Pavlis and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2013] AATA 106
•28 February 2013
[2013] AATA 106
Division GENERAL ADMINISTRATIVE DIVISION File Numbers
2012/1967
Re
George Pavlis
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Mr Conrad Ermert, Member
Date 28 February 2013 Place Melbourne The Tribunal affirms the decision under review.
.............[sgd]...........................................................
Mr Conrad Ermert, Member
SOCIAL SECURITY – disability support pension – start date – qualifying period – whether impairment – assessment of impairment – Impairment Tables – whether 20 points or more – decision affirmed
Legislation
Social Security Act1991 section 94(1)(a), (b) and (c)
Social Security (Administration) Act 1999 Clauses 3 and 4(1) of Schedule 2Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Mr Conrad Ermert, Member
28 February 2013
INTRODUCTION
On 23 January 2012 Mr Pavlis, the applicant, expressed an intention to lodge a claim for disability support pension (DSP). The applicant subsequently lodged the DSP claim on 6 February 2012. Dr Peter Andrianakis submitted a medical report dated 27 January 2012 in support of Mr Pavlis’ claim. The report listed a number of conditions that could potentially result in impairment - lower back pain, depression/chronic pain, hypertension, high cholesterol, obesity, lung fibrosis and side effects from medications.
On 6 February 2012 a psychologist and an exercise physiologist undertook a job capacity assessment (JCA) of Mr Pavlis’ situation. The assessors found that Mr Pavlis had a back condition attracting an impairment rating of 10 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables). They assessed the other conditions as being not fully diagnosed, treated and stabilised or attracting impairment ratings of zero points, having no functional impact upon Mr Pavlis.
On 7 February 2012 an officer of Centrelink, the service provider for the Department of Families, Housing, Community Services and Indigenous Affairs, decided that Mr Pavlis was not eligible for DSP as his impairment rating was less than 20 points. On 20 March 2012 an Authorised Review Officer (ARO) of Centrelink affirmed the decision. On 2 May 2012 the Social Security Appeals Tribunal (SSAT) affirmed the ARO’s decision.
This matter is an application for a review of the SSAT decision.
THE HEARING
Mr Pavlis represented himself at the hearing and gave evidence under oath. His mother, Mrs Despina Pavlis, also gave evidence under oath. Mr Andrew Shelley, of Sparke Helmore Lawyers, represented the respondent.
I took into evidence:
·the documents provided pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents);
·A 25-page bundle of documents (Exhibit A1);
·A 13-page bundle of documents (Exhibit A2); and
·A 7-page bundle of medical reports (Exhibit A3).
THE LEGISLATION
The relevant legislation is contained in the Social Security Act 1991 (the Act), the Social Security (Administration) Act 1999 (the Administration Act) and the Impairment Tables.
Clauses 3 and 4(1) of Schedule 2 to the Administration Act provide that the start date for a DSP claim is the date of the claim, or a date within 13 weeks of lodging the claim on which the claimant becomes qualified.
Section 94 of the Act provides that a person is qualified for DSP if the person has an impairment which attracts an impairment rating of 20 points or more under the Impairment Tables and the person has a continuing inability to work.
Part 2 of the Impairment Tables provides the rules for their application. Section 6 of the Impairment Tables provides that an impairment rating can only be assigned to an impairment if the condition has been fully diagnosed by an appropriately qualified medical practitioner and has been fully treated and stabilised, and is likely to persist for more than two years.
THE ISSUES
There is no dispute about the start date or duration of the qualifying period. The issue is whether Mr Pavlis was qualified for DSP on 23 January 2012 or became so qualified by 23 April 2012. This requires consideration of whether, during that time, Mr Pavlis:
·had any physical, intellectual or psychiatric impairments, and, if so
·whether those impairments attract 20 points or more under the Impairment Tables and, if so
·whether he has a continuing inability to work.
THE EVIDENCE
Mr Pavlis
Mr Pavlis stated that when he first applied for the DSP, Centrelink told him that he did not have sufficient points and they left him on Newstart Allowance. He sought review of the decision and provided additional reports from doctors and neurosurgeons. Mr Pavlis said that according to his two doctors he has accumulated an impairment rating of 60 points for his medical conditions, although Centrelink has assessed him at 10 points.
Mr Shelley questioned Mr Pavlis about his medical conditions. Mr Pavlis said that he had his first episode of heart failure in 2000 and has had subsequent episodes but not bad ones. He takes nitrate spray for the angina. Mr Pavlis said that his high cholesterol and high blood pressure do not affect him as long as he takes his tablets.
