Osman Rekic and Secretary, Department of Social Services
[2015] AATA 369
•22 May 2015
[2015] AATA 369
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/5239
Re
Osman Rekic
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal G. D. Friedman, Senior Member
Date 22 May 2015 Date of written reasons 28 May 2015 Place Melbourne The Tribunal affirms the decision under review.
...........................[Sgd]........................................
G. D. Friedman, Senior Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – impairment points – whether applicant participated in program of support.
LEGISLATION
Social Security Act 1991 s 94
Social Security (Requirements and Guidelines - Active Participation for Disability Support Pension) Determination 2011
CASES
Eid v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 558
REASONS FOR DECISION
G. D. Friedman, Senior Member
28 May 2015
The matter before me is an application for review of a decision by the Social Security Appeals Tribunal (SSAT) on 10 September 2013 which affirmed a decision by an authorised review officer made on 23 July 2013 refusing Mr Rekic's claim for Disability Support Pension. I have to decide whether Mr Rekic was qualified to receive Disability Support Pension in the relevant period which is from the date of claim and 13 weeks after that, meaning the qualification period in this case is 16 October 2012 to 15 January 2013.
The relevant section of the Social Security Act 1991 is s 94(1). Paragraph (a) refers to whether a person has a physical, intellectual or psychiatric impairment. There is no dispute between that parties, and I find that, during the qualification period, Mr Rekic suffered from a number of conditions including this lumbar spine, his lower limbs, anxiety, depression, migraine, hypertension, obesity, atrial fibrillation, sleep apnoea and gastritis and so he satisfies section 94(1)(a).
In terms of section 94(1)(b) the question is whether he had 20 impairment points or more under the impairment tables. There is no dispute between the parties, and I find that under table 4 for the lumbar spine his condition attracts 10 impairment points. For anxiety and depression under Table 5 his condition attracts an impairment rating of 10 impairment points. In relation to the lower limbs and the left tibula and fibula, in particular regarding Table 3, the SSAT found no impairment points because the condition was not fully diagnosed, treated, and stabilised during the qualification period. Mr Rekic's submission today was that there should be 10 impairment points and the respondent argued that the SSAT conclusion was the preferable one.
In my view the arguments supporting 10 impairment points outweigh the arguments supporting no points. Although Dr Ansari was somewhat equivocal in his original report in October 2012, and he did not refer to the lower limb condition as a separate condition, he said:
Back pain with pain down the legs aggravated by cold weather and lifting. Also has numbness in the left leg, left thigh, and pins and needles on the toes on left foot. The pain radiates to the left hip and lower back.
In evidence he clarified that and said that there was a separate condition. That is supported by the reports from Dr Khan on 1 June 2011 and 1 January 2011 in referring to the left lower limb condition. I allocate 10 impairment points for that condition.
There was not a lot of argument as far as gastritis is concerned under table 10, but in my view that condition was not fully diagnosed, treated, and stabilised at the date of claim and I allocate nil points for that.
The main issue before me today is whether to allocate points under table 1 for migraine, hypertension, obesity, atrial fibrillation, sleep apnoea and insomnia where the SSAT said that those conditions were not fully diagnosed, treated, and stabilised and allocated nil points. The respondent adopts the SSAT’s position. The applicant submits that there should be 20 impairment points for those conditions.
Dr Sillcock provided two reports. The initial report dated 26 September 2014 and a supplementary report dated 10 January 2015. The second report applies to the chronic obstructive airways disease (COAD), also known as chronic obstructive pulmonary disease (COPD). Dr Sillcock is an experienced and well qualified occupational physician and I have heard evidence from her on a number of occasions in this Tribunal. Clearly she was at a disadvantage in that she saw Mr Rekic on one occasion only and that was in June 2014 which was more than a year after the qualification period. Therefore, she was somewhat limited in her ability to make assessments as at the qualification period. In fact in her evidence she said it is not that easy to look back so far, and that is clearly the case here. She said she relies on other peoples' information, including the general practitioners, and she was making an educated guess when preparing her report.
