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

[2016] AATA 658

Stegnjaic and Secretary, Department of Social Services (Social services second review) [2016] AATA 658 (31 August 2016)

Division	GENERAL DIVISION
File Number(s)	2015/6041
Re	Marija Stegnjaic
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr L Bygrave, Member
Date	31 August 2016
Place	Sydney

The decision under review is affirmed.

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

Dr L Bygrave, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – cancellation – impairment tables – whether impairments fully diagnosed, treated and stabilised – spinal condition has moderate functional impairment – lower limb condition has mild functional impairment – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) ss 27, 94

Social Security (Administration) Act 1999 (Cth) ss 80(1), 118(3)

SECONDARY MATERIALS

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

REASONS FOR DECISION

Dr L Bygrave, Member

31 August 2016

1. The applicant, Ms Marija Stegnjaic, was granted a disability support pension on 9 August 2012.

2. On 30 October 2015, the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal affirmed the decision of the Secretary to cancel Ms Stegnjaic’s disability support pension. The basis of the decision was that Ms Stegnjaic ceased to satisfy the requirements of s 94 of the Social Security Act 1991 (Cth) (the Act) at the date of cancellation on 19 May 2015.

3. Ms Stegnjaic applied to the General Division of the Tribunal on 17 November 2015 for a second review of the decision.

4. The matter was heard in Sydney on 1 August 2016. Ms Stegnjaic attended the hearing in person. She had legal representation and was assisted by an interpreter of the Serbian language.

   LEGISLATION

5. The power for the Secretary to cancel Ms Stegnjaic’s disability support pension is contained in s 80(1) of the Social Security (Administration) Act 1999 (Cth) (Administration Act). Pursuant to s 118(13) of the Administration Act, the cancellation decision takes effect on the day on which it was made, in this case on 19 May 2015 (date of cancellation).

6. In assessing whether Ms Stegnjaic qualified for the disability support pension in 2015, Centrelink was required to apply the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables Determination), pursuant to ss 27(3) and (4) of the Act.

7. Section 94(1) of the Act provides that a person qualifies for the 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)the person has a continuing inability to work as defined by the Act.

8. Ms Stegnjaic had to satisfy these criteria at the date of cancellation.

9. The Secretary concedes and the Tribunal agrees that Ms Stegnjaic suffers medical conditions that cause impairment and therefore, satisfied sub 94(1)(a) of the Act at the date of cancellation.

10. It follows that the determinative issues in this matter are whether, at the date of cancellation, Ms Stegnjaic had:

    (a)an impairment rating of 20 points or more under the Impairment Tables; and

    (b)a continuing inability to work as defined in s 94(2) of the Act.

    Does Ms Stegnjaic have medical conditions that can be rated at 20 points or more under the Impairment Tables?

11. The Impairment Tables Determination requires that an impairment rating can only be assigned if the condition causing that impairment is ‘permanent’. As set out in para 6(4) of the Impairment Tables Determination, a condition is permanent if it:

    ·has been fully diagnosed by an appropriately qualified medical practitioner; and

    ·has been fully treated; and

    ·has been fully stabilised; and

    ·is more likely than not to persist for more than two years.

12. The Impairment Tables describe functional activities, abilities, symptoms and limitations; and are designed to assign ratings to determine the level of functional impact of impairment.

13. The Introduction to each relevant Table requires that ‘self-report of symptoms alone is insufficient’ and ‘there must be corroborating evidence of the person’s impairment’.

14. The medical conditions of Ms Stegnjaic set out in the Disability Support Pension Medical Report completed by Dr P Tomasevic (General Practitioner) on 20 May 2015 are:

    ·chronic pains in neck, headaches, pains in entire back, both upper and lower limbs;

    ·hypertension;

    ·anxiety and depression;

    ·dyslipidaemia;

    ·endoscopy and colonoscopy – removal of colonic polyp.

15. At the Tribunal hearing, both parties’ representatives agreed that Ms Stegnjaic’s condition of anxiety and depression was not fully diagnosed, treated and stabilised at the date of cancellation. Based on the evidence before me, I concur with this finding and therefore do not consider this medical condition for the purpose of this review.

