Stjepic and Secretary, Department of Social Services (Social services second review)
[2015] AATA 979
•17 December 2015
Stjepic and Secretary, Department of Social Services (Social services second review) [2015] AATA 979 (17 December 2015)
Division
GENERAL DIVISION
File Number(s)
2015/2239
Re
Boro Stjepic
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Mr S. Webb, Member
Date 17 December 2015 Place Perth The decision under review is affirmed.
..........[Sgd]..............................................................
Mr S. Webb, Member
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – request for indefinite portability – international agreement – meaning of ‘severely disabled’ - review of qualification for DSP under social security law provisions – assessment of conditions and impairments – DSP cancelled – portability eligibility requirements not met from date of cancellation - decision affirmed
LEGISLATION
Social Security Act 1991, s 94, 1211, 1215, 1217, 1218AA, 1218AAA, 1221-A1, 1220B
Social Security (Administration) Act 1999 s 13, s 14, s 80, Part 3
Social Security (International Agreements) Act 1999, s 3, 5, 6, Schedule 16
CASES
Re Daccache and SDSS [2015] AATA 596
Re WMKR and SDSS [2015] AATA 483
Shi v Migration Agents Registration Authority (2008) 235 CLR 286SECONDARY MATERIALS
Guide to Social Security Law
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Mr S. Webb, Member
17 December 2015
Boro Stjepic injured his back at work in 2002. He was not able to work. He claimed and was granted a Disability Support Pension (DSP). He spent extended periods of time in Croatia, but exceeded the portability threshold and his DSP was cancelled. His DSP was reinstated following his return to Australia. Subsequently, in 2013, he requested indefinite portability of his DSP. Delegates of the Respondent Secretary reviewed his qualification for DSP and decided that he did not qualify. In the result, Mr Stjepic’s DSP was cancelled and his request for indefinite portability was refused. He has pressed his right of review, but successive decision-makers have affirmed the original decision. He has applied to this Tribunal for review.
Issues
There are two issues to be decided –
(a)Mr Stjepic’s eligibility for DSP; and
(b)his eligibility for indefinite portability of DSP.
Firstly, however, it is necessary to determine when each of these issues is to be assessed.
When is eligibility to be assessed?
On 15 March 2005, Mr Stjepic was granted DSP under the terms of the Social Security Act 1991 (the Social Security Act). Mr Stjepic requested indefinite portability of his DSP on 5 December 2013. Centrelink determined that assessment of his eligibility for the grant of indefinite portability would involve a ‘medical review’ of his qualification for DSP. He was found to not qualify for DSP under the legislative instruments then in force.
On 11 August 2014, a delegate of the Secretary determined to cancel Mr Stjepic’s DSP with effect from 22 September 2014.[1] Having regard to s 80 of the Social Security (Administration) Act 1999 (the Administration Act), it is necessary, therefore, to determine whether or not he qualified for DSP on that day.
[1] T19.
Mr Stjepic’s request for indefinite portability of DSP was refused in the 11 August 2014 DSP cancellation decision – “As the medical review has resulted in the cancellation of your Disability Support Pension, you are not eligible for indefinite portability of Disability Support Pension under s 1218AAA of the Social Security Act”.[2]
[2] T19 folio 125.
The Tribunal has grappled with the question when eligibility for unlimited portability is to be assessed on review. The Secretary raises two lines of reasoning in recent Tribunal decisions, and asserts that the construction I adopted in Re WMKR and SDSS[3] is preferred – I was informed that the Secretary has changed position on this question from the position put in submissions made to the Tribunal in Re Daccache and SDSS[4].
[3] [2015] AATA 483 at [24]-[34].
[4] [2015] AATA 596 at [26].
I should say immediately that I do not think that the constructions adopted in these decisions are entirely inconsistent.
As a matter of legal principle, applying Shi v Migration Agents Registration Authority,[5] there is no barrier to the Tribunal making an assessment of a person’s eligibility for indefinite portability of DSP presently – the legislation does not expressly refer to the date when an assessment is to be made. But exercise of this principle must depend upon a proper construction of the legislation that is applicable in the circumstances of each case.
[5] (2008) 235 CLR 286.
The overall purposes of the legislation must be considered. And the requirements of the legislation must be applied in respect of a person’s circumstances from time to time.
The portability rules are set out in Part 4.2 of Chapter 4 of the Social Security Act. These rules apply unless an International Social Security Agreement is in force under Social Security (International Agreements) Act 1999 (the International Agreements Act).