Dr Ansari, in his report dated 31 October 2012, stated that the conditions of migraine, headaches, hypertension, obesity, gastritis, atrial fibrillation and flutter, sleep apnoea and insomnia were conditions that were generally well managed and caused minimal or limited impact on Mr Rekic's ability to function. When he was cross-examined on that today it was a little hard to work out exactly what he was saying but my clear impression, after hearing his evidence, was he felt that those conditions were not the main ones; the main conditions were the back and the psychiatric condition of anxiety and depression. In fact, he had sent Mr Rekic to various specialists for further advice.
Although Dr Sillcock, as I have said, is an experienced occupational physician, I give greater weight in terms of the conditions that I am considering at the moment to the general practitioner. He had been Mr Rekic's general practitioner for about 28 years at the time of writing the report in 2012 and he did not seem, although there was some difficulty understanding what he was saying, to resile from his assessment that those particular conditions were not causing a great impact on Mr Rekic's ability to function during the qualification period. Evidence was given by Mr Rekic that, shortly before that particular report was written, had been on an overseas trip for three months back to Bosnia and sitting on an aeroplane for long periods of time, which suggests to me that Mr Rekic did have some ability to function during that early period of 2012. It also suggests to me that his conditions generally have deteriorated considerably since 2012.
When allocating 20 impairment points under Table 1, Dr Sillcock said:
I observed that Mr Rekic was short of breath on even minimal exertion.
That is clearly, in my view, an unsatisfactory explanation of 20 impairment points, particularly as she was talking about her observations in June 2014. When Dr Ansari described those conditions as being well managed, Dr Sillcock said she did not speak to Dr Ansari and she said that it was his assessment at that particular time. For all those reasons I prefer the evidence of a treating general practitioner who has had long involvement with Mr Rekic to the medico-legal assessment which was only done for probably an hour or so more than a year later, particularly with the lack of description by Dr Sillcock of how she came to the rating of 20 points, other than the rating of 20 points on exertion. Dr Sillcock is familiar with the descriptors in the impairment tables and even when she gave evidence today in my view she did not satisfactorily explain how there would be a rating of 20 points, particularly back in the qualification period.
I accept that the conditions that I have listed, including hypertension, obesity, gastritis, atrial fibrillation and flutter, sleep apnoea and insomnia are conditions that have been around for a considerable amount of time. As far as the atrial fibrillation is concerned, the evidence was that Mr Rekic had reported heart problems as early as 2009 and he had had a number of hospital admissions. I note from a report from Western Health on 27 March 2012 when he was presenting to the emergency department, a diagnosis was made of atrial fibrillation and he later was referred to a specialist.
He also was referred to Dr John Hunt who wrote a report dated 26 June 2013 with a list of problems being COPD of moderate severity, ischaemic heart disease, snoring with obstructive sleep apnoea, overweight, gastroesophageal reflux, colio lithiasis, asbestos exposure, atrial flutter and fibrillation and post nasal drip. It is very difficult for me, as it is for all the parties and medical specialists, to isolate these various conditions. That is probably why they have been put together under Table 1.
Dr Hunt said, in relation to the current COPD treatment, there was:
Spiriva 18mcg one capsule daily of medication; Ventolin needed…
[Mr Rekic] was in the Emergency Department recently with atrial fibrillation which responded to Amiodarone with weight reduction but not reversion to sinus rhythm. He was also commenced on Augmentin for his chest.
Reviewing some cardiac investigations, he has only mild coronary artery disease irregularity on his angiogram in May with normal left ventricular function.
He was then referred to a lung function test confirming a moderate degree of airflow obstruction with a moderately reduced carbon monoxide transfer and there was going to be a referral for a sleep study. In my view that demonstrates that although a diagnosis may well have been made earlier, the specialist treatment and further investigations had not concluded during the qualification period.
I have been referred to a decision of Eid v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 558 where the Tribunal said at [88]:
…There is nothing inherent in the process of diagnosis or in diagnosis itself that suggests that a condition does not exist until it is diagnosed. There is nothing in Schedule 1B or in the Impairment Tables that suggests that either. All that they do is require that the condition be fully diagnosed. A person can suffer from a condition on a particular date even if it is yet to be identified and a name given to it as a result of a subsequent process of diagnosis that has regard to, among other matters, the symptoms that the person suffered on that date and his or her medical history at that time. Provided there is a diagnosis at some stage and the evidence shows that the person suffered from the condition in the relevant period, that meets the description of being a condition that is fully diagnosed.
