Radmila Kuric and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2013] AATA 219
•12 April 2013
[2013] AATA 219
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/1647
Re
Radmila Kuric
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal The Hon R J Groom AO (Deputy President)
Date 12 April 2013 Place Hobart Decision Summary
The decision under review is set aside. The applicant is to be paid Disability Support Pension with effect from 3 December 2010.
........................................................................
Deputy President
CATCHWORDS
Social Security - disability support pension - International Social Security Agreement between Australia and Croatia - whether applicant "severely disabled" - applicant qualified to received disability support pension - decision under review set aside
LEGISLATION
Social Security Act 1991 ss23 and 94
Social Security (Administration) Act 1999 clauses 3 and 4 of schedule 2
Social Security (International Agreements) Act 1999 schedule 16Guide to the Social Security Law 1.1.s.110
CASES
Jackson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 669
REASONS FOR DECISION
INTRODUCTION
This is a review of a decision of the Social Security Appeals Tribunal (“SSAT”) made on the 2 April 2012. That decision affirmed an earlier decision of Centrelink rejecting Mrs Kuric’s claim for a Disability Support Pension (“DSP”).
The relevant law is set out in the Social Security Act 1991 (“the Act”), the Social Security (Administration) Act 1999 (“The Administration Act”) and the Social Security(International Agreements) Act 1999 (“the IA Act”).
Mrs Kuric is 54 years of age and lives in Croatia. She is an Australian citizen and has attained 10 years and 2 months of “Australian working life residence”.
Australia has entered into an International Social Security Agreement with Croatia (“the Agreement”). The Agreement appears in schedule 16 of the IA Act.
The Agreement with Croatia provides that a DSP can only be paid if the person concerned is “severely disabled”.
THE ISSUE
(a)Section 94 of the Act sets out the requirements for DSP. Except for the issue in (b) below Mrs Kuric satisfies all of those requirements including the requirement that she must have an impairment rating of 20 points or more under the Impairment Tables.
(b)The only issue in contention is whether Mrs Kuric was “severely disabled” at the date of her claim for DSP or within 13 weeks of that date (see clauses 3 and 4 of schedule 2 of the Administration Act). If Mrs Kuric was “severely disabled” at that time then she qualifies for a DSP under the Agreement.
(c)The test for “severely disabled” is more stringent than that for “continuing inability to work” under section 94 (2) of the Act. If it is established that Mrs Kuric is “severely disabled” then it follows that she also satisfies the “continuing inability to work” test in the Act.
MEANING OF “SEVERELY DISABLED”
The Agreement itself does not define “severely disabled”. (It is interesting to note that the term is expressly defined in some other Agreements under the IA Act e.g. with New Zealand (see schedule 3 of the IA Act)). The Agreement does however provide in article 1 (2) :
“Unless the context otherwise requires, any term not defined in this Agreement has the meaning assigned to it in the applicable legislation”.
Section 23 (4B) of the Act provides as follows :
“(4B) For the purposes of this Act, a person is severely disabled if :
(a) a physical impairment, a psychiatric impairment, an intellectual impairment, or 2 or all of such impairments, of the person make the person, without taking into account any other factor, totally unable :
(i) to work for at least the next 2 years; and
(ii) unable to benefit within the next 2 years from participation in a program of assistance or a rehabilitation program; or
(b) the person is permanently blind”.
There is no suggestion in this application that Mrs Kuric is permanently blind.
It is necessary also to consider the Guide to Social Security Law (“the Guide”). The Guide provides at 1.1.s.110 that for a person to be severely disabled the person’s impairment must prevent him or her from doing any work for 8 hours a week or more for the next 2 years and benefiting from training, education or rehabilitation to the extent of being able within 2 years to work at least 8 hours a week.
THE EVIDENCE
Medical Conditions Suffered by the Applicant
Mrs Kuric was diagnosed with right breast cancer in 2007. Her treatment included a mastectomy as well as radiotherapy, chemotherapy and immunotherapy. In 2009 she had breast reconstruction surgery. At the present time it would appear that the breast cancer is in remission.
Following the removal, during the surgery, of underarm lymph nodes Mrs Kuric has suffered a significant impairment of the right side and in particular the right shoulder and right arm. Mrs Kuric is right handed. It is conceded by the respondent that the impairment rating for the condition of the right arm and shoulder is 20 points under impairment table 3.
As mentioned at paragraph 22 of the SSAT decision Dr Grgas expressed the opinion that there was “demonstrable loss of strength, mobility, co-ordination, dexterity and/or sensation of the upper limb which causes significant interference with hand function or manual handling”.
At T10 page 63 Dr Grgas reports (as interpreted from the Croation language):
“She is complaining of impediments when using her right hand (dominant side) – tension, pain and weakness. During physical exertion she says her right hand becomes numb and she feels pain in her spine. Sensations in her upper right arm and in shoulder are diminished….”
And further,
“She complains of tension, pain, and weakness in her right arm (dominant side). Physical exertion causes swelling and numbness in her right arm and pain in her entire spine. Sensation in her right upper arm and shoulder is diminished”.
Dr Nola, surgeon, reported on the 11 July 2011 that:
“On examination she displays limited movement in the shoulder joint with significant pain. She is also complaining of frequent swelling and pins and needles through the right arm and hands. The patient is very frightened, she gives the impression of a depressed person/fear of recurrence of the illness”. (T13 page 83).
Mrs Kuric explained that her right arm was very painful and that all of her “right side” was painful too. Her arm swells up when being used and her fingers also become swollen and numb. Mrs Kuric said the pain prevents her, for example, from doing her hair or making the bed. She explained she needs people to help her with basic household tasks.