Even though in Mr Stjepic’s case an International Social Security Agreement was in place between Australia and Croatia when he requested the grant of indefinite portability of his DSP, in order to understand the purposes of the portability rules (and to determine when as assessment of eligibility for grant of indefinite portability is to be made) it is helpful to consider the terms of Part 4.2 of the Social Security Act. Under s 1217, the maximum portability periods for pensions, benefits and payments (including DSP) are set out. These portability period limits apply unless a person is granted unlimited portability under s 1218AAA or s 1218AA. Where a person is granted unlimited portability for DSP, the rate of DSP is to be worked out using the rate calculator in s 1221-A1 subject to s 1220B –
1220B Proportionality—disability support pension rate for a severely disabled person
(1) The rate of disability support pension for a person for whom an unlimited maximum portability period for the pension has been determined under section 1218AAA or 1218AA is to be calculated using the Pension Portability Rate Calculator at the end of section 1221 if:
(a) the person has been continuously absent from Australia, throughout a period (the period of absence) of more than 26 weeks; and
(b) either:
(i) immediately before the period of absence commenced, the person was receiving the disability support pension; or
(ii) during the period of absence, the person’s claim for the disability support pension is granted under the Social Security (Administration) Act 1999.
(2) Subsection (1) does not apply to a person if the person became qualified to receive the disability support pension because the person became unable to work or permanently blind while the person was an Australian resident.
Where an International Social Security Agreement is in place, the international agreement portability rate calculation procedure is set out in s 13 of the International Agreements Act. Among other things, this requires assessment of the person’s ‘notional agreement pension rate’ ‘by calculating the rate that would be the person’s social security payment rate if this section did not apply to the person but taking into account section 14’.
The language of these provisions refers to points in time and to periods of time calculated retrospectively, using phrases such as ‘has been continuously absent’, ‘at a particular time’ and ‘up to that time’. The plain words and the express purposes of the legislative provisions for calculation of the rate of a person’s DSP under the social security law allow for assessments to be made at particular points in time in the particular circumstances. With regard to a person’s absence from Australia, for example, the provisions expressly refer to the commencement of a period of absence from Australia in the past. The rate calculator is applied to determine the proportional rate of DSP that is payable to the person during the period of absence. This requires determination of the person’s ‘period of Australian working life residence’ at a particular point in time and the applicable ‘residence factor’. Much as the factors set out in the rate calculator following s 1064 affect the rate of a person’s DSP, week by week, the rate at which a person’s DSP is payable during periods of absence from Australia is subject to the factors calculated using the portability rate calculator in s 1221-A1 or, if an International Social Security Agreement is in place, under the rate calculation procedure set out in Part 3 of the International Agreements Act.
Thus it can be seen that the assessment of eligibility for unlimited portability bears directly upon the rate of a person’s DSP from time to time – if the person is not eligible for unlimited portability and he or she is absent from Australia for a period exceeding that set out in s 1217, the person’s DSP is not then payable under s 1215(1)(b); whereas, if the person is eligible for unlimited portability, then the rate of DSP payable during the period of absence from Australia is to be calculated under s 1221-A1 or under Part 3 of the International Agreements Act.
Even though generally DSP is paid fortnightly, under s 1064-A1 the rate is to be calculated on a daily basis, taking into account variables, such as income, assets and family circumstances for example. The portability rules bear directly on the rate of a person’s DSP from time to time, including whether DSP is payable at all during absences exceeding the permissible maximum under s 1217.
These considerations strongly suggest that a person’s eligibility for unlimited portability should be determined as of the date of claim (when the person requested grant of unlimited portability) and subsequently, taking account of any material change in the person’s circumstances from time to time and, in particular, the continuing eligibility of the person for unlimited portability.
It is not difficult to conceive of circumstances in which a DSP recipient who has applied for review of a decision denying unlimited portability is absent from Australia for a period longer than that allowed under the portability rules. In such circumstances the person’s DSP payment would cease when the maximum portability period is reached. Should they return to Australia, DSP payments would resume (subject to eligibility requirements being met). On reviewing the decision denying unlimited portability, if the Tribunal is confined to assessing the person’s eligibility at the date of the review, the person would be unable to recover and would be left without any mechanism to challenge the portability decision that caused DSP payments to be stopped. A result of this kind is not consistent with the objects and purposes of the review provisions set out in the Administration Act.