Even if I accepted the various conditions were fully diagnosed then that certainly does not satisfy the requirement under the impairment tables that the condition be fully diagnosed, treated, and stabilised. And for the reasons I have just given, including the referral to Dr Hunt after the admission for the atrial fibrillation in March 2012, most of those conditions were not fully diagnosed, treated, and stabilised during the qualification period.
There has been reference to morbid obesity that has been around for a long time and I accept that that is the case. I also accept that Mr Rekic has always been obese. He said he has tried to lose weight and his wife cooks for him but he cannot walk very much. It has also been put to me that there is really nothing that can be done about his obesity problem because of the risks associated with surgery and that he has not been able to use a continuous positive airway pressure (CPAP) machine.
In my view he has not tried using a CPAP machine. Mr Rekic said to me that he has " not tried because they are too expensive." But, as Ms Bramley pointed out in her submission, there are ways of hiring a CPAP machine or trying one out or coming to some agreement with Centrelink or other government agencies for the use of aids such as a CPAP machine. I do not accept the argument that even though he has not used the CPAP that his condition was fully diagnosed, treated, and stabilised. For those reasons I do not accept Dr Sillcock's conclusion.
Similarly, with regard to the COPD, which was the subject of Dr Sillcock's second report, Dr Silcock’s impairment ratings remained. There was no mention of that condition in the original report by Dr Ansari and he was rather vague about it in evidence. I agree with the SSAT, particularly in the light of the report by Dr Hunt on 26 June 2013, that COAD or COPD was not fully diagnosed, treated, and stabilised during the qualification period.
The only other reference, apart from in Dr Sillcock's report, to COAD was some reference in hospital admission information of a hospital and that was dated 18 June 2013 which is well after the qualification period. Because of the paucity of medical information about that condition during the qualification period I find that that condition was not fully diagnosed, treated, and stabilised during that period and therefore no impairment rating can be allocated for that.
As far as insomnia is concerned, it could well be tied up with the sleep apnoea, the weight condition, and various other conditions. Even if it could be related to his heart conditions, for the reasons that I have already given in relation to the other conditions that are grouped together in Table 1, I find that was not fully diagnosed, treated, and stabilised during the qualification period. This finding is also as a result of Dr Ansari's original report back in October 2012.
As a result of those findings, my finding for Table 1 for migraine, hypertension, obesity, atrial fibrillation, sleep apnoea, and insomnia, is that those conditions were not fully diagnosed, treated, and stabilised as at the date of claim or 13 weeks afterwards and therefore I do not allocate any impairment points.
The conclusion in relation to s 94(1)(b) is that I have given 10 points for the lumbar spine, 10 points for the lower limbs and 10 points for the anxiety and depression which gives a total of 30 impairment points. Because there was no condition that attracted an impairment rating of 20 points or more I find that Mr Rekic was not severely disabled. Therefore I have to consider whether the program of support conditions are met under s 94(1)(c).
As far as s 94(1)(c) is concerned, that is a continuing inability to work, Mr Rekic is required to satisfy s 94(2)(aa) of the Act which is active participation in a program of support. I have before me a letter from Wise Employment, lodged on 23 January 2015, stating that Mr Rekic first registered with the service on 2 November 2012 and is still registered. He has only attended five appointments since registering and had a number of medical exemptions. He has regularly been granted temporary medical incapacity exemptions after submitting medical certificates to Centrelink.
The letter goes on to say:
An Employment Pathway Plan was negotiated during the time Mr Rekic was not on the exemption. The requirements negotiated with him were to attend fortnightly contact appointments and due to his high level of impairment, Mr Rekic agreed to undertake a health maintenance program.
…
Mr Rekic was unable to participate in any activities due to his health issues. As mentioned previously, he agreed to undertake a Health Maintenance Program but this did not eventuate due to an exemption being imposed by Centrelink, exempting him from participation in the program.
Other factors not related to his impairment that may have limited his ability to benefit from the services provided by Wise Employment were mature age, limited employment history, long-term unemployed, language barriers, endurance limitations and physical fitness. His non-participation was because of his health issues. He was prevented solely because of his impairment.
