Re Augustynski and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2013] AATA 507
•18 July 2013
[2013] AATA 507
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/2082
Re
STEPHAN AUGUSTYNSKI
APPLICANT
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT
DECISION
Tribunal Dr P McDermott RFD, Senior Member
Date 18 July 2013 Place Brisbane The Tribunal affirms the decision under review.
.....................[Sgd]...................................................
Dr P McDermott RFD, Senior Member
CATCHWORDS
SOCIAL SECURITY – Pensions, benefits and allowances – Disability support pension – Physical, intellectual or psychiatric impairment – Impairment rating of 20 points or more required – Impairment Tables – Decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth) Sch 2
CASES
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Jansen (2008) 100 ALD 496
SECONDARY MATERIALS
Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Dr P McDermott RFD, Senior Member
INTRODUCTION
I have to determine whether Mr Stephan Augustynski (“the applicant”) is entitled to receive disability support pension. In making a decision about his eligibility for that benefit, I have to examine whether he had medical conditions which impaired his ability to work at the date of his claim or within a period of 13 weeks following the date of his claim.
PRIOR DECISIONS
On 25 October 2011, the applicant made contact with Centrelink about making a claim for disability support pension. On 28 October 2011, the applicant lodged his claim form for disability support pension.
On 2 November 2011, Centrelink made a decision to reject his claim for disability support pension. On 6 January 2012, the original decision maker reconsidered and affirmed the decision. On 23 January 2012, the decision was affirmed by an authorised review officer.
On 27 April 2012, the Social Security Appeals Tribunal affirmed the decision of Centrelink that the applicant was not entitled to disability support pension.
On 23 May 2012, the applicant made an application for review to this Tribunal.
ELIGIBITY CRITERIA
The entitlement to a disability support pension is conferred by s 94 of the Social Security Act 1991 (Cth) (“the Act”).
A person is qualified for a disability support pension if the person has a physical, intellectual or psychiatric impairment (s 94(1)(a)); and the person’s impairment is of 20 points or more under the Impairment Tables (s 94(1)(b)); and the person has a continuing inability to work (s 94(1)(c)). All of these requirements must be satisfied before a person is entitled to a disability support pension.
In considering whether the applicant had a “continuing inability to work”, I must have regard to the definition in s 94(2) of the Act. That definition requires a claimant to have an impairment which is, of itself, sufficient to prevent a person from doing any work or training within the next two years. In considering whether a claimant has a continuing inability to work the Secretary cannot have regard to the factors in s 94(3) of the Act. The term “work” is defined to be work of at least 15 hours per week, with the wage being at least the relevant minimum wage, and that exists in Australia even if that work is not locally accessible (s 94(5)).
I should mention that there are other provisions in s 94 that the applicant satisfies. He is over the age of 16 years (s 94(1)(d)) and is an Australian resident (s 94 (1)(e)(i)).
IMPAIRMENT TABLES
The Impairment Tables which I am required to apply are in Schedule 1B of the Act, as it was at the time of the applicant's claim for disability support pension and within the 13 week period following.[1]
[1] See s 27 of the Act in regards to the appropriate Impairment Tables to be applied.
It is also necessary for me to have regard to the instructions in the Introduction to the Impairment Tables (“the Introduction”).
Paragraph 2 of the Introduction provides that the Tables “are designed to assess impairment in relation to work”.
Paragraph 4 of the Introduction that a rating is only to be “assigned after a comprehensive history and examination”. The paragraph states that for “a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised”.
Paragraph 5 of the Introduction states that a condition “must be considered to be permanent”. The paragraph states that “once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future”. This will be taken as lasting for more than two years. The paragraph concludes with a statement that a condition may be considered to be fully stabilised “if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years”.
Paragraph 6 of the Introduction states that in order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:
·what treatment or rehabilitation has occurred;
·whether any treatment is still continuing or is planned in the near future;
·whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years.
TIME FOR DETERMINING ELIGIBILITY
At the hearing of this application, I informed the applicant that to be qualified to receive the disability support pension, he must meet the eligibility criteria on 25 October 2011, which is when he made contact with Centrelink about making his claim,[2] or within 13 weeks of that date.[3] In considering this application I am confined to considering the eligibility of the applicant in this 13 week period which ended on 24 January 2012 (“the relevant period”).
[2] In accordance with s 13(1) of the Social Security (Administration) Act 1999 (Cth) the applicant is deemed to have made her claim on the day when she first contacted Centrelink.
[3] Social Security (Administration) Act 1999, Sch 2, cl 4.
