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

[2015] AATA 958

Moharos and Secretary, Department of Social Services (Social services second review) [2015] AATA 958 (11 December 2015)

Division	GENERAL DIVISION
File Number	2015/2849
Re	Gyula Moharos
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member A C Cotter
Date	11 December 2015
Place	Brisbane

The decision under review is affirmed.

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Senior Member A C Cotter

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – Review of qualification – Cancellation of entitlement – Whether applicant has 20 points or more under the Impairment Tables in force at the time of cancellation – Decision under review affirmed

LEGISLATION

Social Security (Administration) Act 1999 (Cth) ss 80, 63(2)

Social Security Act 1991 (Cth) ss 94, 27(3)

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

CASES

Shi v Migration Agents Registration Authority (2008) 235 CLR 286

REASONS FOR DECISION

Senior Member A C Cotter

11 December 2015

INTRODUCTION

1. Mr Gyula Moharos was granted Disability Support Pension (“DSP”) in June 2010.

2. Not having returned to his native Hungary for 25 years and wanting to visit his family, he applied, in July 2014, for indefinite portability for his DSP. That prompted the Department to undertake a review of his entitlement to DSP.

3. In the period between Mr Moharos first qualifying for DSP and his request for indefinite portability, the Impairment Tables used to assess a person’s qualification for DSP were significantly amended. The review of Mr Moharos’ entitlement was undertaken under the new Impairment Tables.

4. Following its review, on 5 November 2014 the Department decided to cancel Mr Moharos’ DSP on that basis that he no longer qualified because he did not have 20 points or more under the current Impairment Tables.

5. Reviews by an Authorised Review Officer[1] and later, by the then Social Security Appeals Tribunal[2] (“SSAT”), confirmed the original decision of the Department.

   [1] Exhibit 1, T Documents, T 5, pages 45-52.

   [2] Exhibit 1, T Documents, T 2, pages 3-9.

6. Still dissatisfied with the outcome, Mr Moharos has applied to this Tribunal for a review of the SSAT’s decision.

   THE LEGISLATIVE FRAMEWORK

7. Under s 80 of the Social Security (Administration) Act 1999 (Cth)(“Administration Act”), if the Secretary is satisfied that a social security payment is being paid to a person who is not qualified for that payment, the Secretary is to determine that the payment is to be cancelled. The question of whether the person is qualified or not is to be determined as at the day on which the cancellation occurs.[3] In this case, that is 5 November 2014.[4]

   [3] See Shi v Migration Agents Registration Authority (2008) 235 CLR 286.

   [4] Exhibit 1, T Documents, T 4, page 44.

8. Section 94 of the Social Security Act 1991 (Cth) (“Act”) prescribes the criteria necessary to qualify for DSP. For present purposes, the three primary requirements are that the person has a physical, intellectual or psychiatric impairment; that the person’s impairment is of 20 points or more under the Impairment Tables; and that the person has a continuing inability to work.

9. After receiving Mr Moharos’ request for indefinite portability, the Secretary issued a notice under s 63(2) of the Administration Act, seeking information to enable a consideration of that application.[5] Under s 27(3) of that Act, if a person is receiving DSP and receives a notice under s 63(2), the Secretary, in assessing their qualification for that pension, must apply the Impairment Tables in force at the time the notice is given. At that time (11 July 2014[6]), the Impairment Tables in force were those made under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“2011 Determination”). 

   [5] Exhibit 1, T Documents, T 35, page 172.

   [6] Exhibit 1, T Documents, T 35, page 172.

10. The Tables are function, rather than diagnostic, based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impact of impairment, and not to assess conditions.

11. Under the rules for applying the Impairment Tables, an impairment rating can only be assigned if the person’s condition causing the impairment is “permanent” and the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than two years.[7] In order for a condition to be considered “permanent”, it must have been fully diagnosed by an appropriately qualified medical practitioner; been fully treated; been fully stabilised; and more likely than not, in light of available evidence, to persist for more than two years.[8]

    [7] See s 6(3) of the 2011 Determination.

