Mohammed Kuloba and Secretary, Department of Social Services
[2014] AATA 605
[2014] AATA 605
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/5837
Re
Mohammed Kuloba
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Mr C Ermert, Member
Date 27 August 2014 Place Melbourne The Tribunal affirms the decision under review.
.........................[sgd]...............................................
Mr C Ermert, Member
SOCIAL SECURITY – disability support pension – disabilities – Impairment Tables – diagnoses – corroborating evidence – fully diagnosed – fully treated – fully stabilised – decision affirmed
LEGISLATION
Social Security Act 1991, section 94
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Guidelines to the Tables for the Assessment of Work-related Impairment for Disability Support Pension)
REASONS FOR DECISION
Mr C Ermert, Member
27 August 2014
INTRODUCTION
On 9 May 2013 Mr Kuloba, the Applicant, lodged a claim for disability support pension (DSP) with Centrelink, the service provider for the Department of Social Services, the Respondent. On 8 August 2013 a Centrelink officer refused the DSP claim on the grounds that Mr Kuloba did not satisfy the medical requirements as required by the provisions of the relevant legislation (the original decision).
On 6 September 2013 a Centrelink Authorised Review Officer (ARO) affirmed the original decision. The Social Security Appeals Tribunal (SSAT) subsequently affirmed the ARO’s decision on 18 October 2013. This matter is an application for review of the SSAT’s decision.
THE HEARING
The hearing commenced on 17 July 2014. After hearing evidence from the Applicant, I adjourned the hearing to allow time for Mr Kuloba to submit an additional medical report and for the Respondent to consider the medical report. The hearing reconvened on 7 August 2014 for submissions.
Mr Kuloba represented himself at the hearing and gave his evidence by telephone. Mr Noonan, a departmental lawyer, represented the Respondent, also via the telephone.
I had before me the documents provided by the Respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents) and Supplementary T-documents (ST1 to ST5). For Mr Kuloba I took into evidence the following:
(a)Exhibit A1 – a report by Dr David Freilich, neurologist, dated 12 October 2012,
(b)Exhibit A2 – a report by Mr Audi Widjaja, orthopaedic surgeon, dated 24 May 2014 with the following attachments:
(i)Report by Dr Minh Mai, Millennium Medical Centre, dated 14 July 2009;
(ii)Report by Leanne Graham, hand and occupational therapist, dated 27 July 2012;
(iii)Radiology reports by Dr Mandakini Siwach, dated 3 October 2012;
(iv)Report by Dr Susan Kouloyan-Ilic, dated 29 October 2012;
(v)Report by Dr Simon Morley, dated 29 October 2012; and
(vi)Report by Dr Morry Silberstein, dated 31 October 2012.
(c)Exhibit A3 – a report by Dr Bronwyn Wells, Mr Kuloba’s general practitioner, dated 30 January 2014;
(d)Exhibit A4 – a report by Dr Wells, dated 20 March 2014; and
(e)Exhibit A5 – a further report by Dr Wells dated 16 July 2014 including the attached report from Epping Diagnostic Imaging, MRI and PET Centre dated 9 November 2103.
For the Respondent I took in the:
(a)Statement of Facts and Contentions dated 25 June 2014 (SF&C); and
(b)the Secretary’s Submissions dated 28 July 2014.
LEGISLATION
The relevant legislation is contained in the:
(a)Social Security Act 1991 (the Act);
(b)Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables); and
(c)Guidelines to the Tables for the Assessment of Work-related Impairment for Disability Support Pension) (the Guidelines).
THE ISSUES
Section 94(1) of the Act provides relevantly that 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 …
In this case, there is no dispute that Mr Kuloba has a number of physical impairments thus satisfying s 94(1)(a) of the Act. The first issue I must decide is whether Mr Kuloba’s impairments attract an impairment rating of 20 points or more under the Impairment Tables pursuant to section 94(1)(b) of the Act. If so, I must decide whether Mr Kuloba has a continuing inability to work pursuant to s 94(1)(c) of the Act.
Consideration of Impairments
Mr Kuloba gave evidence of his pain and suffering from problems with his arm, back, head, neck and right shoulder and headaches.
The documentary evidence records the following impairments:
(a)L4/5 and L5/S1 disc prolapse;
(b)C3/4 disc protrusion with right nerve root impingement;
(c)Right acromial spur and partial tear of right supraspinatus;
(d)Hypertension;
(e)Low vision; and
(f)Recurrent head/facial pain and headaches.
It is not in dispute that Mr Kuloba has the above physical impairments.
Rules for Applying the Impairment Tables
The Impairment Tables provide rules for assigning an impairment rating to each of Mr Kuloba’s conditions. The rules include:
·An impairment rating can only be assigned if the condition causing the impairment is permanent and the impairment is more likely than not to persist for more than two years.