TREATING DOCTOR’S REPORT
Centrelink was provided with a medical report by Dr Martin Bull, the applicant’s treating doctor, dated 27 October 2011.[4]
[4] Exhibit A, T-document 14, pp. 54-61.
Dr Bull reported that the condition with the most impact was degenerative osteoarthritis of the lumbar spine and that the condition was diagnosed in 2006. Dr Bull reported that there has been a history of low back pain since 2005 and that scans of the back have confirmed that there is degeneration. Dr Bull indicated that the current symptoms included constant lower back pain, intermittent leg pain – position dependant – difficulty walking/standing. He reported that the treatment for this condition is rest/Voltaren/or Nurofen Plus/ paracetamol. The treating doctor reported that future planned treatment included surgical intervention. The second condition that was listed in the report is osteoarthritis of the left hip. Dr Bull reported that this condition was linked with the back pain of the applicant and was being treated with medication. He reported that future planned treatment included medication as well as a total hip replacement.
Dr Bull also listed conditions which have minimal or limited impact on the ability of the applicant to function. These conditions are “benign prostatic hyperplasia” and “anxiety and depression and stress.”
PSYCHOLOGIST REPORTS
The applicant tendered in evidence two reports from the Alegna Health Centre. In one report dated 30 September 2010,[5] Ms Blunt, a psychologist, stated that the applicant “has been assessed and found to be experiencing symptoms indicative of moderate depression and anxiety”. In another report dated 3 February 2011,[6] Ms Blunt remarked that the applicant has “symptoms suggestive of adjustment disorder with mixed anxiety and depression”.
[5] Exhibit H.
[6] Exhibit I.
MEDICAL SPECIALIST REPORTS
Dr Maxwell Katz, a consultant psychiatrist, provided a number of reports. In one report dated 19 December 2011,[7] Dr Katz stated that the applicant “has developed moderately severe to severe symptoms of anxiety and depression in relation to his circumstances”. Dr Katz stated that the treatment had prevented the applicant from “declining into a major depressive breakdown”. Dr Katz, in a report dated 14 November 2012,[8] stated: “I do not consider that Mr Augustynski’s condition was fully treated and stabilised as at the 25th October 2011 or within 13 weeks of that date”. Dr Katz considered that at the relevant time the assessment of the applicant’s psychological impairment under Table 6 was a rating of 20. Dr Katz considered that at the time of the report that there was an impairment rating of 10 with the applicant then working in a part time capacity with his diagnosed condition.
[7] Exhibit A, T-document 18, pp. 96-98.
[8] Exhibit F.
Since 25 August 2011, Dr Peter Dodd, an orthopaedic surgeon, has provided care to the applicant. Dr Dodd has written a number of reports which are in evidence. In his report of 25 August 2011,[9] he gave support to the applicant for early release of his superannuation because of his mobility problems.
[9] Exhibit A, T-document 10, pp. 44-45.
Dr Dodd, in his report of 27 November 2012, provided a diagnosis of the orthopaedic conditions of the applicant. He reported that the applicant has lumbar disc degeneration in the facet joints at L4/5 but to a lesser extent L3/4: these symptoms became evident first in 2006. He is of the opinion that there is a loss of 30% flexion and extension of the spine. Dr Dodd also diagnosed osteoarthritis of the left hip with symptoms from 2011. He reported that there had not been any recent treatment from a physiotherapist or pain management centre. In his report, Dr Dodd remarked:
I think his lumbar spine condition is affected to a minor extent by his hip condition although he has significant limitation of movement of his left hip. A total hip replacement would result in improvement in his spinal function purely by the fact that more movement would occur in his hip joint. I do not consider that his hip condition as fully treated and stabilised by the 25 October 2011. As mentioned above his hip replacement is likely in the near future. The conditions were not stabilized by 25 October 2013[10] (or within 13 weeks of that date).
Dr Dodd has also assessed the applicant with a 10 point impairment rating for the lumbar spine condition and a 10 point impairment rating for the hip condition.
[10] I assume that this date is intended to be a reference to 23 October 2011 as this is the date in the letter of enquiry from Centrelink which contained the following question: “If you consider that this condition was fully diagnosed, treated and stabilised as at 25 October 2011 (or within 13 weeks of that date), what is your assessment of his impairment under Table 20 at the relevant time?” – see respondent’s Statement of Facts, Issues and Contentions.
