Miodrag Strbac and Secretary, Department of Social Services
[2014] AATA 845
•11 November 2014
[2014] AATA 845
| Division | GENERAL ADMINISTRATIVE DIVISION |
| File Number(s) | 2013/6315 |
| Re | Miodrag Strbac |
| APPLICANT | |
| And | Secretary, Department of Social Services |
| RESPONDENT |
DECISION
| Tribunal | Senior Member J F Toohey |
| Date | 11 November 2014 |
| Place | Sydney |
The Tribunal affirms the decision under review
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Senior Member J F Toohey
CATCHWORDS
SOCIAL SECURITY – disability support pension – back condition fully diagnosed treated and stabilised – 10 points – applicant to undergo surgery on shoulder – diagnosed but not fully treated and stabilised – depression diagnosed but not fully treated and stabilised – other conditions not fully treated and stabilised – decision under review affirmed
LEGISLATION
Social Security Act 1991 s 94
Social Security (Administration) Act 1999 s 42 and Sch 2
SECONDARY MATERIAL
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Senior Member J F Toohey
BACKGROUND
Background
On 3 July 2013, Mr Miodrag Strbac applied for a Disability Support Pension (DSP). He listed his disabilities as: back, shoulders, knees, neck, stomach, depression. His general practitioner, Dr Jim Kafiris, provided a medical report in support of his claim.
Mr Strbac injured his back and shoulder at work in June 2010. There are extensive documents, including medical reports, concerning his claim for compensation. Most of them pre-date his claim for DSP but some contain medical information relevant to his claim.
To qualify for DSP, Mr Strbac had to satisfy the criteria in s 94 of the Social Security Act 1991 (the Act). In summary, he had to have:
a.a physical, intellectual or psychiatric impairment, or impairments, which rated at 20 or more points according to the Impairment Tables in the Act; and
b.a continuing inability to work as defined in the Act.
Mr Strbac had to satisfy these criteria on the date he applied for DSP, or within 13 weeks, that is by 25 September 2013: s 42 and Sch 2 of the Social Security (Administration) Act 1999. I will refer to this period as the relevant period.
The Impairment Tables
The Impairment Tables are used to assess the effect of an impairment on a person’s functional capacity. They are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Determination).
A rating can only be given to an impairment rating if the condition causing it is permanent: cl 6(3)(a).
Permanent means that a condition is fully diagnosed by an appropriately qualified medical practitioner, and has been fully treated and fully stabilised, and it is more likely than not to persist for more than two years: cl 6(4).
When deciding whether a condition has been fully diagnosed and fully treated, the following must be considered: whether there is corroborating evidence of the condition; what treatment or rehabilitation the person has had for the condition; and whether treatment is continuing or is planned in the next two years: cl 6(5).
Fully stabilised means either:
a.the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
b.the person has not undertaken reasonable treatment for the condition and:
i.significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
ii.there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Reasonable treatment means treatment that is available at a location reasonably accessible to the person, is at a reasonable cost, can reliably be expected to result in a substantial improvement in functional capacity, is regularly undertaken or performed, has a high success rate, and carries a low risk to the person: cl 6(7).
Summary of decision
For the reasons that follow, I find in relation to each of Mr Strbac’s conditions during the relevant period that:
a.his lower back condition was fully diagnosed, fully treated and fully stabilised, and rates 10 points on the Impairment Tables;
b.his shoulder condition was fully diagnosed but not fully treated and fully stabilised, and so cannot be given a rating on the Impairment Tables;
c.his depression was fully diagnosed but not fully treated and fully stabilised, and so cannot be given a rating on the Impairment Tables;
d.his knee and stomach conditions may have been fully diagnosed but were not fully treated and stabilised and so cannot be given ratings on the Impairment Tables;
e.his neck condition was not fully diagnosed and so cannot be given a rating on the Impairment Tables.
Because Mr Strbac’s conditions did not rate 20 or more points on the Impairment Tables, he could not qualify for DSP during the relevant period. It is not necessary to decide whether he also had a continuing inability to work.
Back
X-rays and an MRI of Mr Strbac’s lumbar spine in June 2010 showed multi-level degenerative changes and possible bilateral L5 and S1 nerve root impingement, and a small annular tear of the L5/S1 disc. Dr Kafiris recommends he undergo surgery. Mr Strbac does not wish to undergo surgery because he has been advised that its prospects of success are limited.
Dr Christopher Minogue, a medical adviser at the Health Professional Advisory Unit of Centrelink provided an opinion in August 2014 about Mr Strbac’s conditions. He reviewed all of the documents and provided a detailed report. In his opinion, the available medical evidence “is not convincing that lumbar spine surgery would be beneficial in this case”. Accordingly, he said, it was reasonable for this condition to be considered fully diagnosed treated and stabilised.