·For a condition to be permanent it must be fully diagnosed, fully treated and fully stabilised.
I will consider each of Mr Kuloba’s conditions in turn.
L4 and L5/S1 Disc Prolapse
This condition has been diagnosed by Mr Kuloba’s general practitioner, Dr Wells.
During the hearing, Mr Noonan referred to Dr Wells’ report of 30 January 2014 in which Dr Wells had responded to Question 6 by stating that Mr Kuloba was still waiting for outpatient assessment at the local public hospital. Mr Noonan contended that this statement indicated that Mr Kuloba’s condition was not fully treated and stabilised. In response, Mr Kuloba said that that particular section of Dr Wells’ report related only to his neck and shoulder problems.
I note that later in her report, Dr Wells reported that Mr Kuloba had a mild functional impairment under Table 4: Spinal Function of the Impairment Tables. In considering this report, I find it reasonable to assume that Dr Wells understands the provisions regarding the use of the Impairment Tables. Accordingly, I find it reasonable to accept that Dr Wells assessed the condition as permanent. I am not satisfied that Dr Wells was referring to Mr Kuloba’s L4 and L5/S1 disc prolapse condition in stating he was still waiting for further assessment.
On 5 June 2013 a Job Capacity Assessor (JCA) assessed Mr Kuloba’s condition as being fully diagnosed, fully treated and fully stabilised. I accept this assessment and find accordingly. This finding allows for the determination of a rating from the Impairment Tables for this condition.
Mr Kuloba testified that he had difficulty with all the activities listed in the sections of Table 4 assigned five, 10 and 20 points. However, The Introduction to Table 4 provides relevantly:
…
·The diagnosis must be made by an appropriately qualified medical practitioner.
·Self-report of symptoms alone is insufficient.
·There must be corroborating evidence of the person’s impairment.
…
The JCA assigned five points to Mr Kuloba’s back condition. Dr Wells found that there is a mild functional impairment under Table 4. Dr Wells’ finding translates to an impairment rating of five impairment points under Table 4.
Both Dr Wells and the JCA corroborated Mr Kuloba’s evidence of his symptoms to the extent that the level of impairment related to five points under the Impairment Tables. I am satisfied that Mr Kuloba’s impairment from his L4/5 and L5/S1 disc prolapse attracts five points and I find accordingly.
C3/4 Disc Protrusion with right C4 Nerve Root Impingement
Mr Kuloba gave evidence that he had constant neck pain since 2009. He said the pain was worse in cold weather.
In Dr Wells’ report dated 16 July 2014, she reported that:
[t]his may be the cause of his pain in his right shoulder and elbow. Mohamed is awaiting neurosurgical review for this to see whether it is a condition that is treatable with surgery.
In his report dated 3 October 2013, Dr Mandakini Siwach reported a negative CT scan.
On 24 May 2014 Dr Audi Widjaja, reported that he was referring Mr Kuloba to a neurosurgeon for a review.
I accept the reports of Dr Wells and Dr Widjaja and find that this condition is not fully diagnosed, treated and stabilised. As a result, the condition is not permanent and cannot be assigned an impairment rating from the Impairment Tables.
Right Acromial Spur and Partial Tear of the Right Supraspinatus
This condition was diagnosed by Dr Wells in her report dated 8 May 2013. In that report, Dr Wells recorded that Mr Kuloba was:
waiting for outpatient appointment at Western Hospital.
Mr Kuloba testified that he had to wait too long for an appointment and so he went to Dr Widjaja at his own expense.
In his report dated 24 May 2014, Dr Widjaja confirmed the diagnosis. He reported that:
[t]his will need physiotherapy. Surgical intervention is not indicated at the moment but may need surgical repair in the future if the tear becomes full thickness.
Dr Widjaja recommended that Mr Kuloba be referred to a neurosurgeon and reviewed in three months.
In her report of 30 January 2014, Dr Wells reported that the condition was not fully diagnosed and treated as Mohamed has not had adequate access to specialist review.
From the medical evidence I find that the condition was not fully treated and stabilised at the date of the claim. As a result, this condition cannot be assigned a rating from the Impairment Tables.
Hypertension
Dr Wells and the JCA accept this condition as permanent. I accept this assessment and find accordingly. This finding allows the determination of a rating from the Impairment Tables. Table 1: Functions Requiring Physical Exertion and Stamina of the Impairment Tables is the table relevant to this condition.
In her report of 8 May 2013, Dr Wells reported the condition as one that is:
... generally well managed and that cause(s) minimal or limited impact on ability to function.
