Radosav Bubanja and Secretary, Department of Social Services
[2014] AATA 393
[2014] AATA 393
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/5230
Re
Radosav Bubanja
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Deputy President J W Constance
Date 20 June 2014 Place Melbourne The decision under review made on 18 September 2013, being the decision to refuse Mr Bubanja’s application for a Disability Support Pension, is affirmed.
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Deputy President J W Constance
CATCHWORDS
SOCIAL SECURITY – disability support pension – depression – ischaemic heart disease – left shoulder pain – varicose veins – sinusitis – hernia - whether conditions fully diagnosed, treated and stabilised – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth) s 42 and Sch 2
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 cl 6(4)
REASONS FOR DECISION
Deputy President J W Constance
Mr Bubanja suffers from the following medical conditions:
·depression
·ischaemic heart disease
·left shoulder pain
·varicose veins
·sinusitis
·hernia.
He seeks review of the Secretary’s decision to refuse his application for disability support pension under the Social Security Act 1991 (Cth) (“the Act”).
Mr Bubanja applied for the pension on 24 January 2013. For his application to succeed, he had to qualify for the pension on that date or within 13 weeks, that is, by 25 April 2013: s.42 and Schedule 2 of the Social Security (Administration) Act 1999, (“the Administration Act”). I will refer to this period as “the relevant period”.
To qualify for the pension during the relevant period, Mr Bubanja had to satisfy the following criteria in s 94 of the Act:
(i)a physical, intellectual or psychiatric impairment, or impairments, which are rated at 20 or more points according to the Impairment Tables in the Act; and
(ii)a “continuing inability to work” as defined in the Act.
The first question, therefore, is whether Mr Bubanja conditions rated 20 or more points on the Impairment Tables during the period 24 January 2013 to 25 April 2013. If not, then his application cannot succeed.
The Impairment Tables
The Impairment Tables are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011.
An impairment rating can only be assigned if:
(a)the condition causing that impairment is permanent; and
(b)the impairment is more likely than not to persist for more than two years.
A condition is considered “permanent” if it has been fully diagnosed by an appropriately qualified medical practitioner, it has been fully treated and fully stabilised and it is more likely than not to persist for more than two years: cl 6(4).
In deciding whether a condition has been “fully diagnosed” and “fully treated”, the following must be considered:
(a)whether there is corroborating evidence of the condition;
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next two years.
A condition is “fully stabilised” if:
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i)significant functional improvement to a level enabling the person to undertake work in the next two years is not expected to result, even if the person undertakes reasonable treatment; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
“Reasonable treatment” means treatment that:
(a)is available at a location reasonably accessible to the person;
(b)is at a reasonable cost;
(c)can reliably be expected to result in a substantial improvement in functional capacity;
(d)is regularly undertaken or performed;
(e)has a high success rate, and
(f)carries a low risk to the person.
MR BUBANJA’S MEDICAL CONDITIONS
The medical evidence concerning Mr Bubanja’s medical conditions comprises:
(i)Medical report dated 15 February 2013 by Dr Sulava,[1] his general practitioner at the time;
(ii)Medical report dated 27 May 2013 by Dr Sulava.[2]
[1] Exhibit R1, pp. 56-65.
[2] Exhibit R1, pp. 91-100.
Centrelink has provided Job Capacity Assessment reports dated 28 February 2013[3] and 5 June 2013[4].
[3] Exhibit R1, pp.66-72.
[4] Exhibit R1, pp.79-86.
Some of the medical reports and Job Capacity Assessments pre-date Mr Bubanja’s application for the pension but they provide some relevant background information about his conditions.
In his claim for the pension, Mr Bubanja listed his conditions as:
(a)Heart problem – blocked;
(b)Left shoulder, torn ligament;
(c)Varicose veins – right leg, blocked veins.[5]
[5] Exhibit R1 p.25.
In contentions filed in the Tribunal the Secretary has addressed the remaining conditions referred to at the beginning of these reasons and I will also consider these. They are:
·depression;
·sinusitis;
·hernia.
I will deal with each of Mr Bubanja’s medical conditions in turn.
