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

[2015] AATA 685

Ozdemir and Secretary, Department of Social Services (Social services second review) [2015] AATA 685 (9 September 2015)

Division	GENERAL DIVISION
File Number(s)	2015/0662
Re	Serafettin OZDEMIR
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr Ion Alexander, Member
Date	9 September 2015
Place	Sydney

The Tribunal affirms the decision under review.

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Dr Ion Alexander

CATCHWORDS – SOCIAL SECURITY – disability support pension – spine, upper limb and mental health conditions – whether conditions fully diagnosed, treated and stabilised - impairment ratings – continuing inability to work – decision under review affirmed

Legislation

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999

Secondary Materials

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

Social Security (Requirements and Guidelines- Active Participation for Disability Support Pension) Determination 2011

REASONS FOR DECISION

BACKGROUND

1. In 2008 Mr Ozdemir had a fall at his place of employment which caused him to suffer pain in the neck, shoulder, back and left leg. Radiological investigations revealed abnormalities in the right shoulder, cervical spine and lumbosacral spine.

2. On 8 April 2014 Mr Ozdemir lodged a claim for Disability Support Pension (“DSP”) on the basis that he suffered medical conditions which were having an impact on his ability to function.

3. Mr Ozdemir’s claim was rejected by Centrelink, both initially and on internal review, and subsequently by the Social Security Appeals Tribunal (“SSAT”) on the basis that he did not satisfy the requirements of s 94 of the Social Security Act 1991 (Cth) (“the Act”). In particular he did not satisfy s 94(1)(c) of the Act, in that he did not have a continuing inability to work.

4. In these proceedings Mr Ozdemir seeks review of the decision of the SSAT dated 21 January 2015.

5. At the hearing Mr Ozdemir was self-represented and assisted by an interpreter of the Turkish language.

   ISSUES

6. In order to qualify for DSP, Mr Ozdemir must satisfy the requirements of s 94 of the Act as at the date of the claim or within 13 weeks of lodging the claim, in accordance with the requirements of the Social Security (Administration) Act 1999, that is, between 8 April  2014 and 9 July 2014 (the claim period).

7. Section 94(1) of the Act provides 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)the person has a continuing inability to work as defined by the Act.

8. The Respondent concedes and the Tribunal accepts that Mr Ozdemir suffers medical conditions that cause impairment and he therefore satisfied s 94(1)(a) of the Act at the time of his claim for DSP.

9. The relevant medical conditions are a mental health condition (depression), a spine condition and an upper limb condition (right shoulder). 

10. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Impairment Determination”) requires that an impairment rating can only be assigned to an impairment if the condition causing that impairment is “permanent” (paragraph 6(3)(a)).

11. For the purposes of paragraph 6(3)(a) a condition is permanent if it is:

    ·fully diagnosed by an appropriately qualified medical practitioner (paragraph 6(4)(a)); and

    ·fully treated (paragraph 6(4)(b)); and

    ·fully stabilised (paragraph 6(4)(c)); and

    ·the condition is more likely than not to persist for more than two years (paragraph 6(4)(d)).

12. The introduction to each Table requires that “self-report of symptoms alone is insufficient” and “there must be corroborating evidence of the person’s impairment”.

13. The respondent submits that during the claim period Mr Ozdemir had a combined rating under the Impairment Tables of 15 points: 10 points under Table 4 for impaired spinal function, and 5 points under Table 5 for impaired mental health function. The Respondent further submits that during the claim period the right shoulder condition was not fully treated and stabilised so cannot be assigned a rating. On this basis, the respondent contends Mr Ozdemir did not satisfy section 94(1)(b) of the Act at the date of his claim.

14. If the Tribunal finds that during the claim period Mr Ozdemir had a rating of 20 points or more under the Impairment Tables the Respondent contends that Mr Ozdemir did not satisfy section 94(1)(c) of the Act in that he did not have a continuing inability to work. In particular the Respondent contends that he had not participated in a program of support in accordance with section 94(2) of the Act.

15. Therefore the Tribunal must consider whether during the claim period Mr Ozdemir had a rating of 20 points or more under the Impairment Tables and if so whether he had a continuing inability to work.

    IMPAIRMENT RATING

    Spine condition

16. In a Centrelink Medical Report dated 2 April 2014, Dr Khalil, GP, lists “multiple cervical and lumbar spine disc bulging, nerve root irritation” as a condition with most functional impact. His comments in relation to Mr Ozdemir’s ability to function were “unable to lift, repetitive use of arm or bend his back”.