WORK CAPACITY ASSESSMENT REPORT
On 30 December 2011 a Job Capacity Assessment Report was completed Eyup Kose, a registered psychiatrist.[11] In that report, several medical conditions were set out for the applicant. In regards to his condition of degenerative osteoarthritis of the lumbar spine, the assessor did not consider an impairment rating as the condition had not been fully treated and stabilised due to the possibility of future surgical treatment. The assessor also did not consider an impairment rating for the applicant’s depression as it was considered not to be fully stabilised and temporary. The applicant was assessed as having a baseline work capacity 15-22 hours per week, and within the next two years of having a work capacity of 15-22 hours per week with intervention.
[11] Exhibit A, T-document 19, pp. 99-103.
CONSIDERATION
I am satisfied that the applicant has a physical, intellectual or psychiatric impairment for the purpose of the Act (s 94(1)(a)). There is no issue that the applicant has physical impairments which are his orthopaedic conditions. Dr Dodd has reported that the applicant has lumbar disc degeneration in the facet joints of his spine as well as osteoarthritis of the left hip. The applicant also has a psychiatric impairment which existed in the relevant period. Dr Katz reported that at that time the applicant developed moderately severe to severe symptoms of anxiety and depression. I am satisfied that these impairments were in existence in the relevant period.
I have to consider whether the orthopaedic conditions of the applicant, being the spine, left hip and psychological conditions, are such that they can assigned an impairment rating of 20 points or more under the Impairment Tables (s 94(1)(b)). Paragraph 4 of the Introduction provides that a condition cannot be rated unless the condition is a “fully documented, diagnosed condition which has been investigated, treated and stabilised”.
On the state of the evidence before me I cannot make a finding that each orthopaedic condition has been “treated” in terms of para 4 of the Introduction. Dr Dodd, in his report of 27 November 2012, has stated that hip replacement surgery is likely to occur within two years of the date of the claim. Dr Dodd considers that a total hip replacement would improve not only the hip but would result in improvement in the spinal condition. While Dr Dodd does not expressly state (in terms of para 6 of the Introduction) that there would be “significant functional improvement within the next 2 years”, I am prepared to make an inference that there would be such improvement within that period. Certainly an improvement to the mobility of the hip and spine would be significant.
The applicant has stated that he will not undergo a hip replacement operation and he has given reasons why he will not undergo that surgery. One reason that was given by the applicant was that he would be unable to run, windsurf or play tennis if he underwent a hip replacement operation. The applicant also states that ever since he was a boy he has an aversion to “blood” and “bone”. The applicant quite properly admitted before the Social Security Appeals Tribunal that his fear of the operation was “an irrational fear”.[12]
[12] Exhibit A, T-document 2, p. 5.
Even if I were to accept that the applicant may have an aversion to undergoing a hip replacement operation, I am bound by a decision of the Full Court of the Federal Court of Australia in Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Jansen[13] to hold that this subjective belief of the applicant cannot be regarded as a “medical or other compelling reason” (in terms of para 6 of the Introduction) to not have a hip replacement operation. The Full Court emphasised, at 506, that whether or not a reason is “compelling” is to be determined by the relevant medical officer. Dr Dodd, who is the relevant medical officer, has not provided “a medical or other compelling reason” why the applicant should not have a hip replacement operation. In fact Dr Dodd has provided cogent reasons why the applicant should have a hip replacement operation. Dr Dodd has pointed out that a steroid injection in the left hip joint only offers relief of a temporary nature. Dr Dodd has stated that there would be more movement in the hip joint as well as improvement in the spinal function. At present the applicant has restrictions in the use of his left hip.
[13] (2008) 100 ALD 496 at 506, [38].
I am satisfied that the hip replacement surgery can be regarded as “reasonable treatment” in terms of para 6 of the Introduction. Dr Dodd has reported that a hip replacement surgery would result in improvement both to the hip and the spine. I would regard this to be a substantial improvement to the condition of the applicant. At present there is a significant limitation of movement of the left hip. There was no suggestion by Dr Dodd that the hip replacement surgery was not feasible and accessible and I find that the operation would be feasible and accessible. At the hearing there was a submission by the respondent that hip replacement operations are regularly performed with a high success rate. The applicant did not disagree with this proposition. There was no suggestion by Dr Dodd that there would be any risk in such an operation. In these circumstances I am prepared to find that hip replacement surgery is of a type regularly undertaken or performed, with a high success rate and at low risk to the patient.
I also find that another reason why the orthopaedic conditions cannot be rated is because they have not been “stabilised” in terms of para 4 of the Introduction. Dr Dodd has reported (and I so find) that the orthopaedic conditions “were not stabilized by 25 October 2011[14] (or within 13 weeks of that date).”