The Secretary does not dispute Dr Minogue’s opinion and accepts that this condition was fully diagnosed, fully treated and fully stabilised during the relevant period. It therefore can be given a rating on the Impairment Tables.
Dr Minogue rated Mr Strbac’s back 10 points under Table 1 (Functions requiring Physical Exertion and Stamina). He considered Table 1 “the most appropriate to acknowledge the customer’s persistent pain disorder while not disregarding the possibility of a substantial subjective component” because “pain appears to be the customer’s main reported problem, with objectification of loss of function considered difficult on the available medical evidence”.
The Secretary submits, and I agree, that Mr Strbac’s back should be rated according to Table 4 (Spinal Function). The Secretary’s detailed submissions on this point are set out at paragraphs [47] to [58] of the Secretary’s Statement of Facts and Contentions which were provided to Mr Strbac and the Tribunal before the hearing. I will not repeat them here. In my view those paragraphs accurately state the instructions in the Impairment Determination to the effect that chronic pain should be assessed by reference to the area of function it affects.
The Secretary submits that Mr Strbac’s back condition should be rated five points on Table 4. Five points are assigned for conditions assessed as having a “mild functional impact on activities involving spinal function”. In particular:
The person has some difficulty in:
a.activities over head height (e.g. activities requiring the person to look upwards); or
b.bending to knee level and straightening up again without difficulty; or
c.turning their trunk or moving their head (e.g. to look to the sides or upwards).
In my opinion, Mr Strbac’s back condition is more appropriately rated 10 points because it has a “moderate” functional impact on activities involving his spinal function. Ten points are assigned where:
The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:
a.the person is unable to sustain overhead activities (e.g. accessing items over head height); or
b.the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or
c.the person is unable to bend forward to pick up a light object placed at knee height; or
d.the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).
In support of this conclusion is a report dated 15 March 2012 from Dr Sam Perla, an injury management consultant who reviewed Mr Strbac and prepared a report for the purposes of his workers compensation claim. In relation to his back, Dr Perla noted that Mr Strbac’s range of movement was “markedly reduced today in that he was only able to flex, extend, rotate and side bend to perhaps some 10-20 degrees with normal flexion being 90 degrees, normal extension 30 degrees, rotation to right and left 30 degrees”. Dr Perla’s report predates Mr Strbac’s application for DSP by more than 12 months but subsequent reports, including a recent report from Dr Kafiris which Mr Strbac handed up at the hearing, indicate no improvement and possibly a worsening of his symptoms over time.
From observing Mr Strbac during the hearing, I am satisfied that he has genuine difficulty moving his head to look in all directions. He says, and I accept, that he is also unable to sustain overhead activities but it is not clear whether that is because of his back condition or his shoulder condition.
I should add that I do not find Mr Strbac’s back condition to be severe according to Table 4. A condition must be severe in order to be given a rating of 20 points. It cannot be said that Mr Strbac is unable to perform any overhead activities; or turn his head, or bend his neck, without moving his trunk; or bend forward to pick up a light object from a desk or table; or remain seated for at least 10 minutes (which are the criteria necessary for a rating of severe). The evidence does not suggest, and Mr Strbac does not claim, to meet the first three criteria, and he was able to sit, although with some difficulty, for approximately 40 minutes throughout the hearing.
Shoulders
Mr Strbac suffers from an injury to his right shoulder which appears now to be affecting his left shoulder as well. In his report, Dr Minogue summarised reports including from orthopaedic surgeon Associate Professor John Ireland who noted in a letter dated 18 January 2013 that an MRI scan had found ”an extensive labral tear” in the right shoulder suggestive of impingement. Associate Professor Ireland recommended an arthroscopic assessment be performed. Dr Kafiris also recommends surgery.
As noted in a number of medical reports, including from Dr Kafiris, Mr Strbac has expressed reluctance to undergo surgery on his shoulder because he is fearful of surgery and the outcome cannot be guaranteed. However, he now says he is willing to undergo surgery on his shoulder because his doctors say they can fix the problem. He told the Tribunal he will have the surgery recommended by Dr Kafiris, he is just not sure when it will happen.
As Mr Strbac’s right shoulder is still to be treated, with prospects for improvement, this condition cannot be considered permanent and cannot be given a rating on the Impairment Tables.
It is not clear from the information before the Tribunal what is causing the pain in Mr Strbac’s left shoulder. I find this condition is not fully diagnosed, meaning it cannot be given a rating on the Impairment Tables.