In regard to his lower back pain, Mr Pavlis said that the first onset was in 2010. Mr Pavlis said he saw Dr James King who said unfortunately we can’t do nothing for you. You just got to put up with your back. Mr Pavlis said that because there was no nerve damage he had to suffer with the pain. Mr Pavlis said he also saw Dr Michael Wong after having a second MRI on 31 August 2011. He said Dr Wong agreed with Dr King that his back was inoperable. Mr Pavlis said he is now taking morphine and Panadeine Forte. Mr Pavlis said that he had tried cortisone injections, physiotherapy and hydrotherapy but they did not do anything. Mr Pavlis said he also went to a pain management consultant early last year who agreed that everything had been done to ease the pain.
Mr Pavlis described the effect of his back pain. He said it affects every aspect of his normal daily living: he cannot put his doona cover on without pain; he cannot do housework without pain; when cooking his meals he is in pain after standing for 15 minutes; he can only walk five to six hundred metres before collapsing; and he cannot even wipe himself after going to the toilet. Mr Pavlis said that he can walk for about 10 minutes before the pain starts and he has to sit down and rest. He said he can stand for about 20 minutes before his legs start to go numb. And he can sit for about half an hour.
Mr Pavlis said he lived by himself. He cooks twice a week and receives food deliveries on other days. He vacuums one room at a time. He washes his clothes in a washing machine and dries them in a dryer as he cannot hang them out on a line. He said he drove in to the Tribunal for the hearing, which took about 45 minutes. Mr Pavlis said he can bend at the waist, turn his neck to drive, pick up a glass of water from the table and lift his arms to a reasonable height.
In regard to his psychological condition, Mr Pavlis said that he has contemplated suicide. He has panic attacks where he curls up into a little ball and breaks down crying. He said it affects his concentration and he has no motivation. Mr Pavlis said I would be as good as gold, like if it wasn’t for me back .
Mr Pavlis said he has been seeing a psychologist, Mr Mohammad, for a couple of years. He said he takes Cymbalta capsules and an anti-depressant medication, which seem to be working effectively. He said Mr Mohammad has got him under control. He goes in once a month to chat to him. Mr Pavlis explained that he refuses to see a psychiatrist or clinical psychologist because last time I did they locked me up for my aggressive tendencies. That was back in 2000.
Mr Shelley asked Mr Pavlis about his lung problems. Mr Pavlis said his emphysema was diagnosed a few years ago. He said the effect is a shortness of breath for which he uses inhalers about five times a day. He said he has not seen a specialist but has had an x-ray of his lungs and blood tests. Mr Pavlis said there is no more that can be done. He has reduced his smoking to six to 10 cigarettes a day.
Mr Shelley said that Dr Andrianakis had identified a weight problem. Mr Pavlis said his weight was stable. He said he eats healthy food but cannot exercise because of his back problem. He said that in 2010 he saw a dietician who was satisfied with the food he ate. Mr Pavlis said that his weight would not be a problem if his back was not a problem.
Mr Pavlis agreed with Mr Shelley that he had participated in Centrelink disability employment services from 6 April 2011 until October 2012 but has had no success.
Mr Shelley asked Mr Pavlis about the JCA report, in which Mr Pavlis was assessed as being able to work between eight and 14 hours per week, and with some weight loss, between 15 and 22 hours per week. Mr Pavlis disagreed with the report, saying he cannot even stand at his sink for 15 to 20 minutes without back pain.
Mrs Pavlis
Mrs Pavlis spoke of the times she had seen her son in such pain that he could not get up from his bed or the floor. She said that she and her husband helped her son by such things as buying tyres for his car and paying for its service. Mrs Pavlis said that she could see that her son is stressed because he is embarrassed by taking money from his parents. She said he is not lazy; he is sick and has real pain.
SUBMISSIONS
Mr Shelley
Mr Shelley submitted that the decision should be affirmed as set out in the respondent’s Statement of Facts and Contentions. He contended that at the qualification period Mr Pavlis had a number of medical conditions but only one could be assessed as fully diagnosed, treated and stabilised. That was his back complaint; which was assessed at 10 impairment points. Mr Shelley referred to the reports relevant to the back complaint:
·Dr Andrianakis’ report dated 27 January 2012, which records that Mr Pavlis has poor mobility and that he cannot walk, stand or sit for long periods.