    [8] See s 6(4) of the 2011 Determination.

    ISSUES FOR THE TRIBUNAL

12. There is no doubt that Mr Moharos suffers from a number of conditions which impair his functional ability. The Secretary accepted that he suffers from the following conditions: chronic back and neck pain; right wrist pain; left knee pain; hernia; and depression.[9] Based on the substantial amount of medical reports that Mr Moharos provided, I think that concession is appropriate. Therefore, Mr Moharos satisfies the first of the requirements for DSP.

    [9] See Exhibit 4, Secretary’s Statement of Facts and Contentions dated 31 August 2015, paragraph [31].

13. Consequently, the following issues remain for my consideration:

    a.whether, as at the date of cancellation (5 November 2014), Mr Moharos’ impairments attracted 20 points or more under the Impairment Tables made under the 2011 Determination; and

    b.if so, whether he had a continuing inability to work.

    I deal with those issues below.

    CONSIDERATION

    Did Mr Moharos’ impairments attract 20 points or more?

    Chronic back and neck pain

14. There is no doubt that this condition was fully diagnosed, treated and stabilised, with the Authorised Review Officer having assigned impairment points to the impairment[10] and the SSAT having reached the same conclusion.[11] Similarly, the Secretary accepts that the condition is fully diagnosed, treated and stabilised so that points can be assigned.[12] Having regard to the medical evidence, I agree with that conclusion. The question is therefore what points should be assigned under the relevant table, Table 4 (Spinal Function).

    [10] Exhibit 1, T Documents, T 5, page 47.

    [11] Exhibit 1, T Documents, T 2, page 6.

    [12] See Exhibit 4, Secretary’s Statement of Facts and Contentions dated 31 August 2015, paragraph [32].

15. The Job Capacity assessor who saw him on 18 August 2014 summarised in her subsequent report Mr Moharos’ self-report of the impact this condition had on him. He told her that he:

    (a)suffers constant neck pain, radiating to his right shoulder and arm;

    (b)experiences severe stiffness in the morning, which loosens once moving;

    (c)has headaches most days, which are worse in the morning;

    (d)is able to attend to his personal care, but his domestic tasks were becoming more difficult to perform (he had not mown the lawn in six months);

    (e)could sit for 20 to 30 minutes at a time and stand for a similar period;

    (f)could walk 300 metres, but his left leg and back pain limited his walking tolerance;

    (g)was able to manage one flight of stairs, or otherwise, one step at a time;

    (h)was able to drive, and used public transport once or twice a week, although sometimes a bumpy bus ride increased his pain;

    (i)went shopping using a pulling trolley;

    (j)had a lifting tolerance of about eight to 10 kilograms (occasionally), although he said he was able to carry his shopping twice a week; and

    (k)previously enjoyed gardening, but his hobbies are now limited.[13]

    [13] Exhibit 1, T Documents, T 38, page 195.

16. He reported the same limitations in respect of his back pain, adding that he suffers constant lower back pain which radiates to the left hip and down the left leg to the knee.[14]

    [14] Exhibit 1, T Documents, T 38, page 197.

17. At the interview, the assessor observed Mr Moharos sit for 30 minutes without significant movement. His neck flexion/extension was noted to be unrestricted, although his neck rotation was reduced by 25% bilaterally. He was able to lift light objects from a table or chair, but experienced difficulty lifting from the ground. He had trunk flexion to mid shin level. His shoulder flexion was unrestricted bilaterally.[15]

    [15] Exhibit 1, T Documents, T 38, page 195.

18. In evidence to the SSAT, Mr Moharos said that he has some difficulty turning to look left and right. He could, however, look up and down a bit. He said that he could usually sit for about 20 minutes on average but it varied; in the 55 minute train ride to the SSAT hearing, he had to stand two or three times.[16]

    [16] Exhibit 1, T Documents, T2, page 5, paragraph [14].