To my mind, if there is ambiguity in the provisions for review of portability decisions, a beneficial and generous construction should be adopted. Without express provision requiring it, a construction that prevents a person obtaining meaningful review of a disentitling decision does not meet that test.
Which legislation applies?
There is a further issue concerning the applicable legislation in Mr Stjepic’s case. This issue arose at hearing and I granted time for the parties to prepare and lodge written submissions addressing the issue. I have received and carefully considered those submissions.
In view of the way in which the case has been construed and presented by the Secretary,[6] there is a question about the extent to which Part 4.2 of Chapter 3 of the Social Security Act applies, if at all, such that Mr Stjepic must satisfy the requirements of s 1218AAA for grant of indefinite portability –
[6] Respondent’s Statement of Facts, Issues and Contentions, 15 October 2015.
1218AAA Unlimited portability period for disability support pension—severely impaired disability support pensioner
(1) The Secretary may make a written determination that a particular person’s maximum portability period for disability support pension is an unlimited period, if all of the following circumstances (the qualifying circumstances) exist:
(a) the person is receiving disability support pension;
(b) the Secretary is satisfied that the person’s impairment is a severe impairment (within the meaning of subsection 94(3B));
(c) the Secretary is satisfied that the person will have that severe impairment for at least the next 5 years;
(d) the Secretary is satisfied that, if the person were in Australia, the severe impairment would prevent the person from performing any work independently of a program of support (within the meaning of subsection 94(4)) within the next 5 years.
…
Under the express terms of s 1211, however, Part 4.2 does not apply if an International Social Security Agreement is in force under the International Agreements Act.
The international agreement between Australia and the Republic of Croatia for Social Security[7] (the Agreement) was in force when Mr Stjepic requested assessment for unlimited portability of his DSP. This Agreement is a ‘schedule international social security agreement’ under s 5 of the International Agreements Act.
[7] Schedule 16, Social Security (International Agreements) Act 1999.
Under s 6 of this Act, the Agreement has effect despite anything in the ‘social security law’, ‘only in so far as the provision is in force and affects the operation of the social security law’.[8]
[8] See discussion in Secretary, Department of Families, Housing, Community and Indigenous Affairs v Mahrous [2013] FCAFC 75 at [38]-[40].
The term ‘social security law’ includes the Social Security Act and the Administration Act.
Paragraph 1(a)(i) of Article 2 of the Agreement provides –
1. Subject to paragraph 2, this Agreement shall apply to the legislation effective at the date of signature of this Agreement, and to any legislation that subsequently amends, supplements, supersedes or replaces it:
(a) in relation to Australia:
(i) the Acts and regulations forming the social security law in so far as the law provides for, applies to or affects the following benefits:
- …
- disability support pension for the severely disabled;
…
The term ‘severely disabled’ is not given particular meaning in the Agreement, but under s 3(1) of the International Agreements Act it carries the same meaning as under the Social Security Act –
23 (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.
As can be seen, the conception and meaning of ‘severely disabled’ is not formed with reference to the test applied under s 1218AAA in respect of a ‘severe impairment’ under s 94(3B) –
94 (3B) A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.
The ‘severely disabled’ test does not require reference to the Impairment Tables. It follows that a person who is ‘severely disabled’ and qualified for DSP may be covered by the Agreement even though he or she does not have a ‘severe impairment’ as defined.
Thus, apart from any other requirement, these tests must be satisfied for the Agreement to apply and for the portability of benefits to be covered by Article 5.
It is convenient to deal with the portability issue first.
Portability
For present purposes it is necessary to assess whether Mr Stjepic was covered by the Agreement when he requested grant of indefinite portability for his DSP on 5 December 2013 and subsequently, having regard to changed circumstances.
Each of the two essential criteria must be satisfied – he must satisfy the qualification requirements for DSP and he must meet the ‘severely disabled’ test.
It is not in dispute that Mr Stjepic was in receipt of DSP until the 11 August 2014 cancellation decision came into effect on 22 September 2014. I will proceed on the basis that Mr Stjepic met the qualification requirements for DSP until 11 August 2014.
In order to meet the ‘severely disabled’ test, s 23(4B) must be satisfied –
(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.
The Secretary says that under clause 1.1.S.110 of the Guide to Social Security Law a total inability to work is taken to mean an impairment-related inability to work, or to benefit from training, education or rehabilitation, for 8 or more hours per week within the next two years. The Secretary relies on a 7 April 2014 Job Capacity Assessment report that Mr Stjepic had a “Baseline Work Capacity: 8-14 hours per week” and “Capacity for work within 2 years with Mainstream Intervention: 8-14 hours”.[9]
[9] T17 folio 121.
