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

[2015] AATA 665

Savicic and Secretary, Department of Social Services (Social services second review) [2015] AATA 665 (2 September 2015)

Division	GENERAL DIVISION
File Number(s)	2014/2596
Re	Renato Savicic
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr Ion Alexander, Member
Date	2 September 2015
Place	Sydney

The decision under review is affirmed.

........................................................................

Dr Ion Alexander, Member

CATCHWORDS

SOCIAL SECURITY – pensions – disability support pension – whether applicant’s conditions were fully diagnosed, treated and stabilised – whether applicant’s impairment is rated 20 points or more under the Impairment Tables – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth)

SECONDARY MATERIALS

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

REASONS FOR DECISION

Dr Ion Alexander, Member

2 September 2015

BACKGROUND

1. On 22 July 2013 Mr Savicic 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.

2. Mr Savicic’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)(b) of the Act, in that his impairment rating was not 20 points or more under the Impairment Tables.

3. In these proceedings Mr Savicic seeks review of the decision of the SSAT dated 17 April 2014.

4. At the hearing Mr Savicic was self-represented and able to give oral evidence.

   ISSUES

5. In order to qualify for DSP, Mr Savicic 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 22 July 2013 and 21 October  2013 (the claim period).

6. 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) one of the following applies;

   (i) the person has a continuing inability to work;

   …

7. Respondent concedes and the Tribunal accepts that Ms McDonald suffers medical conditions that cause impairment and therefore satisfied s 94(1)(a) of the Act at the time of his claim for DSP.

8. The relevant conditions are “groin and scrotal pain, lower back pain and depression”

9. 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)).

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

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

    ·fully treated (paragraph 6(4)(b)),

    ·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)).

11. 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”.

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

    CONDITIONS

    Groin and scrotal pain

13. In May 2012 Mr Savicic was bending over a palette at work and experienced pain in the groin and lower back. His GP, Dr Tomka subsequently diagnosed bilateral inguinal hernias and referred him to a general surgeon, Dr Hong, who performed a bilateral hernia repair on 15 March 2013. After the operation Mr Savicic continued to suffer groin pain and was told by Dr Hong that post-operative pain was to be expected and would settle over time.

14. However, Mr Savicic’s pain did not resolve and he told the Tribunal the he continues to suffer bilateral groin pain radiating to the scrotum which is constant, worse on the right than the left and aggravated by walking and sudden movements which causes a stabbing and burning sensation. He said that pain has been unresponsive to treatment and he has slowly learned to live with it.

15. In a Centrelink medical report dated 22 July 2013 Dr Tomka lists bilateral “inguinal hernia repair” as a condition with most functional impact. Dr Tomka does not mention anything about persistent groin pain and provides no details about how the claimed condition impacts on Mr Savicic’s ability to function.

16. In a letter dated 28 August 2013 Dr Tomka refers Mr Savicic back to Dr Hong because of “abdo pain after bilateral inguinal hernia mash repair”.

17. In a referral letter to Dr Gassner, urologist, dated 9 October 2013, Dr Hong notes that he performed bilateral endoscopic inguinal hernia repair on the 15 March 2013 and that at follow up at three and six weeks post procedure there appeared to be no complications. However, at six months post procedure Mr Savicic returned complaining of “pains in the right groin, which radiates down into the scrotum”. On examination Dr Hong noted signs of “orchitis” but no other abnormalities and reported that ultrasound examination of the testes and CT scan of the abdomen and pelvis did not assist in making a diagnosis.

18. Mr Savicic told Tribunal that Dr Gassner said that in some cases pain can be caused by nerve entrapment or “tissue tear“ but that there was no treatment and he would need to learn to live with it.

19. I note that there is no documentation from Dr Gassner before the Tribunal.

    Consideration

20. I accept that the evidence before the Tribunal indicates that during the claim period Mr Savicic suffered “groin pain radiating to the scrotum”. However, in my view, the evidence does not support a conclusion that during the claim period Mr Savicic’s “groin and scrotal pain” was a condition that was fully treated, fully diagnosed, fully stabilised and more likely than not to persist for more than two years.

21. Mr Savicic was not referred to Dr Hong for review until 28 August 2012. Dr Hong was unable to provide a diagnosis to explain the cause of Mr Savicic’s pain and requested a second opinion on the 9 October 2013 less than two weeks before the end of the claim period so there was in fact no diagnosis during the claim period.

22. Even If I were to accept that “groin pain” was a permanent condition for the purposes of the Impairment Determination there is, in my view, insufficient corroborative evidence to allow the Tribunal to conclude that during the claim period this condition had any significant functional impact.

23. It follows that the impairment rating for this condition during the claim period is nil.

    Low back pain

24. Mr Savicic told the Tribunal that back pain is his worst problem and has been present since the workplace incident in May 2012. Mr Savicic described the pain as persistent, aggravated by walking and prolonged sitting, interferes with sleep and has been generally unresponsive to treatment.

25. Mr Savicic told the Tribunal that in 2012 he was seen on several occasions by an orthopaedic surgeon, Dr Giblin, who recommended treatment with physiotherapy and hydrotherapy.