19. At the hearing before me, Mr Moharos gave evidence with the assistance of a Hungarian language interpreter. He told me that since the date of cancellation of his DSP, his neck condition had worsened, as had the conditions affecting his right wrist and his hip. With respect to his neck rotation, Mr Moharos told me that he is only able to turn about half way to his left (that is, to about 45°), such that when he is driving (which is never very far, as he lives on Macleay Island) he has to turn his shoulders as well. He experiences no problems turning his neck to the right. Mr Moharos also said that the pain in his left hip as a result of his back condition had worsened since the date of cancellation.  He  said that the times and distances that he gave to the Job Capacity assessor were estimates only, and could vary from time to time. He added that he thought the Job Capacity Assessment report was incorrect, in that he had told the assessor that he could not sit or stand for 20 to 25 minutes, not the 20 to 30 minutes mentioned in the report.

20. Based on what he told it and the Job Capacity assessor, the SSAT found that Mr Moharos’ neck and back conditions caused moderate functional impact, and assigned 10 points under Table 4; it did not consider that his impairment could attract 20 points under that table.

21. I agree with the SSAT’s finding. While I believe Mr Moharos is able to meet the descriptors for moderate (10 point) functional impact, I am not satisfied that he is able to justify a severe (20 point) rating. In fact, at the time of cancellation, it appears that he was able to do all the tasks described in the descriptors for that level. There is no suggestion that he could not perform overhead activities, bend forward to pick up a light object from a desk or table, or remain seated for at least 10 minutes. From what he demonstrated to me, there was a restriction on turning his head fully to the left, but that did not completely prevent him from turning without moving his trunk. I am also conscious of the fact that by the time of the hearing, almost 12 months had passed since the date of cancellation, during which time Mr Moharos’ condition had relevantly worsened. For that reason, I am more inclined to rely on the Job Capacity assessor’s observations at the time of the assessment.

22. In light of Mr Moharos’ complaint that his left leg and back conditions limited his walking tolerance, it might be thought that this impairment could also be considered under another table, Table 1 (Functions requiring Physical Exertion and Stamina). However, as that impairment has already been assessed under Table 4, it is not appropriate to assign a rating for that impairment under more than one table.[17]

    [17] See s 10(4) of the 2011 Determination.

23. For the above reasons, I find that Mr Mohoros’ impairment from his back and neck attracts 10 impairment points.

    Right wrist condition

24. Again, there is no dispute that this condition was fully diagnosed, treated and stabilised and therefore, could attract impairment points.[18] The question is therefore what impairment rating should be assigned under the relevant table, Table 2 (Upper Limb Function).

    [18] See Exhibit 4, Secretary’s Statement of Facts and Contentions dated 31 August 2015, paragraph [33].

25. In his report of 24 July 2014, Mr Moharos’ general practitioner, Dr Saman Perera, described this condition as one which was generally well managed and that caused minimal or limited impact on Mr Moharos’ ability to function.[19]

    [19] Exhibit 1, T Documents, T 36, page 184.

26. The Job Capacity assessor noted that Mr Moharos complained of pain and stiffness with a restricted range of movement. Mr Moharos told the assessor that his wrist easily fatigues with use and that he has a reduced capacity to push using the wrist (for example, in lawn mowing). He said that he was able to manage buttons, zippers and handwriting, but with reduced endurance. He uses his non-dominant left hand for strength. The assessor observed that he had a very limited active range of movement for flexion/extension/pronation and supination of the wrist.[20]

    [20] Exhibit 1, T Documents, T 38, page 196.

27. At the hearing, Mr Moharos told me that since the date of cancellation, his wrist condition had worsened and his wrist had become more sensitive. He demonstrated the impact by turning his wrist, which resulted in an audible knocking sound and shaking in his right hand; he also told me that he experienced a burning sensation. The worsening of the wrist condition appears to have been recognised by Dr Perera, who completed a further medical report on 13 March 2015.[21] In contrast to his earlier report the preceding July, he included Osteoarthritis affecting the right wrist among the conditions having a significant impact on functional ability. A report was also obtained from a specialist rheumatologist, Dr Chin Ng, who confirmed the diagnosis having been made on 27 January 2015.[22]

    [21] Exhibit 2(b).