Depression
In a report dated 7 December 2010, a psychologist at the Commonwealth Rehabilitation Service where Mr Strbac was undergoing rehabilitation following his work injury, reported that his doctor at the time had observed “significantly decreased physical activity and depressive symptoms.” She recorded that Mr Strbac had “agreed to review with a Psychologist for assistance with pain management and overcoming fear avoidance behaviours to assist with recovery”. She noted that he had attended one session with the psychologist Ms Hannan, and had started treatment with psychologist Ms Jelena Cuk at his request. Between December 2010 and early 2011, he saw Ms Cuk fortnightly.
A Vocational Assessment Report dated 13 December 2010, also prepared by a psychologist for the purposes of Mr Strbac’s workers compensation claim, states that a Depression Anxiety Stress Scales was administered to Mr Strbac. His scores indicated that “he is in the extremely severe range for depression and stress, and the severe range for anxiety. For depression and stress he scored above the 98th percentile, for anxiety he scored at approximately the 96th percentile.” Given these symptoms, the psychologist said, he “continues to need psychological support and assistance to adjust to his disability”.
Mr Strbac told the Tribunal that he saw Dr Milorad Sokolovic, psychiatrist, several times in 2011. He saw Dr Sokolovic again around January or February 2013 and again about six months later. He last saw him in about June or July 2014. He prescribed Zoloft. Mr Strbac then saw a doctor at a pain management clinic who prescribed medication but it had an adverse effect and he had stopped taking it. He is now under the care of Dr Kafiris and takes Avanza. He is not having any other form of treatment. He would like to see Dr Sokolovic again but he cannot afford the cost.
Dr Kafiris reported in June 2013 that Mr Strbac was suffering from secondary depression (that is, secondary to his physical conditions) which was “being managed by a psychiatrist”. It is not clear what Dr Kafiris means by this as, by Mr Strbac’s evidence, he was not under the ongoing management of a psychiatrist around that time. Nor is there evidence that he was under the ongoing management of a psychiatrist during the relevant period.
The Secretary accepts, and I agree, that this condition is fully diagnosed. However, I am not satisfied that it was fully treated and fully stabilised during the relevant period. Reports dating from 2010 indicate that treatment under a psychologist or psychiatrist is important if Mr Strbac’s depression is to improve. However, he does not appear to have undergone consistent treatment for his depression for any length of time, and had not done so during the relevant period.
If suitable treatment for his depression is not available at a cost that is reasonable for Mr Strbac, it may be that his condition could be considered fully treated and stabilised at some point; certainly it appears to be long-standing and severe. However, I am not satisfied that it was fully treated and stabilised during the relevant period, meaning it cannot be give a rating on the Impairment Tables.
Knee, neck and stomach
In his report in support of Mr Strbac’s claim for DSP, Dr Kafiris provided information about his back, right shoulder and depression but not about his knees, stomach or neck, and they do not appear to have been considered in any detail as part of his claim. As discussed below, Mr Strbac is still undergoing treatment for these conditions, meaning they cannot be given impairment ratings.
According to one report, an MRI on 4 October 2012 showed “ligament and meniscus abnormalities, and Grade 1 chondromalacia patellae”. Mr Strbac told the Tribunal that he has sore knees; he is not sure what causes the soreness; Dr Kafiris says he needs a small procedure which should improve the condition but no arrangements have yet been made for it to be done.
It is not clear whether Mr Strbac’s knee condition was fully diagnosed during the relevant period but I will accept for the purposes of this decision that it was. However, it appears that he is still to undergo surgery to improve the condition and he is hopeful that it will improve. As this condition was not fully treated and fully stabilised during the relevant period it cannot be given a rating on the Impairment Tables.
Mr Strbac underwent a gastroscopy and colonoscopy in November 2012 the results of which were “largely normal”. He told the Tribunal he takes some medication and is to have a further colonoscopy; he has had a range of tests recently but does not yet know the results. He is not sure what is causing his neck pain. He cannot recall whether he has had x-rays and does not know whether it is part of his shoulder condition or something in his neck itself. There is no information in any of the reports to indicate what is causing this pain. On this basis, I find that neither condition was fully diagnosed during the relevant period, meaning that neither can be given a rating on the Impairment Tables.
Conclusion
For these reasons I affirm the decision under review.
| 1. I certify that the preceding 37 (thirty-seven) paragraphs are a true copy of the reasons for the decision herein of Ms J Toohey, Senior Member. |
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Associate
Dated 11 November 2014
| Date(s) of hearing | 24 October 2014 |
| Representative for the Applicant | Self-represented |
| Representative for the Respondent | Ms Phyllis Lee, Solicitor |
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