Ischaemic heart disease
Mr Bubanja lived in Macedonia for the 18 months prior to making his application. While in Macedonia he took prescribed medication for his heart condition and was hospitalised for an unknown period. He was not offered treatment other than medication while in Macedonia.
In evidence before the Social Security Appeals Tribunal[6] in September 2013 Mr Bubanja said that he had suffered tightness in his chest for some years and that he had seen a cardiologist in 2003. He was told that his condition was not severe. He consulted Dr Irons in 2013 who prescribed medication. No further treatment was given. Mr Bubanja does not have a further appointment to see Dr Irons. He has a spray and patches to use when he suffers chest tightness but he was unable to say how often he uses these medications.
[6] Exhibit R1 p.6.
In February 2013 Dr Sulava reported that following the consultation with Dr Irons any further scheduled or proposed treatment of Mr Bubanja’s treatment was “pending cardiologist’s opinion. YEARS ? stenting.” [7]
[7] Exhibit R1 p.60.
On the basis of this evidence, which is all I have before me, I am not satisfied that this condition was fully treated and stabilised during the relevant period.
Left shoulder condition
In his report of 15 February 2013 Dr Sulava stated that the diagnosis of this condition was “L. shoulder supraspinatus reas complete tear”[8] which had been confirmed by radiological examination. Future treatment was said to be possible referral to a specialist or physiotherapist. On 27 May 2013 Dr Sulava reported that Mr Bubanja refused further treatment by reason of the poor final outcome outlook.[9]
[8] Exhibit R1 p.62.
[9] Exhibit R1, p.98.
In view of Dr Sulava’s report I am unable to be satisfied that Mr Bubanja’s shoulder condition has been fully stabilised and fully treated.
Hernia, varicose veins and sinusitis
On 15 February 2013 Dr Sulava reported that these were medical conditions that were generally well managed and had limited impact on his ability to function. Mr Bubanja gave evidence that following an operation to repair the hernia, “it seems to be alright.” He said that varicose veins limit his ability to walk for long periods and he suffers pain in his left leg. He takes medication to relieve his sinus condition.
I accept the argument put by Counsel for the Secretary that on the basis of this evidence an impairment rating cannot be assigned to any of these conditions in the relevant period.
Depression
Dr Sulava reported on 15 February 2013 that the depression suffered by Mr Bubanja was generally well managed and caused minimal or limited impact on his ability to function. He repeated this view in his report of 27 May 2013. Mr Bubanja said that he took medication prescribed by Dr Sulava.
It was argued on behalf of the Secretary that the diagnosis of depression must be made by a clinical psychologist or a psychiatrist in accordance with the Guide to the Impairment Tables. There is no such evidence before me. In the absence of such evidence I cannot be satisfied that this condition was fully diagnosed and stabilized in the relevant period. In any event, based on Dr Sulava’s reports I cannot assign an impairment rating to the condition.
CONCLUSION
As Mr Bubanja’s conditions were either not fully diagnosed, or not fully treated and stabilised during the relevant period, or had minimal, if any, effect on his ability to function during that period, they did not rate 20 or more points on the Impairment Tables. His claim for the pension on 24 January 2013 cannot succeed because he did not qualify at that time or within the following 13 weeks.
As Mr Bubanja’s impairments do not rate 20 or more points on the Impairment Tables, it is not necessary for me to consider whether he also had a “continuing inability to work”.
As was explained to Mr Bubanja during the hearing by Counsel for the Secretary he can reapply for the pension at any time based on the evidence then available.
The decision under review made on 18 September 2013, being the decision to refuse Mr Bubanja’s application for a Disability Support Pension, will be affirmed.
I certify that the preceding 31 (thirty-one) paragraphs are a true copy of the reasons for the decision herein of .............[sgd]...........................
Administrative Assistant
Dated 20 June 2014
Date(s) of hearing 11 April 2014 Applicant In person Advocate for the Respondent Mr T de Uray
Key Legal Topics
Areas of Law
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Social Security Law
Legal Concepts
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Impairment Rating
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Continuing Inability to Work
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Reapplication
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