[14] See note 10 above.
Dr Dodd has also informed the applicant that his spine condition should be investigated by a neurologist. The applicant has not acted on this recommendation from Dr Dodd because he asserts that this recommendation was made after more than two years of being referred to the specialist. On my review of the evidence this leads me to conclude that the spine condition of the applicant has not been fully investigated and so cannot be rated.
As I have also found, the applicant also has a psychiatric impairment which existed in the relevant period. I have considered whether the psychiatric impairment of the applicant warrants his being assigned an impairment rating under the appropriate table or tables in the Impairment Tables. It is fair to say that at the hearing of this application the applicant based his case on the fact that his psychiatric impairment was assessed by Dr Katz as having a rating of 20 points. However, the report of Dr Katz does not outline what criteria in Table 6 were relied upon to make his assessment of the rating and so I decline to rely upon that report to make a finding that the condition of the applicant attracted such a rating. Dr Katz has also reported: “I do not consider that Mr Augustynski’s condition was fully treated and stabilised as a the 25th October 2011 or within 13 weeks of that date”. Having regard to this statement I find that the psychiatric impairment of the applicant cannot be rated because it was not “stabilised” within the relevant period in terms of para 4 of the Introduction.
For the sake of completeness, I should record that the applicant has a condition of the prostate. The treating doctor has listed this condition in the section of the medical report that relates to conditions that are generally well managed and which cause minimal or limited impact on ability to function. There can be no suggestion that this condition can attract an impairment rating.
Having regard to this evidence I find that the applicant does not satisfy s 94(1)(b) of the Act and so does not qualify for disability support pension.
CONTINUING INABILITY TO WORK
As I have concluded that the applicant cannot be assigned 20 points for his impairment, either alone or in combination, it is not strictly necessary for me to determine whether he has a continuing inability to work in terms of s 94(2) of the Act. To qualify for disability support pension the applicant is required to satisfy the legislative criteria in that provision which was in force during the relevant period. In particular, the applicant must satisfy s 94(2)(aa) of the Act.
I am unable to make a finding that the applicant has a continuing inability to work in terms of s 94(2) of the Act. This is because the applicant has not actively participated in a program of support at the date of his claim or for a period of at least 18 months in the three years prior to his claim.[15] At the date when the applicant made his claim (25 October 2011) he was not advised of the need to actively participate in a program of support. During the hearing I raised whether it was fair to apply this provision in these circumstances when at the date of the claim it was not possible for the applicant to comply with s 94(2)(aa) of the Act. However, the Secretary (or this Tribunal) has no power to dispense with the operation of s 94(2)(aa) of the Act. In any event, even if there were such a dispensing power it would not be appropriate to exercise it because the applicant does not satisfy the other provisions of s 94(2) of the Act.
[15] See s 5 of the Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011.
In order for the Secretary to conclude that a person has an inability to work because of an impairment, it is also essential that the criteria in both ss 94(2)(a) and (b) be met. This is indicated by the presence of the distributive word “and” in s 94(2).
In considering the application of s 94(2)(a), which refers to work, I must refer to the definition of “work” in s 94(5) of the Act which refers to work for at least 15 hours per week. The job capacity assessment report, in which the baseline capacity for work of the applicant was assessed to be 15-22 hours per week, was not challenged by applicant. I accept that the report was a fair assessment of the capacity of the applicant. The fact that after this report was written the applicant was in part-time employment for three months in which he worked three to five hours in a day for three to five days in a week indicates that the report is a fair assessment of the work capacity of the applicant in the relevant period. I find that during the relevant period the applicant had a current baseline capacity for work of at least 15 hours per week and therefore cannot satisfy s 94(2)(a) of the Act.
There is no evidence that the impairments of the applicant are of themselves sufficient to prevent him undertaking educational or vocational training or on-the-job training during the next two years in terms of s 94(2)(b)(i) of the Act. Some assistance should be provided to the applicant, who has valuable managerial experience, to identify any suitable training programmes.
Having regard to all of the evidence before me, I have come to the conclusion that the applicant is not entitled to disability support pension. The applicant has been properly advised that he can make another claim for disability support pension to consider his condition at a later date.
DECISION
I affirm the decision under review.
I certify that the preceding 42 (forty -two) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr P McDermott RFD. .......................[Sgd].................................................
Associate
Dated 18 July 2013
Date of hearing 27 June 2013 Applicant In person
Solicitor for the Respondent Karen Hamilton, Departmental Advocate
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