Milan Hrnjicek and Secretary, Department of Social Services
[2014] AATA 130
[2014] AATA 130
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/3178
Re
Milan Hrnjicek
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Mr Dean Letcher, QC, Senior Member Date 11 March 2014 Place Sydney The decision under review is affirmed.
..................[sgd]......................................................
Mr Dean Letcher, QC, Senior Member
CATCHWORDS
SOCIAL SECURITY – pensions – disability support pension – whether applicant’s impairment is of 20 points or more under the Impairment Tables – whether the applicant had a continuing inability to work – decision affirmed
LEGISLATION
Families, Housing, Community Services and Indigenous Affairs and Other Legislation Amendment (Budget and Other Measures) Act 2011
Social Security Act 1991 s 94, Sch 1B
Social Security (Administration) Act 1999 s 42, Sch 2
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
REASONS FOR DECISION
Mr Dean Letcher, QC, Senior Member
11 March 2014
INTRODUCTION
The applicant submitted a claim form for Disability Support Pension (“DSP”) on 26 July 2011. His claim for DSP was refused on 18 August 2011, refused again on review on 4 November 2011 and again by the Social Security Appeals Tribunal on 13 June 2012. From that last decision he now seeks review by this Tribunal. The applicant had indicated an intention to claim DSP on 11 July 2011 which is the deemed date of claim but nothing turns on the precise date.
The applicant arrived in Australia in 1992 and resided here for over 10 years thus satisfying the 10 years qualifying Australian residence requirement. However, on 5 December 2011 he travelled to his native Serbia and has remained there ever since. There is no evidence of any intention to return to Australia. The applicant gave evidence by telephone from Belgrade using an interpreter and he was ably represented by a non-lawyer Mrs Alexandrova in Sydney.
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 Impairment Tables found in Schedule 1B of the Act (“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 25 October 2011 (“the relevant period”): s 42 and Sch 2 of the Social Security (Administration) Act 1999. 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 Schedule 1B 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 25 October 2011 are irrelevant to these proceedings and cannot be considered by the Tribunal.
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.
FACTUAL BACKGROUND
The application for DSP relied on medical reports of Dr Todorovic of 11 July and 18 July 2011 which supported conditions of Lower Back Pain and Adjustment Disorder plus Fractured Left Little Toe. The applicant underwent a Job Capacity Assessment (“JCA”) which on 15 August 2011 found:
(a)Spinal Disorder (chronic lower back pain secondary to osteoarthritis of the lumbar spine; lumbar scoliosis) fully diagnosed but not fully treated or stabilised. Therefore, not permanent within the meaning of the Act.
(b)Adjustment Disorder – fully diagnosed but significant functional improvement was expected and further treatments were to be considered. Therefore, not permanent within the meaning of the Act.
(c)The toe fracture was considered to be only a temporary condition.
(d)It was believed that with counselling and treatment the applicant would be able to work for 30 or more hours a week within two years. The JCA recommended referral for assistance and support towards seeking employment.
Dr Todorovic’s report of 18 July 2011 noted that the applicant had been referred to a psychiatrist and prescribed anti-depressants, he had X-ray examinations and put on a waiting list for physiotherapy. He himself obtained massage, “acupressure” and natural treatments after advice from his doctors. However, on 5 December 2011 he left Australia and has not returned. The applicant said that his back condition had started to trouble him about 2009, it was diagnosed then and he had started treatment while working with difficulty. He said that his back condition had worsened since his return to Serbia. He had tried sedatives for his psychological problems but had stomach side-effects and was now trying only “natural products”. He said he had three reasons for returning to Serbia:
(a)He could not obtain proper treatment in Australia. There were lengthy delays in obtaining physiotherapy, but in Serbia it was free and available.
(b)In Australia he was completely on his own without domestic help but now he had a cousin to help him.
(c)Family assistance is very limited in Australia but in Serbia relatives help each other.
The applicant said he had no intention of returning to Australia where he had no domestic assistance and had not been able to obtain timely treatment which now was provided free in Serbia.
Since his return to Serbia his back has been treated with physiotherapy and acupuncture. He said he had been unable to work since 2011 and would be unable to work as a teacher or in any other role for three hours a day or at all because of the pain and restriction. Now he can do nothing – he cannot concentrate, he needs to lie down for long periods and he could not do even the lightest of work.
The applicant obtained a number of specialist doctors’ reports in Belgrade and the Tribunal had the benefit of translated copies. Of course, for the purposes of the DSP application, the applicant’s impairment and inability to work are required to be assessed as at the date of application or within 13 weeks thereafter, that is, the period 26 July 2011 to 25 October 2011. Medical opinions and examinations before or after that period are relevant only insofar as they throw light on his medical condition during that period: Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252 per Gyles J.
The respondent obtained two further JCAs based upon a review of these recent and the earlier reports, but without a further physical examination. The fractured little toe and the anxiety disorder were conditions found to be of no great functional significance but it is the back condition which was the focus of attention. Both JCAs (dated 28 June 2013 and 20 November 2013) were prepared by a main Assessor Ms F, an occupational therapist, who found the Spinal Disorder to be fully treated and stabilised. The last JCA, 20 November 2013, was prepared with the benefit of a report of Dr Vojinovic, senior medical practitioner and orthopaedic specialist of Belgrade. Curiously, there were two translations of the report and the translations are slightly different but the differences are not material.
The relevant portion of the 20 November 2013 JCA reads:
LOWER BACK PAIN: This impairment was rated under table 20 (chronic pain) as Mr Hrnjicek has full range of movement in his lower back as demonstrated by a Specialist report dated 22/01/13 and is therefore unable to be rated under the condition specific table of 5.2.
On that basis the applicant received 10 points from Table 20 which deals with Miscellaneous Conditions.