Although not relevant in this application it is noted that Mrs Kuric also suffers from a depressive order which was diagnosed in March 2012 by a Croatian psychiatrist Dr Bilic as a “severe depressive episode without psychotic symptoms” (T15 page 93). Mrs Kuric received psychiatric treatment as long ago as 1983 after “psychological trauma”. She experiences changes of mood and “…easily bursts into tears and feels depressed”.
In her oral evidence to the Tribunal Mrs Kuric said that she had been treated for depression and attended hospital for that treatment. She said she was “scared” and always “nervous and afraid of everybody”.
Dr Grgas reports at T10 page 64 :
“Anxious, worried about her disease and prognosis, sleeps badly, waking up stressed, hot, scared and distressed”.
And further,
“Because of constant anxiety and depression her social interactions are hampered”.
The Applicant’s Ability to Undertake Work
The respondent places considerable reliance on the Job Capacity Assessment Report (“JCA Report”) submitted on the 12 September 2012.
The JCA Report was prepared at Tweeds Heads in Queensland by “Penny” a Rehabilitation Counsellor. “Chris” and “Lara” are also named as “Contributing Assessors”. None of these Assessors was called to give oral evidence at the hearing.
It would appear from the evidence that the JCA Report was essentially based upon medical reports by Dr Bilik, Dr Nola and Dr Grgas as well as the report of 25 March 2011 prepared by a “Treating Health Professional” (see page 3 of the JCA Report). Mrs Kuric said she was not interviewed for the purpose of preparing this report.
It is noted that the “shoulder and upper arm disorder” is given a rating of 10 points in the JCA Report which is below the rating of 20 points provided in the earlier report of the “Disability Officer” (T11). As mentioned a rating of 20 points is conceded by the respondent in these proceedings.
The JCA Report describes the impact of Mrs Kuric’s impairment on her hand function and manual handling ability as “a moderate impact”. This is in conflict with the reported opinion of Dr Grgas that the impairment causes “significant interference with hand function and manual handling” (T2 paragraph 22).
The Tribunal finds Mrs Kuric to be a frank and credible witness. She said in her oral evidence that “I can’t do any work at all”. She explained that she was quite unable to do the simple tasks required in everyday life such as making her bed or doing her hair. The value of the JCA Report and also the report of the Disability Officer (T11) is diminished because they were prepared remotely without the advantage of any face to face contact or interview. Those reports purport to be based on the reports of other experts however they do not accurately reflect the substance of those other reports.
In contrast the Tribunal has before it Mrs Kuric’s own direct oral evidence about her work capacity as well as the unambiguous opinion of two medical practitioners Dr Grgas and also Dr Bilic.
Dr Grgas is a Croation specialist medical practitioner. He provided a detailed Medical Assessment Report for the stated purpose of assessing Mrs Kuric’s entitlement to the DSP under the Agreement between Australia and Croatia. Dr Grgas was provided with detailed written instructions on the requirements for a DSP under the Agreement. (See T documents page 68). Dr Grgas concluded (see T10 page 64) :
“From the 23/3/2009 the insured is totally incapacitated and unable to perform any systematic work or work for a living”.
Although Dr Bilic has qualified as a psychiatrist it is reasonable to assume that he also in past years has had general medical experience. His firm opinion is :
“Work capacity is permanently lost…” (T15 page 94).
IS THE APPLICANT ‘SEVERELY DISABLED”?
The test in section 94 of the Act is “continuing inability to work”. A person has a continuing inability to work if they cannot work 15 or more hours per week within the next 2 years without support and he or she also cannot be retrained or retraining is unlikely to enable the person to work 15 hours per week or more within 2 years.
As has already been explained that test is less stringent than the applicable test used in establishing whether a person is severely disabled. As mentioned above the Guide provides that the impairment must prevent the person from doing any work for 8 hours per week rather than 15 hours for the “continuing inability to work” test.
The Tribunal finds the opinion of Dr Grgas to be particularly persuasive. It is more reliable than the JCA Report or the report of the Disability Officer or indeed any other evidence. Dr Grgas had the opportunity to interview Mrs Kuric and to make a detailed assessment of her medical condition and her work capacity. It accepts as accurate Dr Grgas’s clearly expressed opinion that Mrs Kuric is unable to perform “any kind of work” and that she has been totally incapacitated for work since 23 March 2009.
CONCLUSION
The Tribunal finds that Mrs Kuric, on and from the date of her claim for DSP, has been unable to perform any work for 8 hours per week or more for the next 2 years and would not benefit within 2 years from participating in a program of assistance or a rehabilitation program.
The Tribunal concludes that Mrs Kuric’s incapacity for work has not changed since she lodged her claim for DSP. This is not a case where the applicant’s condition has worsened and the person has become qualified for a DSP only after the 13 week qualifying period has expired. Mrs Kuric was qualified for the DSP on the date she lodged her claim (see Jackson and Secretary, Department of Families, Housing Community Services and Indigenous Affairs [2011] AATA 669).
Mrs Kuric’s inability to perform work is a direct result of the impairment to her dominant right arm and shoulder. No other factors such as her psychiatric condition, age, work experience or the employment market, have been taken into account in determining that issue. Her capacity to be rehabilitated or retrained has however been considered as required.
As Mrs Kuric satisfies all of the requirements for a DSP under the Agreement between Australia and Croatia she is entitled to be paid a DSP as from the date of her claim namely the 3 December 2010.
DECISION
The decision under review is set aside. The applicant is to be paid Disability Support Pension with effect from 3 December 2010.
I certify that the preceding 35 (thirty five) paragraphs are a true copy of the reasons for the decision herein of ........................................................................
Administrative Assistant
Dated
Date(s) of hearing 12 February 2013 Applicant In person Solicitors for the Respondent Mr Brian Sparkes, Program Litigation and Review Branch
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