16. I now consider Ms Stegnjaic’s medical conditions and their relevant rating under the Impairment Tables.

    Spinal condition

17. Ms Stegnjaic has neck pain that radiates in her shoulders and arms, thoracic back pain and low back pain radiating in her right leg.

18. Dr S Habib, who is certified as an independent medical examiner and trained in the assessment of permanent impairment, supplied a written report dated 3 March 2016 and provided oral evidence at the Tribunal hearing about Ms Stegnjaic’s spinal condition.

19. On 19 January 2007 and 15 October 2012, Ms Stegnjaic had scans on her back which showed disc problems in her back and neck. The report of Dr Habib dated 3 March 2016 also referred to MRI scans on 28 July 2015 which showed:

    … extensive multilevel degenerative changes including C5/6 & C6/7 levels with disc osteophyte complexes (neck)… Lower thoracic spine changes with degenerative changes… accompanied with disc bulges… In the lumbar spine there were moderate changes at L3/4 & L4/5 levels compromising the exiting nerve roots.

20. Dr Habib opined that Ms Stegnjaic ‘suffers from moderately severe spinal disease which is long standing and deteriorating when assessed on the clinical and imagery findings’. Dr Habib clarified at the Tribunal hearing that Ms Stegnjaic’s back pain radiating to her legs was a separate condition to the pain in her right knee.

21. Both in his report dated 3 March 2016 and at the Tribunal hearing, Dr Habib assessed Ms Stegnjaic’s spinal condition as permanent and scoring 20 points according to the criteria set out at Table 4 – Spinal Function of the Impairment Tables. Dr Habib stated the reason for this assessment was that Ms Stegnjaic was unable to sit for 10 minutes.

22. During the Tribunal hearing, Ms Stegnjaic spoke about chronic pain in her back, shoulders and legs. She described using a walking stick, pain when sitting for periods of time, and problems undertaking tasks such as dressing herself and bathing. She talked about travelling to Croatia three times during the past four years because the climate made her feel better. When asked about how she undertook the flights between Australia and Croatia, Ms Stegnjaic said she took pain medication, which made her sleep, and completed the trip in one leg via Dubai. I note that undertaking these flights required Ms Stegnjaic to be able to sit for more than 10 minutes.

23. I am satisfied that Ms Stegnjaic’s spinal condition was fully diagnosed, fully treated and fully stabilised at the date of cancellation. I am also satisfied that the relevant Impairment Table is Table 4 – Spinal Function as the source of Ms Stegnjaic’s chronic pain is her spinal condition. In accordance with the information at Table 4 – Spinal Function, I find that Ms Stegnjaic’s condition had a moderate functional impact on activities involving spinal function at the date of cancellation and I assign an impairment rating of 10 points.

    Upper limb

24. On 20 January 2015, Dr Habib referred Ms Stegnjaic to have steroid injections into her elbow to ‘improve the situation’. Dr Tomasevic also referred Ms Stegnjaic on 20 May 2015 for physiotherapy sessions ‘for right and left elbow pains’.

25. Dr Habib told the Tribunal that he referred Ms Stegnjaic for an MRI scan on her elbow on 18 May 2015 to determine the underlying cause and ascertain whether there were any other treatment options.

26. Based on the medical evidence before me, I am satisfied that Ms Stegnjaic’s upper limb condition was fully diagnosed, but not fully treated and not fully stabilised at the date of cancellation. For this reason, Ms Stegnjaic’s condition was not permanent at the date of cancellation and cannot be rated under the Impairment Tables.

    Lower limb

27. Ms Stegnjaic reported problems with both knees, although the primary area of pain appears to be with her right knee.

28. Dr Habib, in a report on 20 January 2015, stated that a steroid injection had reduced the swelling and tenderness in the right knee which was a ‘pleasing result’. Dr Habib also noted Ms Stegnjaic ‘could have further injections for recurrence’.

29. At a Job Capacity Assessment (JCA) on 1 May 2015, Ms Stegnjaic reported ‘no symptoms’ and ‘no specific treatment for her right knee on the past’. On the basis of the JCA, the Secretary contends that Ms Stegnjaic’s knee condition was not fully diagnosed, treated and stabilised at the date of cancellation. Given the JCA is inconsistent with Dr Habib’s report dated 20 January 2015, I place limited weight on the evidence of the JCA reporting of Ms Stegnjaic’s knee condition.