    [22] Exhibit 1, T Documents, page 226, medical report of Dr Chin Ng dated 28 January 2015.

28. Although I accept that Mr Moharos’ wrist condition deteriorated in the year that elapsed between the date of cancellation and the hearing, the former date, 5 November 2014, is the relevant date for my consideration. In the absence of any later medical evidence that reliably refers back to, and confidently speaks to, the worsening of the condition at the relevant date, I have regard to the medical and other evidence relevant to that time – the July report of Dr Perera[23] and the Job Capacity Assessment report of 2 September 2014[24] which records Mr Morharos’ self-reporting from the time.

    [23] Exhibit 1, T Documents, T 36, page 176.

    [24] Exhibit 1, T Documents, T 38, page 194.

29. While Mr Moharos’ condition caused him some functional impact, I accept the view of his treating doctor, Dr Perera, that at the time, that impact was minimal or limited. In particular, I do not think that at that time the functional impact met the descriptors for moderate impact (such as having difficulty with picking up a litre carton of milk, or difficulty holding a pen or pencil or picking up a light but bulky object with two hands). When attention is turned to the descriptors for severe functional impact (20 points), I think Mr Moharos’ position at the time fell considerably short of those descriptors (such as limited movement or coordination in both arms or hands; severe difficulty in handling most objects; and severe difficulty in using a pen or pencil).

30. Accordingly, I think the most that can be attributed to this impairment under Table 2 is five points.

    Left knee pain

31. Significantly, this condition was not specifically mentioned by Dr Perera in his report of July 2014. He did, however, mention Osteoarthritis in the left knee in his report of 13 March 2015, although he noted that the condition was generally well managed and one which caused minimal or limited impact on capacity to function.[25]

    [25] Exhibit 4, Attachment A to Secretary’s Statement of Facts and Contentions dated 31 August 2015.

32. The Job Capacity assessor noted that the previous Job Capacity Assessment conducted when DSP was originally granted in 2010 assigned no points to the impairment.[26]  During the most recent interview, Mr Moharos reported experiencing episodic pain which was worse after prolonged standing/walking. He said that he could stand for a maximum of 20 to 30 minutes and had a walking tolerance of 300 metres, with an ability to manage one flight of stairs.[27] He reiterated that evidence at the hearing, and also referred to his knee making an audible clicking noise when he moves.

    [26] Exhibit 1, T Documents, T 38, page 197.

    [27] Exhibit 1, T Documents, T 38, page 198.

33. Based on his self-report, I do not think Mr Moharos satisfies the descriptors for mild functional impact (five points) under Table 3 (Lower Limb Function). At the time of cancellation, Mr Moharos was able to do the activities that are described for mild (and indeed, for moderate and severe) functional impact under the table. I therefore consider that he can only be assigned nil points under that table.

    Hernia

34. Mr Moharos told the SSAT that he had an operation three years earlier to repair his right inguinal hernia and that there were complications that required him to return to the emergency department three times. He said that he experiences pain and that it has been sensitive since then.[28]

    [28] Exhibit 1, T Documents, T 2, page 8, paragraph [40].

35. Dr Perera noted the condition as one which was generally well managed and which had limited or minimal impact on Mr Moharos’ ability to function.[29] Apart from that reference, there is limited medical evidence available regarding this condition.

    [29] Exhibit 1, T Documents, T 36, page 184.

36. Mr Moharos reported to the Job Capacity assessor that the condition affected his mood one to two times a week. He suffers intermittent scrotum pain which can impact on his sitting tolerance.[30]

    [30] Exhibit 1, T Documents, T 38, page 198.