·Dr Andrianakis’ report of 13 February 2012, which says that Mr Pavlis’ back complaint was well established, fully diagnosed and fully treated.
·The JCA report, which found that the back condition, diagnosed as an L5/S1 degenerative disease, was fully diagnosed, treated and stabilised, and properly assessed at 10 impairment points.
·Dr Andrianakis’ reports of 3 August 2012 and 15 October 2012, which reiterated that the back condition is well established and said that the condition should be assessed at 20 impairment points under Table 4 of the Impairment Tables.
·Dr Roger Bernard’s report of 6 August 2012, which says Mr Pavlis has severe facet joint degeneration and extreme functional impairment, including an inability to perform activities involving spinal function and an inability to bend or turn his trunk or neck.
·Dr Hiluf Gebrehiwot’s report of 23 October 2012, in which he makes identical impairment assessments as those of Dr Andrianakis.
Mr Shelley compared those reports with Mr Pavlis’ evidence in this hearing and to that recorded in the SSAT decision. Before the SSAT, Mr Pavlis had said that he can perform overhead activities such as getting things out of the cupboard, he can turn his head to look behind him, he can bend forward to pick something off a table and he can remain seated for 30 to 40 minutes, depending on his seating arrangements. Mr Shelley submitted that the criteria used by Dr Andrianakis, in his assessment of 20 impairment points, are out of step with Mr Pavlis’ presentation at the hearing. He also submitted also that the assessments by Dr Bernard and Dr Gebrehiwot were inconsistent with the evidence and in any event they post-date the qualification period. Mr Shelley submitted that the JCA assessment should be preferred.
In regard to Mr Pavlis’ mental health conditions, Mr Shelley referred to the report by Dr Bernard, a general practitioner, of 6 August 2012 and the reports by Dr Mohammad, a psychologist, of 2 February 2012 and 6 September 2012. Mr Shelley referred to Table 5 of the Impairment Tables, which provides that for a mental health condition to be diagnosed and assessed, it must have been diagnosed by a psychiatrist or an appropriately qualified medical practitioner with evidence from a clinical psychologist. Mr Shelley submitted that, as Mr Pavlis would not see a psychiatrist or a clinical psychologist, his mental health condition cannot be assessed for an impairment rating. In the alternative, Mr Shelley submitted that the condition could not be considered as being fully treated as he had not been referred to a psychiatrist for optimal management of the condition.
In regard to Mr Pavlis’ lung condition, Mr Shelley submitted that, in the absence of any specialist referral, it should not be considered to be fully diagnosed, treated and stabilised. In the alternative, Mr Shelley contended that the condition did not result in an assessable impairment. He relied on Dr Andrianakis’s report of 27 January 2012, in which the lung condition was listed amongst those which were well-managed and caused minimal or limited impact on his ability to function. Mr Shelley contended that this report should be preferred as it was contemporaneous with the qualification period, unlike the later reports which post-date the qualification period.
In regard to Mr Pavlis’ weight, Mr Shelley again relied on Dr Andrianakis’s report of 27 January 2012, in which the condition of obesity was listed as being well-managed and causing minimal or limited impact on his ability to function. Mr Shelley contended that this assessment was consistent with Mr Pavlis’ oral evidence that but for his back condition, his weight would not be a problem. Mr Shelley also noted that the JCA report found that the condition was not fully diagnosed, treated and stabilised as Mr Pavlis had not exhausted all treatment options.
Mr Shelley made the same submissions in regard to Mr Pavlis’ conditions of hypertension and hypercholesterolemia. He said that Mr Pavlis acknowledged in his evidence that the conditions do not cause him a problem as long as he takes his medication. Mr Shelley submitted that this was consistent with the reports of Dr Andrianakis and Dr Gebrehiwot.
In regard to Mr Pavlis’ heart condition, for which he attended hospital in July 2012, Mr Shelley submitted that it should be uncontentious that it was not an assessable condition during the qualification period.
Mr Shelley summarised his submissions, contending that the spinal condition is the only one that can be assessed and that results in 10 impairment points. The other conditions were not fully diagnosed, treated or stabilised and did not result in an impairment rating of 20 or more impairment points in the qualification period. Mr Shelley submitted that if the Tribunal found that Mr Pavlis’ impairments resulted in 20 or more impairment points, then Mr Pavlis did not meet the continuing inability to work criteria. For this submission, Mr Shelley relied on the JCA assessment which indicated that Mr Pavlis would be able to work 15 hours or more per week. Finally, Mr Shelley contended that if Mr Pavlis did not have an impairment rating of 20 points, he was not severely disabled; and he could not meet the continuing inability to work criteria, as he did not participate in a support program for 18 months in the three-year period prior to making the claim.
