tends to suggest that his lumbar spondylosis has a moderate to severe impact on activities involving spinal function.

64. However, the ‘Introduction’ to Table 4 clearly requires that “Self–report of symptoms alone is insufficient” and that “[t]here must be corroborating evidence of the person’s impairment”.  

65. The difficulty for Mr Berkutow is  that apart from the notation by Dr Jeroschenko in her letter that Mr Berkutow’s  “chronic pain significantly impairs walking, sitting and standing” and that he is “unable to stand and or sit for any significant length of time and has difficulty with bending both back and knees” there is no other satisfactory corroborating evidence.

66. In particular the is no corroborating evidence form Dr Fajardo who appears to have been  Mr Berkutow’s treating GP during the assessment period.

67. There is difficulty with Dr Jeroschenko’s assessment of Mr Berkutow’s functional incapacity because, apart from being very brief, she does not provide any context. It is not clear that she actually saw Mr Berkutow during the assessment period and she does not explain how or when she made the assessment. Also her description of Mr Berkutow’s functional incapacity is somewhat inconsistent with his own evidence. 

68. Therefore, I am satisfied that, during the assessment period, a rating under Impairment Table 4 could not have been assigned in respect of the condition of  lumbar spondylosis

69. This means that during the assessment period Mr Berkutow did not have an impairment of at least 20 points and therefore did not satisfy the requirements of s 94(1)(b) of the Act.

    DECISION

70. For the reasons set out above Mr Berkutow does not satisfy the requirements of s 94 of the Act and does not qualify for DSP.

71. The decision under review is affirmed.

I certify that the preceding 71 (seventy-one) paragraphs are a true copy of the reasons for the decision herein of Dr Ion Alexander, Member.

...........................[SGD].............................................

Associate

Dated 20 June 2014

Date of hearing	3 June 2014
Applicant	In person
Solicitors for the Respondent	Department of Human Services