In medical reports dated 11 March 2014 and 28 August 2014, Dr Ponos set out her assessment of the impact of Mr Stjepic’s impairments on his ability to function.[10] On 16 April 2015, the doctor reported that Mr Stjepic “remains unfit for work (has been off work since 2002)”.[11] This assessment is supported by Dr Ng, who reported on 15 January 2015 that Mr Stjepic was “totally unfit for work”.[12]
[10] T16 folios 111 and 114 and T26 folios 144 and 147.
[11] ST11 folio 291.
[12] ST7 folio 275.
On balance, the present evidence does not establish that in the period from 5 December 2013 to 11 August 2014 Mr Stjepic was totally unable to work or to benefit from a program of assistance or a rehabilitation program within two years. On the subsequent evidence of Dr Ng and Dr Ponos it appears that Mr Stjepic was unfit for work from 15 January 2015. This notwithstanding, Dr Ng reported “if he shows good response to treatment functional capacity could be restored”,[13] and Dr Ponos reported that his conditions have stabilised and are permanent, but noted that “He may need assessment and management by a pain specialist (injections may help but won’t give long standing results)” and “Mr Stjepic may benefit of [sic] seeing a clinical psychologist on a fortnightly basis for the next six months”.[14] To my mind, these reports suggest that Dr Ng and Dr Ponos considered that some benefit and improvement in functional capacity may result from further treatment.
[13] Ibid.
[14] T11 folio 291.
On balance, I am satisfied that Mr Stjepic does not meet the ‘severely disabled’ test as of 5 December 2013 or thereafter to 11 August 2014. It follows that during this period he was not eligible for indefinite portability of his DSP under the Agreement.
It is not in dispute that Mr Stjepic was eligible for and he was receiving DSP when he requested grant of indefinite portability on 5 December 2013. This state of affairs continued until 11 August 2014, when the Secretary determined that he was not eligible for DSP, even though he continued to receive DSP until 22 September 2014.
That being so, it is necessary to determine whether he satisfied the indefinite portability rules under s 1218AAA of the Social Security Act. I am reasonably satisfied that he did not – the present evidence does not establish that he had a severe impairment within the meaning of s 94(3B) of the Social Security Act as of 5 December 2013.
For reasons that follow, I have found that Mr Stjepic did not meet the qualification requirements for DSP as of 11 August 2014. That being so, he is not eligible for indefinite portability of DSP thereafter under the Agreement or under any provision of the social security law.
For these reasons, Mr Stjepic was not eligible for indefinite portability of his DSP from 5 December 2013.
Qualification for DSP
I was informed that the Secretary does not dispute that Mr Stjepic has impairments or that he has a continuing inability to work under s 94(1)(a) and (c)(i) of the Social Security Act. As will appear, I think that these conclusions are well supported by the medical evidence.
In the Secretary’s submission, the central qualification issue is that, for the purposes of s 94(1)(b), Mr Stjepic’s impairments do not attract a rating of 20 or more points under the Impairment Tables set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination).
Mr Stjepic and his legal representative maintain that this is not correct and that the decision to cancel his DSP on 11 August 2014 is wrong. In his submission, he has suffered from multiple conditions and significant impairments for a long time. He asserts that he has obtained treatment for these conditions, but they persist without improvement and they prevent him from working or doing anything much at all. In his submission any further treatment recommended by his treating doctors is to prevent further deterioration of his health rather than to cure or improve conditions that afflict him. He told me that he relies upon the assistance of neighbours for many activities of daily life that he cannot undertake himself. He is forced to rely on neighbours because members of his family, on whom he would otherwise rely, are located in Croatia.
Mr Stjepic asserts that he suffers from serious back and mental health conditions that should be treated as ‘permanent’ for the purposes of assigning a rating under the Impairment Tables. In his submission, these conditions cause impairments that should be assigned 20 or more points. He alleges that his back condition causes significant pain-related functional impairments in his arms and legs that are sufficient, alone, to meet qualification requirements for DSP. The degree of these impairments, so the argument goes, is sufficient to require assignment of at least 20 points under the Impairment Tables.