30. At the Tribunal hearing, Dr Habib described Ms Stegnjaic’s knee condition as ‘degenerative’ and noted that it ‘won’t heal’. He noted that injections can provide Ms Stegnjaic temporary relief for up to six months and that surgery may be required in the future (in more than two years).

31. Ms Stegnjaic told the Tribunal that she had difficulty walking and required a walking stick for assistance. During the hearing, Ms Stegnjaic stood for several periods of time of about 10 minutes.

32. Based on the evidence of Dr Habib, I am satisfied that Ms Stegnjaic’s lower limb condition was fully diagnosed, fully treated and fully stabilised at the date of cancellation. In accordance with the information at Table 3 – Lower Limb Function, I find that Ms Stegnjaic’s condition at the date of cancellation had a mild functional impact on activities involving the lower limb and I assign an impairment rating of 5 points.

    Hypertension

33. The Disability Support Pension Medical Report by Dr Tomasevic dated 20 May 2015 stated that Ms Stegnjaic has hypertension that is treated with ‘medication, medical treatment and reviews’ and has current symptoms that are ‘severely debilitating’.

34. Dr C Minogue (Specialist Occupational Physician) provided a report on 20 April 2016 that stated the ‘proposition that apparently uncomplicated hypertension could be “severely debilitating”, as stated by Dr Tomasevic, is intrinsically implausible’. Ms Stegnjaic also told the Tribunal that her blood pressure ‘improves’ when she travels to Croatia.

35. A report by Dr H Almafragy (Cardiologist and Consultant Physician) dated 22 January 2015 diagnosed labile blood pressure and medication (Mirtazapine 30 mg daily and Twynsta 80/5 mg as required). Dr Almafragy reported that  Ms Stegnjaic:

    …continues to treat her blood pressure herself only when blood pressure is high. She checks it in the morning and if it is normal, she does not take the tablets, because she feels dizzy sometime [sic]. She has been doing that for quite sometime. She has not been taking the tablet for almost a week. Despite that her blood pressure today is borderline…

36. This report by Dr Almafragy shows that, in January 2015, Ms Stegnjaic was not taking her medication for hypertension daily as prescribed and her condition was not stabilised. Therefore, I am satisfied that Ms Stegnjaic’s hypertension was fully diagnosed, but not fully treated and stabilised at the date of cancellation. For this reason, Ms Stegnjaic’s condition was not permanent at the date of cancellation and cannot be rated under the Impairment Tables.

    Gastrointestinal condition

37. Dr Tomasevic, in the Disability Support Pension Medical Report dated 20 May 2015, noted at question 6 that Ms Stegnjaic has the following medical conditions that are generally well managed and cause minimal or limited impact on function: ‘dyslipidaemia, endoscopy and colonoscopy – removal of colonic polyp’.

38. A colonoscopy report dated 20 February 2012 refers to the removal of a polyp. A gastroscopy report dated 20 February 2012 did not show evidence of peptic ulcer disease. There is no other medical evidence before me in relation to these conditions.

39. Based on the limited evidence before me, I am not satisfied that Ms Stegnjaic’s gastrointestinal condition has been fully diagnosed, treated and stabilised. Therefore, the condition cannot be assigned a rating under the Impairment Tables.

    CONCLUSION

40. For the reasons set out above, I am satisfied that, at the date of cancellation, Ms Stegnjaic did not meet the requirements of s 94(1)(b) of the Act as her impairment was not 20 points or more under the Impairment Tables.

41. As I find that Ms Stegnjaic did not qualify for disability support pension at the date of cancellation, it is not necessary for me to consider whether she had a continuing ability to work at the date of cancellation.

42. If Ms Stegnjaic’s medical conditions have changed since the date of cancellation, she is entitled to submit a new application for disability support pension at any time.

    DECISION

43. The decision under review is affirmed.

I certify that the preceding 43 (forty -three) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave

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

Associate

Dated 31 August 2016

Date(s) of hearing	1 August 2016
Solicitors for the Applicant	Shephard & Shephard Solicitors
Solicitors for the Respondent	Department of Human Services