In her report dated 30 January 2014, Dr Wells reported that Mr Kuloba had a mild functional impairment under Table 1.
The JCA assessed the condition as having no functional impact under Table 1 and assigned no impairment rating to this condition.
In finding a mild functional impact, Table 1 of the Impairment Tables provides that the person:
experiences occasional symptoms … when performing physically demanding activities or that he has occasional difficulty walking …to local facilities …or…performing physically active tasks.
I have no evidence from Mr Kuloba that he has a mild functional impact as detailed in Table 1. Mr Kuloba’s evidence was that the condition does not stop him from working. I accept Dr Wells’ first assessment that the condition causes minimal or limited impact on Mr Kuloba’s ability to function. I also accept the JCA’s assessment that the condition had no functional impact. Therefore, I find that the condition attracts a zero impairment points under the Impairment Tables.
Low Vision
Table 12: Visual Function is the table relevant to this condition. The Introduction to Table 12 states that:
…
[t]he diagnosis of the condition must be made by an appropriately qualified medical practitioner with supporting evidence from an ophthalmologist.
…
Dr Wells referred Mr Kuloba to an optometrist to investigate whether spectacles were necessary. However, there is no supporting evidence from an ophthalmologist.
Mr Kuloba gave evidence that he is not claiming a functional impairment in regard to his eyes. He said that they are not a working problem.
I find that an impairment rating cannot be assigned to this condition.
Recurrent Head/facial Pain and Headaches
In her report of 17 July 2014, Dr Wells stated that Mr Kuloba gets headaches and facial pain for which he needs to take medication. She regards the condition as stabilised. In his report dated 14 July 2009, Dr Mai noted constant headaches. The JCA concluded that migraine headaches were temporary.
On the evidence of Dr Wells, I accept that this condition is permanent and a rating of impairment could be applied.
Mr Kuloba gave evidence that he has had two operations to his head. He said the first operation in 1999 was not successful and he had a second operation in 2001. He said he gets constant headaches, with pain going from his eyes to the side and back of his head. Mr Kuloba said he has headaches, sometimes nearly every day. He said that without medication the headaches last for about two hours. If he takes medication they last for about one hour. Mr Kuloba stated that when he has no headache he feels well and is able to perform his daily living tasks.
Mr Noonan submitted that there is no corroboration of Mr Kuloba’s evidence, particularly as it applies to the period in question. He submitted further that if Mr Kuloba’s evidence were accepted his impairment should be assessed at zero impairment points as he is able to perform most aspects of his daily living.
For this condition the relevant table is Table 15: Functions of Consciousness of the Impairment Tables. The Introduction to Table 15 includes:
…
·Self-report of symptoms alone is insufficient.
·There must be corroborating evidence of the person’s impairment.
…
I asked if Mr Kuloba had any evidence which might corroborate his description of his symptoms. He answered that Dr Wells had told him to see other doctors but he cannot afford the costs involved. Without some corroborating evidence of the functional effects of this condition I am not able to assign an impairment rating.
Total Impairment Rating
From my findings I assign the following impairment ratings for Mr Kuloba’s conditions:
·L4/5 and L5/S1 disc prolapse – five points.
·C3/C4 disc protrusion with right nerve root impingement – not able to be assessed.
·Right acromial spur and Partial tear of right supraspinatus – not able to be assessed.
·Hypertension – zero points.
·Low vision – zero points.
·Recurrent head/facial pain and headaches – not able to be assessed.
I find that, at the date of his claim for DSP, Mr Kuloba’s impairments attracted a total of five impairment points under the Impairment Tables.
TRIBUNAL DELIBERATIONS
Subsection 94(1)(b) of the Act requires a person to have impairments attracting 20 or more points under the Impairment Tables. Mr Kuloba’s impairments attract only five points at the date of his claim and therefore he does not satisfy subsection 94(1)(b) of the Act. As a result Mr Kuloba does not satisfy the provisions of subsection 94(1) of the Act.
I find that Mr Kuloba is not qualified for the payment of DSP as a result of his application dated 9 May 2013.
That finding does not preclude Mr Kuloba from submitting another claim at any time he considers his conditions have changed or if he can obtain evidence that can corroborate his descriptions of the functional effects of his impairments.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 53 (fifty‑three) paragraphs are a true copy of the reasons for the decision herein of Mr C Ermert, Member ..........................[sgd]..............................................
Associate
Dated 27 August 2014
Dates of hearing 17 July 2014 and 7 August 2014 Applicant In person Advocate for the Respondent Mr T Noonan, Departmental Lawyer
Key Legal Topics
Areas of Law
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Social Security Law
Legal Concepts
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Standing
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Causation
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Compensatory Damages
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