Mr Pavlis
In his response, Mr Pavlis said that he did not agree that he could put his hand above his head and turn his neck three-quarters of the way around each side. He did not agree that he had full mobility. Mr Pavlis said he was legitimately sick and he was not trying to take advantage of the government. He had been a hard worker all his life.
CONSIDERATION
Lower Back Pain
In considering this condition, I took note of the following reports which were prepared within the qualifying period.
In his report dated 5 August 2010, Mr James King, neurosurgeon, records a two-year history of lower back pain. Mr King records Mr Pavlis as being unable to stand for prolonged periods and that he has a mild restriction of lumbar spine movement.
In his report of 27 January 2012, Dr Andrianakis diagnosed lower back pain; severe L5-S1 degenerative disease; long history of lower back pains; poor mobility / no prolonged standing walking/sitting; tender L5-S1. He recorded Nil future/planned treatment and expected the effect of the condition on Mr Pavlis’ ability to function to deteriorate over the next two years.
The JCA report records Mr Pavlis’ condition as Spinal Disorder – Other and describes it as Permanent, fully diagnosed, fully treated and fully stabilised. The report recommends an impairment rating of 10 points from the Impairment Tables.
In a further report dated 13 February 2012, Dr Andrianakis recorded Mr Pavlis’ back pain as being well established, fully diagnosed, fully treated and unlikely to improve.
The Impairment Tables show the following descriptor for an assessment of 10 impairment points:
There is a moderate functional impact on activities involving spinal function.(1) 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).
The Impairment Table descriptors for 20 impairment points are:
There is a severe functional impact on activities involving spinal function.(1) The person is unable to:(a) perform any overhead activities; or(b) turn their head, or bend their neck, without moving their trunk; or(c) bend forward to pick up a light object from a desk or table; or(d) remain seated for at least 10 minutes.
In his report of 27 January 2012, Dr Andrianakis assigned a rating of 20 impairment points to the collection of conditions. He did not break down the assessment into components for each condition. Accordingly, I cannot apply his assessment to the Impairment Tables. The only other assessment made by an appropriately qualified medical practitioner and relevant to the qualification period is that contained in the JCA report. That report recommends a rating of 10 impairment points.
Mr Pavlis’ own evidence was that he can perform overhead activities such as getting things out of the cupboard, he can turn his head to look behind him, he can bend forward to pick something off a table and he can remain seated for 30 minutes depending on his seating arrangements. Mr Pavlis testified also that he can drive for about 30 minutes and had driven in to the hearing, taking about 45 minutes for the trip.
It is clear that Mr Pavlis does not meet the criteria for 20 impairment points. His evidence is, however, consistent with the criteria for 10 impairment points. Accordingly, I accept the assessment contained in the JCA report and find that Mr Pavlis’ lower back condition attracts an impairment rating of 10 points in accordance with Table 4 of the Impairment Tables.
Depression
In regard to Mr Pavlis’ condition of depression, I had regard, firstly, to the reports which were prepared within the qualifying period. In his report of 27 January 2012, Dr Andrianakis included depression within the collection of conditions for which he assessed a rating of 20 impairment points. As found above, I am not able to apply this overall assessment to the Impairment Tables.
In his report dated 2 February 2012, Dr Mohammad stated that Mr Pavlis was unable to engage in gainful employment but he did not refer to the Impairment Tables nor assign an impairment rating.
The JCA report records that the condition is not considered to be fully diagnosed, treated and stabilised as the client’s diagnosis of this condition has not been confirmed by a Clinical Psychologist or a Psychiatrist. I note Mr Pavlis’ evidence that he refuses to attend a clinical psychologist or a psychiatrist.
Table 5 of the Impairment Tables requires the diagnosis to be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist). Mr Pavlis’ evidence was emphatic that he would not see a clinical psychologist or a psychiatrist. I accept the assessment in the JCA report that the condition is not fully diagnosed, treated and stabilised and I find accordingly. As a consequence, I find that Mr Pavlis’ depression cannot be assigned a rating from the Impairment Tables.