Physical, intellectual or psychiatric impairment
Mr Stjepic complained of pain in his lower and upper back and neck, upper limb stiffness and pain in his hips, knees, feet, shoulders and arms, as well as headaches. In Centrelink forms, he referred to “osteoarthritis, arithmia, kidney problems”.[15]
[15] See T16 folio 105, for example.
The medical evidence from 2009 to the present, including reports by Dr Ponos (treating general practitioner),[16] Dr Golic (treating psychiatrist),[17] Dr Knezevic (a consultant neurologist),[18] Dr Ng (a consultant rheumatologist),[19] Dr Stanley (a consultant vascular surgeon),[20] Dr Lim[21] and Dr Dayanandan (radiologists),[22] and Emergency Medicine Summary reports from the Fremantle Hospital,[23] refer to the following conditions –
[16] T14, T26 and ST 11.
[17] T22 and ST10.
[18] ST8.
[19] ST3, ST7 and ST9.
[20] T18 and ST1.
[21] T24 and ST2.
[22] ST4.
[23] ST5 and ST6.
(a)chronic pain affecting his lower back, neck, limbs and head,
(b)inflammatory polyarthritis,
(c)major depressive disorder and generalised anxiety disorder,
(d)deep vein thrombosis (DVT) in his right leg,
(e)hyperlipidaemia,
(f)vitamin D deficiency,
(g)osteopaenia,
(h)left inguinal hernia and
(i)possible helicobactor pylori.
Additionally, Mr Stjepic has referred to arrhythmia, osteoarthritis and kidney problems.
On these materials, I am satisfied that at least some of these conditions cause (or are themselves) impairments for the purposes of s 94(1)(a) of the Social Security Act.
Impairment rating
For Mr Stjepic to qualify for DSP as of 11 August 2014, his impairments at that date must attract a rating of 20 or more points under the Impairment Tables set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination).
The Determination sets out rules that must be applied when assessing impairments.
Under rule 6(3) an impairment rating may only be given where the impairment is more likely than not to persist for more than two years and the underlying condition is ‘permanent’. A condition is taken to be permanent if it meets the tests set out in rule 6(4) – it is fully diagnosed, fully treated, fully stabilised and likely to persist for at least two years (see rule 6(5)).
Rules 10(5) and (6) provide that –
(5) Where two or more conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.
(6) Where a common or combined impairment resulting from two or more conditions is assessed in accordance with subsection 10(5), it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once.
Chronic pain and polyarthritis
Mr Stjepic argues that his back injury causes impairment of his spinal function that should be assessed under Table 4, impairment of his lower limb function that should be assessed under Table 3 and, if I have understood his submissions correctly, impairment of his mental function that should be assessed under Table 5.
His evidence is that he suffers chronic low back pain radiating into his lower limbs, pain in his upper back and neck radiating into his upper limbs and pain and stiffness in many joints. Mr Stjepic told me that he relies on friends and neighbours for many household chores, including washing, cleaning, cooking and shopping. He said that he could walk to his local shop, approximately 200 metres from his home, but he preferred to drive as it was safer. He explained that “big shopping” was undertaken by his friend and neighbour, Mr Diagne. Mr Stjepic agreed that he could accompany Mr Diagne, but he would give Mr Diagne a list of items he required and Mr Diagne would shop for him. I note the affidavit evidence of Jovanka Dagic and Amadou Diagne, which was not challenged.
I accept that Mr Stjepic has a history of experiencing a variety of pain and other symptoms in various parts of his body. To some extent, symptoms of this kind were described by Dr Popovic, a neurosurgeon, in 2003.[24] Nevertheless, this is a medically complex case in which the diagnosis and treatment of Mr Stjepic’s medical conditions has evolved over time.
[24] See T4 folios 32-33.
Furthermore, on the materials before me, it is difficult to differentiate conditions and to assess the functional effects and impairments caused by the various ailments and symptoms of which Mr Stjepic complains.
On 26 February 2009, Dr Ukalovich, a general practitioner, reported –
“Chronic low back pain due to a work related accident.
…
CT scan lumbrosacral spine – bulge of intervertebral disc annulus at L4/5
Bonescan – no evidence of recent fracture or facet arthropathy
– mildly increased uptake in SI joints due to mechanical causes.
Chronic low back pain with radiation of pain to his legs, midback, neck that is associated with headaches and dizziness.
Also experiences stiffness of low back that is exacerbated by movement – bending, kneeling, twisting and turning”[25]
[25] T10 folio 73.