Relevantly, it reads:
TENMild to moderate symptoms which are irritating or unpleasant but which rarely prevent completion of any activity. Symptoms may cause loss of efficiency in daily activities but minimal interference performing or persisting with work-related tasks. There is minimal effect/impact on work attendance.
Table 5.2 relevantly says:
TWENTYLoss of half of normal range of movement as well as back pain or referred pain:
with most physical activities and
with standing for about 15 minutes and
with sitting or driving for about 30 minutes.
or
Loss of three-quarters of normal range of movement.
If he had been assessed as having restriction of movement in his lower spine he would have been assessed on Table 5.2 and might have received 20 points. The significance of that is that this could have qualified him for a DSP (if he met the CITW test).
The critical passage in the specialist’s January 2013 report reads:
Translation 1:
OBJECTIVE FINDING: On an attempt to bend forward in a standing position the patient experiences pain in his lumbo-sacral spine, and on abduction of his left shoulder, which is slightly swollen and painfully tender on palpation. The pain in the shoulder appears and maximal abduction cannot be achieved in the last 20 degrees. [Supplementary T-documents, p.137]
Translation 2:
OBJECTIVE FINDINGS: When trying to make a touch-toe in the standing position, the patient feels pain in the LS spine, while upon the abduction of the left shoulder that is mildly swollen and painful on palpation, a pain occurs in the shoulder and the ultimate abduction is not possible for the last 20 degrees. [Supplementary T-documents, p.138]
I requested, and the respondent arranged for, Ms F to be available by telephone for questions during the hearing. I asked her: “Why do you say that the doctor’s report demonstrates a full range of movement in his lower back?” Her reply was words to the effect: “He doesn’t say that he couldn’t touch his toes. The doctor did not note any restriction of movement in the lower spine and if he had he would have detailed it. In the same paragraph he comments about a 20 degree restriction in the shoulder so if he had seen restriction of movement in the spine he would have said so. If he could touch his toes that would be 90 degrees or a full range of movement. If he could only touch his knees that would mean he has lost a quarter or half of his range depending on which part of his knees he could touch.”
I found this to be a very confident assertion as to what a foreign specialist would put in his report, especially when the specialist was unlikely to be aware of the significance of those details for a claim under Australian law. Ms Alexandrova submitted that European doctors habitually do not detail degrees of loss of movement and the doctor’s report should be read to indicate pain restricting movement. That submission (not supported by any direct evidence) lost some force when the very same sentence concludes with an observation that the shoulder is restricted by the last 20 degrees of abduction.
DISCUSSION
I must give due weight to the fact that there is a quantified description of restriction in the shoulder but no mention of restriction in the lumbo-sacral spine. This is not an artifact of translation; the two versions are essentially identical in this respect. The fact that pain occurred “when trying” or “on an attempt” to touch his toes does not necessarily indicate that the attempt was unsuccessful. True, the report does not say “when touching his toes pain was noticed ...” nor “pain did not cause restriction of movement” but it does not actually note any restriction at all. I would incline to the view that it would be highly unusual for such pain not to cause restriction of movement but I cannot be satisfied of that on the balance of probabilities. In any event, I cannot be satisfied on the balance of probabilities that during the relevant period in 2011 there was ¼ or ½ or any significant proportion of restriction of the lumbar spine which would bring Table 5.2 into play. Dr Vojinovic was not called to give oral evidence. In any event, his evidence might have been as to his observations in 2013 rather than an opinion about the condition during the relevant period and the applicant had said that his back condition had become worse since his return to Serbia.
Ms Alexandrova referred to the difficulty and delay in obtaining relevant specialist opinion that addressed the real issues in dispute from overseas. It is doubly unfortunate that it has taken 2½ years to have the case ready for hearing in this Tribunal: firstly, because the applicant says that treatments required to have his condition fully diagnosed and treated were not available promptly in Australia but secondly, because when the applicant left Australia on 5 December 2011 and formed an intention to reside in Serbia he lost the right to a DSP as soon as he was no longer deemed to be a resident of Australia, that is, on or soon after 6 December 2011.
On 1 July 2011, s 94(1)(ea) was inserted in the Social Security Act 1991 to provide that persons otherwise eligible must remain Australian residents to remain qualified to receive DSP. That requirement has very narrow exceptions, such as for people with terminal health conditions (ss 1218AA or 1218AAA). The new provision was inserted by the Families, Housing, Community Services and Indigenous Affairs and Other Legislation Amendment (Budget and Other Measures) Act 2011. This means that (although I am not required to and I do not make any formal finding) the applicant’s rights under review a may be limited in practical terms to the period from the date of application in July 2011 to some time after 5 December 2011. The respondent would be likely to take the view that the applicant has ceased to be an Australian resident.
CONCLUSIONS
I find that the applicant has not established that he has conditions which attract ratings points of 20 or more that would entitle him to the grant of a DSP. He has not established that he has a Continuing Inability to Work within the meaning of the Act. I was initially concerned that the JCAs had adopted an unduly demanding test of whether there was a restriction of movement of the lumbo-sacral spine and that there should have been further inquiry as to whether the applicant’s examinations had in fact shown such restriction although not clearly stated in the specialist doctor’s report. The applicant’s evidence that his condition had worsened since December 2011 and the terms of the doctor’s report have militated against such concern.
The decision under review is affirmed.
I certify that the preceding 28 (twenty-eight) paragraphs are a true copy of the reasons for the decision herein of Mr Dean Letcher, QC, Senior Member .................[sgd].......................................................
Associate
Dated 11 March 2014
Date of hearing 26 November 2013 Date final submissions received 10 December 2013 Advocate for the Applicant Ms R Alexandrova Advocate for the Respondent Ms B Silaji, Legal Division, Department of Human Services
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