37. During cross-examination at the hearing, Mr Moharos said that when he had attended at the emergency department, he had been told that the pain was attributable, not to his hernia repair surgery, but to an earlier vasectomy that he had. Mr Moharos did not agree with that assessment and thought the explanation was given simply as an excuse. In any event, there is no medical evidence which supports that version.

38. At the hearing, Mr Moharos acknowledged that this condition did not affect him much. He said that he experiences a sudden pain three to five times a day, which passes quickly. The frequency of the episodes depends on different factors, such as what he is wearing, or whether his belt is tighter than normal.

39. In light of Dr Perera’s assessment, the lack of any additional medical evidence and the fact that Mr Moharos’ own self-report did not identify any moderate or severe functional impairment as a result of the condition, I accept the Secretary’s submission that zero points should be assigned for no functional impact under Table 1 (Functions requiring Physical Exertion and Stamina).

    Depression

40. Mr Moharos provided a report from psychiatrist Dr Shafiq Yasin dated 19 January 2015, confirming that he diagnosed Mr Moharos as suffering from depressive illness on 28 November 2014 (he having first seen him on that date). Medication was prescribed, with future or planned treatment being described as regular appointments with psychiatrist; review medication; and cognitive behaviour psychotherapy.[31] While he noted that Mr Moharos had suffered untreated depression for years,[32] Dr Perera remarked that it was a “new onset condition, started with loss of income”.[33]

    [31] Exhibit 1, T Documents, T 43, pages 215-216.

    [32] Exhibit 1, T Documents, T 43, page 217.

    [33] Exhibit 2(b) medical report of Dr Saman Perera dated 13 March 2015, page 6/11.

41. Although the condition has been diagnosed by Dr Yasin, that diagnosis came over three weeks after the date of cancellation. The condition could therefore not be said to have been fully diagnosed at the relevant date. It also seems that the appropriate course of treatment is yet to be determined, let alone as at the date of cancellation. Therefore, I do not consider that the condition could be said to have been fully treated and stabilised at the relevant time. In those circumstances, I do not believe that any impairment points can be assigned to that impairment, at least not as at 5 November 2014.

    Other Matters

1. The Secretary’s representative referred me to Dr Perera’s first report which described headaches as one of Mr Moharos’ symptoms,[34] raising the possibility of whether impairment points could be additionally assigned under either Table 1 (Functions requiring Physical Exertion and Stamina) or Table 7 (Brain Function). However, I agree that there is insufficient corroborating medical evidence to satisfy the requirements of the Tables.

   [34] Exhibit 1, T Documents, T 36, page 179.

   Summary

2. To summarise, I believe that, at the date of cancellation, Mr Moharos had 15 impairment points under the relevant tables, being comprised of 10 points for his back/neck condition and five points for his right wrist condition.

3. As he did not have 20 points or more at the date of cancellation, Mr Moharos did not meet the second requirement for DSP under s 94(1) of the Act, and therefore did not qualify for DSP as at that date.

   Continuing Inability to Work?

4. In view of my conclusion above, it is not necessary to consider this issue as Mr Moharos no longer qualified for DSP.

   CONCLUSION

5. Mr Moharos did not qualify for DSP as at the relevant date (5 November 2014) because he did not have impairments at that time which totalled 20 points or more under the Impairment tables made under the 2011 Determination.

6. I appreciate that this will be very disappointing to Mr Moharos. However, I note again that this decision is based on a consideration of circumstances dating back to the cancellation date, now over a year ago. Since that time, several of Mr Moharos’ conditions have worsened. His depressive condition not having been fully diagnosed, treated and stabilised at the time, no points could have been assigned to it in this instance. Given these matters, he should not be discouraged from lodging a fresh application for DSP should he wish to.

7. The decision under review is affirmed.

I certify that the preceding 48 (forty -eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member A C Cotter

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Associate

11 December 2015

Date of hearing	4 November 2015
Applicant	In person
Solicitors for the Respondent	Department of Human Services