Lung Dysfunction
In his report of 27 January 2012, Dr Andrianakis included lung fibrosis in a list of conditions that are generally well-managed and cause minimal or limited impact on Mr Pavlis’ ability to function. The JCA report recorded a fully diagnosed condition of Respiratory Disorder – Other, which was described as Lung Fibrosis, with no reported treatment. The JCA report provided no recommended impairment rating for this condition.
Mr Pavlis’ evidence was that he had an x-ray of his lungs and blood tests, but had not been referred to a specialist for his lung condition. Mr Pavlis said also that he was still planning to give up smoking and that he has puffers and medications. He still smokes between six and twelve cigarettes a day.
Mr Pavlis has not been seen by a specialist in regard to this condition. He does not have a prescribed treatment regime. There is no evidence that the condition is fully treated. The report of Dr Andrianakis and the JCA report are consistent in assigning no impairment rating for this condition. Accordingly, I find that this condition is not fully treated and cannot be assigned an impairment rating.
Obesity
In his report of 27 January 2012, Dr Andrianakis includes obesity in a list of conditions that are generally well-managed and cause minimal or limited impact on Mr Pavlis’ ability to function. The JCA report states the condition is not fully treated and stabilised as Mr Pavlis has not exhausted all treatment options. Mr Pavlis’ evidence was that he had seen a dietician in 2010 who was satisfied with the food he ate. Mr Pavlis said further that his weight would not be a problem but for his back problem.
I accept Mr Pavlis’ evidence that he has seen a dietician, who prescribed no further treatment. In that respect, I do not accept the statement in the JCA report that the condition is not fully diagnosed, treated and stabilised. However, there is no evidence that the condition results in an assessable impairment. Dr Andrianakis’ assessment is that the condition does not impair Mr Pavlis’ functioning in any significant way. As a result, I find that Mr Pavlis’ obesity attracts a zero impairment rating.
Hypertension and Hypercholesterolemia
In his report of 27 January 2012, Dr Andrianakis included both conditions in a list of conditions that are generally well-managed and cause minimal or limited impact on Mr Pavlis’ ability to function. The JCA report assesses both conditions as being fully diagnosed, fully treated and fully stabilised and recommends an impairment rating of zero for both conditions. I find accordingly.
Other Medical Reports
In considering each of the conditions I noted the following reports.
·Dr Elizabeth Bond dated 4 July 2012;
·Dr Andrianakis’ assessment dated 2 August 2012;
·Dr Andrianakis dated 3 August 2102;
·Dr Bernard dated 6 August 2012;
·Dr Bernard dated 6 September 2012;
·Dr Mohammad dated 6 September 2012;
·Dr Andrianakis dated 28 September 2012;
·Dr Andrianakis assessment of 15 October 2012;
·Dr Andrianakis dated 15 October 2012;
·Dr Gebrehiwot dated 23 October 2012; and
·Dr Gebrehiwot assessment dated 23 October 2012.
In each case, the reports were prepared outside the qualifying period and they contain no assessments that relate to the qualifying period. Accordingly, I find them to be of no assistance in this matter. They may be relevant should Mr Pavlis submit a new DSP application.
After considering each of Mr Pavlis’ conditions, only one condition, his lower back pain, attracts an impairment rating, that being 10 impairment points.
Accordingly, I find that within the qualifying period Mr Pavlis did suffer an impairment thus satisfying section 94(1)(a) of the Act. However, his impairment did not attract 20 points or more under the Impairment Tables (section 94(1)(b) of the Act). As Mr Pavlis’ conditions did not attract 20 points or more, there is no need for me to consider his continuing ability to work (section 94(1)(c) of the Act).
I find that Mr Pavlis did not satisfy the provisions of section 94(1) of the Act. Accordingly, I find that during the qualifying period Mr Pavlis was not qualified to receive the DSP. Accordingly, I affirm the decision under review.
In making this decision, I emphasise that it is in relation only to the qualifying period. A new application would be considered in light of the evidence relating to his current situation.
I certify that the preceding 58 (fifty -eight) paragraphs are a true copy of the reasons for the decision herein of Mr Conrad Ermert, Member. .......[sgd].................................................................
S Herath, Associate
Dated 28 February 2013
Date of hearing 14 January 2012 Applicant In person Advocate for the Respondent Mr Andrew Shelley Solicitors for the Respondent Sparke Helmore Lawyers
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