The requirements for active participation, at the relevant time, were set out in the Social Security (Requirements and Guidelines - Active Participation for Disability Support Pension) Determination 2011. Part 2 s 5(5) provides that:
(1) A person has actively participated in a program of support if:
(a) the person has:
(i) complied with the requirements of the program of support; and
(ii) participated in a program of support during the 36 months ending immediately before the relevant date of claim; and
(b) subsection (2), (3), (4) or (5) is satisfied in relation to the person and the program of support; and
(c) subsection (6) is satisfied in relation to the person and the program of support.
(2) This subsection is satisfied in relation to a person and a program of support if the person participated in the program of support for at least 18 months.
(3) This subsection is satisfied in relation to a person and a program of support if:
(a) the duration of the program of support was less than 18 months; and
(b) the person completed the program.
(4) This subsection is satisfied in relation to a person and a program of support if:
(a) the program of support was terminated before the relevant date of claim; and
(b) the program of support was terminated because the person was unable, solely because of his or her impairment, to improve his or her capacity to find, gain or remain in employment through continued participation in the program.
(5) This subsection is satisfied in relation to a person and a program of support if:
(a) at the relevant date of claim, the person is participating in the program of support; and
(b) the person is prevented, solely because of his or her impairment, from improving his or her capacity to find, gain or remain in employment through continued participation in the program.
(6) This subsection is satisfied in relation to a person and a program of support if the person provides the Secretary with the following in relation to the program of support:
(a) the details of the designated provider of the program;
(b) the dates when the person began the program and, if applicable, ceased the program;
(c) the reason for ceasing the program (if any);
(d) any period of non-participation in the program including exemptions, reliefs, or suspensions from the program;
(e) the reason for any period of non-participation in the program;
(f) the terms of the program that were specifically tailored to address the person’s level of impairment, individual needs, barriers to employment and capacity to work;
(g) the terms with which the person had to comply in order to satisfy the program requirements and the level of compliance with those terms;
(h) the vocational, rehabilitation or employment activities the person participated in as a part of the program;
(i) the frequency of contact that the person had with the designated provider of the program.
Mr Rekic was registered with the Westgate Community Initiatives Group as a volunteer, from 2 July 2010 to 12 July 2012 which is 10 days. He therefore does not meet s (5)(2) but there are exceptions to the requirement contained in subsections that follow.
The date of claim is 16 October 2012 and I have already noted the letter from Wise saying the registration was made on 2 November 2012. It was submitted to me that s 5(5) is met because Mr Rekic complied with the requirements of the program of support, that he attended when he was physically capable, he engaged with Wise Employment by completing an individual Employment Pathway Plan, and he participated in a program of support to the best of his ability and agreed to undertake a health management program.
It was put to me that he meets s 5(5) and 5(6) and that he has met all the requirements of s 94(2)(aa). In particular with s 5(5) it was put to me that he attended during the qualification period as he started on 2 November which is during the qualification period. Ms Bramley submitted that he was not participating in the program of support at the time of his claim and therefore cannot fall within any of the exceptions for the requirement of at least 18 months in ss 5(3), 5(4) and 5(5).
I note that the wording of s 5(5) is quite specific. It says:
This subsection is satisfied in relation to a person in a program of support if:
(a) At the relevant date of claim the person is participating in the program of support
In my view the wording of that subsection is very clear. It says at the relevant date of claim. It does not say during the qualification period. It does not say at any time during the 13 weeks after the date of claim. It says, quite specifically at the relevant date of claim.
Clearly Mr Rekic was not participating in the program of support in that time, therefore in my view he does not satisfy subsection 5(5)(a) of the requirement for active participation in the determination and I do not need to consider subsection (b) because of the word "and" that appears in subsection 5(5).
Consequently, it is my view that Mr Rekic has not satisfied the requirements of active participation in a program of support. He does not satisfy section 94(2)(aa) and therefore he does not satisfy section 94(1)(c) of the Social Security Act.
I certify that the preceding 34 (thirty four) paragraphs are a true copy of the reasons for the decision of G. D. Friedman, Senior Member ..............................[Sgd]...................................
Associate
Dated 28 May 2015
Date of hearing 22 May 2015 Counsel for the Applicant Ms A Wong Solicitors for the Applicant Victoria Legal Aid Advocate for the Respondent Ms A Bramley Solicitors for the Respondent Department of Human Services
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