17. In a Job Capacity Assessment (JCA) report submitted on 13 June 2014, the assessor notes that Mr Ozdemir reported that he can sit for 30 minutes, walk for 15 to 20 minutes, can drive a car at least 30 minutes, has some difficulty in moving his head to look in all directions and needs occasional help with self-care.

18. The assessor concluded that there was a moderate functional impact on activities involving spinal function and recommended a rating of 10 points under Impairment Table 4.

19. After due consideration of all the evidence before the Tribunal I am satisfied that during the claim period a rating of 10 points under Impairment Table 4 is appropriate.

    Mental health condition

20. In a report dated 6 August 2008 Dr Chaudhary, psychiatrist, notes symptoms of “insomnia and depressed moods”, he makes no formal diagnosis but recommends treatment with Aurorix and Temaze. There is no other documentary evidence before the Tribunal from Dr Chaudhary in reference to any follow-up appointments or treatment.

21. In his report of 2 April 2014 Dr Khalil lists  “Post Traumatic depression” as a condition with most functional impact and describes the impact on Mr Ozdemir’s ability to function as “poor memory, poor concentration” and that his symptoms were “insomnia, depressed mood, decreased energy and motivation”.  He notes that there was a specialist consultation with Dr Chaudhary in 2008, psychological counselling which commenced in December 2013, and anti-depressant treatment which commenced in 2008 and is ongoing.

22. In a letter dated 11 July 2014, Ms Faustino, psychologist, notes that she saw Mr Ozdemir for 10 sessions between 3 January 2014 and 16 May 2014 for treatment of anxiety and depression symptoms associated with chronic pain. She noted that upon completion of the program Mr Ozdemir advised that he continues to experience chronic back pain which is the substantial cause of his reported psychological symptoms.

23. Ms Faustino did not provide any relevant assessment as to how Mr Ozdemir’s mental health condition impacted on his ability to function.

24. In a letter dated 4 May 2015, Dr Khalil states that Mr Ozdemir “is still showing increasing signs of anxiety, depression sleep disorder, he became tense and restless” and “is still experiencing nightmares, depressed mood and tension headache”.  Dr Khalil also states that “he is still seeing psychiatrist, (Dr Chaudhary) in Parramatta on a regular basis. He is prescribed antidepressants, Aurorix and sleeping tablets Temaze to help in him in his sleeping problems”.

    Consideration

25. One of the difficulties with this issue is the deficiency of documentary evidence of the claimed ongoing psychiatric care over a five year period, which in my view, raises significant concerns about whether Mr Ozdemir’s mental health condition was fully diagnosed, treated and stabilised during the claim period.

26. A further difficulty is the lack of corroborative evidence necessary to support Mr Ozdemir’s claim of functional impairment. The available evidence can best be described as incomplete and, in my view, does not provide a satisfactory assessment of Mr Ozdemir’s functional impairment during the claim period.

27. The JCA assessor and the SSAT concluded that Mr Ozdemir’s condition had a mild functional impact on activities involving mental health function and applied a rating of 5 points under Impairment Table 5. These conclusions appeared to be based primarily on Mr Ozdemir’s self-report of symptoms.

28. Notwithstanding the difficulties, for present purpose, I am prepared to accept that during the claim period Mr Ozdemir’s rating under Impairment Table 5 was 5 points.

    Upper limb condition

29. An ultrasound examination performed on the 19 May 2008 is reported as showing “flattening of the bursal contour of the supraspinatus tendon suggestive of partial thickness supraspinatus tear” with a “mild biceps tendon sheath effusion”. No other abnormality was reported.

30. In a letter dated 27 October 2008, Professor George Murrell, orthopaedic surgeon, diagnosed “[s]ignificant partial-thickness rotator cuff tear, right shoulder and AC joint pain”. He recommended “arthroscopy, rotator cuff repair and injection of corticosteroid and local anaesthetic into the AC joint”.

31. An MRI of the right shoulder performed on 12 June 2010 is reported as showing “[l]ow grade partial insertional tear of the supraspinatus. Minimal tendinopathy and minimal bursal oedema involving the mid-supraspinatus. Subacute low grade partial tear of the subscapularis. Tear within the anterior glenoid seen inferiorly extending into the inferior glenoid labrum”.

32. In a letter dated 15 July 2010, Dr Davè, orthopaedic surgeon, notes the findings in the MRI and concludes that the “tear of the anterior and inferior glenoid labrum” is the “major part of [his] problem”. He recommended “arthroscopy of the shoulder with a view to repair”.