26. There is no documentary evidence before the Tribunal from Dr Giblin. However, in a report dated 24 March 2014 Dr Stephenson, orthopaedic surgeon,  notes that Dr Giblin had written to Dr Tomka on the 8 August 2012 and 9 September 2012  as follows:

    I saw this gentleman today and his X-rays confirm spondylolisthesis and his MRI confirms the same with disc dessication and an annular tear. The difference between the two scans however is that there does seem to be movement in the spine compared with the probe position. I explained his scan was unremarkable…..As an initial step I stated him on some physiotherapy and anti-inflammatories…. He could forward flex to ankles but he had pain on arising. He had some pain getting on and off the examination couch...

27. In his report of 22 July 2013 Dr Tomka lists low back pain as a condition and describes impact on impact on ability to function as “unable to lift more than 5 kg”   but provides no other details.

28. In his report of 24 March 2014 Dr Stephenson notes the following on physical examination:

    There is normal lumbar lordosis. When standing he would forward flex so fingers reached upper tibia level only. Lateral flexion was performed to reach the lower thigh level on the right and mid-thigh level on the left. Extension was to vertical position and + 10 degrees….there was good range of trunk rotation…there were no objective findings of radiculopathy in the lower extremities with power and sensation being satisfactory …. 

    Consideration

29. The evidence before the Tribunal confirms that during the claim period Mr Savicic had a spine condition with abnormal MRI findings. However, in my view, the evidence does not explain the relationship between the radiological findings and Mr Savicic’s claimed symptoms and also does not clearly establish that his spine condition was fully treated and fully stabilised during claim period.

30. Furthermore, even if I accept that during the claim period Mr Savicic’s spine condition was permanent for the purposes of the Impairment Determination, in my view, there is insufficient corroborative evidence before the Tribunal to allow a reasonable assessment of Mr Savicic’s functional impairment during the claim period.

31. It follows that during the claim period the rating for Mr Savicic’s spine condition under the Impairment tables is nil

    Mental health condition

32. Mr Savicic told the Tribunal that because of his “depression” he doesn’t want to leave the house, cannot look after his children for more than 10-15 minutes and has pushed all his friends away. He indicated that following his work injury he saw a psychologist for several months and was started on antidepressant medication, Effexor, which he continued until sometime in 2014. Mr Savicic explained he stopped taking the medication because he believed it was causing him to have fits of anger and behave violently.  This behaviour has ceased since stopping the medication.

33. Mr Savicic told the SSAT that he started seeing a psychiatrist on about 7 April 2014, has another appointment and anticipates regular consultations.

34. In a letter dated 20 September 2012 Dr Protulipac, clinical psychologist notes “due to his injuries and dramatic change to his lifestyle, chronic pain, social isolation and financial difficulties, he developed a depressive condition with elevated anxiety” and recommended treatment with anti-depressant medication.

35. In his report of 22 July 2013 Dr Tomka makes no mention of any mental health condition.

36. In a medical certificate dated 30 September 2013 Dr Tomka notes that Mr Savicic attended his practice for medical conditions including “depressed mood” but provides no other relevant details.

37. In a report dated 9 April 2014 Dr Protulipac states that he assessed Mr Savicic on 28 June 2012 who he suffered symptoms of “pain, stress, anxiety, depression and a range of psychosomatic complaints…” and indicates that treatment was terminated on the 23 January 2013 after 22 sessions because Mr Savicic’s condition had reached a plateau from which little improvement could have been anticipated.

38. Dr Protulipac goes on to review Mr Savicic’s current status, concludes that he suffers from an “Adjustment Disorder with Mixed Anxiety and Depressed Mood, Chronic Type” and recommends weekly psychological treatment for three  months and possibly longer.

39. Dr Protulipac provides an “Assessment of Whole Person Impairment in Accordance with the 4^th Edition AMA Guide for Whole Person Impairment” and describes mild to moderate impairment in most of the categories.

    Consideration

40. I am satisfied that during the claim period Mr Savicic suffered significant psychological symptoms but I am not persuaded that his mental health condition was fully diagnosed, fully treated and fully stabilised during that period. He received psychological treatment after the workplace incident in 2012 until January 2013, has had significant difficulties with antidepressant medication and was not reviewed by a clinical psychologist until April 2014 when a formal diagnosis was made and further treatment recommended.

41. Therefore, I am not satisfied that during the claim period his mental health was permanent for the purposes of the Impairment Determination, so a rating under the Impairment Tables cannot not be applied.

42. Furthermore, if I were to accept that Mr Savicic’s mental health condition was permanent during the claim period and that Dr Protulipac’s assessment of mild to moderate impairment was relevant to that period, a rating of no greater than 10 points under Impairment Table 5 could be applied.

    DECISION

43. For reasons set out about I am satisfied that during the claim period Mr Savicic’s rating under the Impairment Tables was less than 20 points so that he did not satisfy section 94(1)(b) of the Act and did not qualify for DSP. It is therefore unnecessary to consider whether Mr Savicic had a continuing inability to work under s 94(1)(c).

44. The decision under review is affirmed.

I certify that the preceding 44 (forty-four) paragraphs are a true copy of the reasons for the decision herein of Dr Ion Alexander, Member

.............................[sgd]...........................................

Associate

Dated 2 September 2015

Date(s) of hearing	14 August 2015
Applicant	In person
Solicitors for the Respondent	Department of Human Services