33. In a letter dated 26 August 2010, Dr Conrad, surgeon, notes that Mr Ozdemir is reluctant to have surgery on the right shoulder as recommended by Dr Davè but provided no details of Mr Ozdemir’s reasons.

34. In a letter dated 18 October 2010, Dr Manohar, rehabilitation physician, notes that he has advised Mr Ozdemir to seriously consider surgery.

35. In his report of 2 April 2014, Dr Khalil notes “progressive (R) shoulder & rotator cuff tear” as a condition that is generally well managed and that causes minimal or limited impact. He provided no other details regarding this condition.

36. In a supplementary letter dated 14 August 2014, Dr Khalil notes that Mr Ozdemir is suffering from “rotator cuff full thickness tear and impingements to his right shoulder” and has “severe tenderness and decreased range of motion in the shoulder joint”. He refers to the recommendations for surgery by Professor Murrell and Dr Davè but provides no other relevant details.

    Consideration

37. There is no dispute that Mr Ozdemir has pathology in his right shoulder as diagnosed in 2008 and confirmed in 2011.

38. However, as there is no documentary evidence before the Tribunal of any further investigation or specialist assessment since 2011 or any treatment since 2008, I am not satisfied that during the claim period Mr Ozdemir’s right shoulder condition was fully treated and fully stabilised.

39. Dr Khalil’s documentary evidence I find unhelpful as it is inconsistent and does not point to any contemporaneous evidence concerning diagnosis or treatment of the shoulder condition.

40. Furthermore, it is not clear to the Tribunal why Mr Ozdemir was reluctant to have surgery despite strong recommendations from several specialists.

41. It follows that in respect of Mr Ozdemir’s upper limb condition a rating during the claim period under Impairment Table 2 could not be applied.

    CONCLUSION

42. For reasons set out above I am satisfied that Mr Ozdemir’s rating under the Impairment Tables was not 20 points or more so that he did not satisfy section 94(1)(b) of the Act and therefore did not qualify for DSP during the claim period.

43. As Mr Ozdemir did not satisfy section 94(1)(b) of the Act it is not necessary for the Tribunal to consider whether during the claim period Mr Ozdemir had a continuing inability to work as required by section 94(2) of the Act however I believe it would be useful to comment on this issue.

44. If the Tribunal accepted Mr Ozdemir’s upper limb condition was permanent for the purposes of the Impairment Determination and accepted the SSAT’s assessment of 5 points under Impairment Table 2 his combined rating under the Impairment Tables would have been 20 points. This means that he would have satisfied section 94(1)(b) of the Act.

45. Section 94(2) of the Act provides that a person has a “continuing inability to work” because of an impairment if the Secretary is satisfied that:

    in a case where the  person’s  impairment is not a severe impairment within the meaning of subsection (3B) – the person has actively participated in a program of support  within the meaning of subsection (3C)

46. Subsection 94(3B) provides that “a person’s impairment is a severe impairment  if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table”.  This means that, for Mr Ozdemir, any one of his spine, mental health or upper limb conditions, must of itself attract an impairment rating of 20 points.

47. As I find none of Mr Ozdemir’s conditions attract an impairment rating of 20 points he did not suffer a severe impairment as defined by section 94(3B) of the Act. If Mr Ozdemir attained 20 or more points across more than one Impairment Table, to qualify for the DSP, he would have been required to have actively participated in a program of support (POS) as outlined in the Social Security (Requirements and Guidelines- Active Participation for Disability Support Pension) Determination 2011 (the POS Determination).

48. Part 2 of section 5 of the POS Determination provides that a person has actively participated in a POS if the person has participated in a POS for 18 months of the 36 months immediately preceding the date on which the person made their claim for DSP. Centrelink documents indicate that Mr Ozdemir actively participated in a POS for a period of approximately 5 months during the relevant time which means that he did not meet the requirements of section 94(2) of Act. Therefore, even if Mr Ozdemir had a combined impairment rating of 20 points, I could not be satisfied he had a continuing inability to work as defined by that section of the Act and he could not have qualified for DSP when he made his claim in April 2014.

49. Accordingly, in addition to not attaining an impairment rating of 20 or more points, Mr Ozdemir also did not satisfy the requirement in section 94(1)(c) of the Act that he have a continuing inability to work and therefore I find he did not qualify for DSP during the claim period.

    DECISION

50. The decision under review is affirmed.

I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Dr Ion Alexander, Member.

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Associate

Dated   9 September 2015

Date of hearing	14 August 2015
Representative for Applicant	Self-represented
Representative for Respondent	Maurice Lynch, Department of Human Services