On 11 March 2014, Dr Ponos reported that Mr Stjepic suffered from –
“Chronic low back pain due to work related accident on 20.8.2002. Chronic low back pain radiating to the leg.”[26]
[26] T16 folio 110.
The doctor expected the condition to persist for at least five years and that it would have a deteriorating effect on Mr Stjepic’s ability to function within that time. She said that this condition caused Mr Stjepic “Difficulty sitting, standing or walking for prolonged periods”.
On 28 August 2014, Dr Ponos again reported on Mr Stjepic’s low back condition and described the clinical features as –
“- Recurrent back pain
- Difficulty sitting, standing or walking for prolonged periods”[27]
[27] T26 folio 143.
On 25 November 2014, Dr Ng reported –
“He gave a history of generalised aches and pains for several years with insidious onset. Pattern of joint involvement is symmetrical – small joints in his hands and feet including shoulders, elbows, hips, knees, ankles and feet.
…
His history suggests an inflammatory polyarthritis and symmetry of joint involvement raises the possibility of RA [rheumatoid arthritis]. Baseline blood tests checking inflammatory markers and serology for rheumatoid factor are requested.
As a therapeutic test I have placed him on a reducing course of Prednisolone…”[28]
And on 15 January 2015, Dr Ng reported –
“His improvement on steroids with relapse of pain and cessation confirms my suspicion of an underlying inflammatory polyarthritis despite normal inflammatory markers and negative rheumatoid factor serology”.[29]
[28] ST3 folio 270.
[29] ST7 folio 275.
The CT scan of Mr Stjepic’s lumbar spine, reported by Dr Dayanandan on 4 December 2014, revealed minor pathology at L2/L3 and generalised osteopaenia.[30]
[30] ST4 folio 272.
On 19 January 2015, Dr Knezevic reported that Mr Stjepic “continues to have low back pain and pain radiating into his right leg” and “was unable to touch his toes and was unable to bring his hands to his knees”.[31] The doctor said -
“I reviewed the spinal CT scans. These showed minor degenerative changes without specific abnormalities.
This man has a chronic pain syndrome with chronic spinal pain of non-neurological origin. He does not have cranial abnormalities and I think his cervico cranial pain is of cervical tension and cervicogenical origin.
I am afraid that I cannot offer any treatment for this gentleman. My only suggestion would be that he be referred to a pain clinic for chronic pain management and to a spinal surgeon for evaluation.”[32]
[31] ST8 folio 276.
[32] ST8 folio 276.
On 16 April 2015, Dr Ponos reported that Mr Stjepic’s “Low back pain-symptoms are moderate-severe”,[33] and “He may need assessment and management by a pain specialist (injections may help but won’t give long standing results)”.[34]
[33] ST11 folio 290.
[34] ST11 folio 291.
On 5 August 2015, Dr Ponos reported “The chronic back pain has had a severe impact/difficulties with Mr Stjepic’s independent living, social, recreational and travel activities, relationships, concentration, memory and decision making”.[35]
[35] Exhibit 1.
The weight of the present evidence, and particularly the expert evidence of Dr Ng and Dr Knezevic, establishes that Mr Stjepic’s complaints of pain in various parts of his body do not have neurological cause.
This evidence raises questions about the correct diagnosis of Mr Stjepic’s pain-related symptomatology and whether, or to what extent, his complaints of back, neck, limb and head pain, and related functional impairments, are attributable to a 2002 back injury at the L5/S1 level, as reported by Dr Popovic, a neurosurgeon, in 2003 and 2004.[36] I note that the recent radiological evidence in ST4 does not show any significant pathology at the L5/S1 level.
[36] T4 folios 32 and 33, T5 and T6.
I accept that Mr Stjepic has experienced symptoms of pain in his lower back and right leg for some time and related disability[37]. Dr Ponos and Dr Ukalovich attribute these symptoms to Mr Stjepic’s injury in 2002 on the basis of Dr Popovic’s assessment of L5/S1 pathology in 2003. But that diagnosis is not consistent with the recent expert specialist evidence of Dr Ng and Dr Knezevic. It is possible that the inflammatory polyarthritis Dr Ng diagnosed or the chronic pain syndrome Dr Knezevic suggested may be causally related to Mr Stjepic’s 2002 injury. This is not clearly established by evidence, however. But, perhaps, questions of causal connection are beside the point for the purposes of rule 6(4). The test is whether the condition has been diagnosed, fully treated and fully stabilised at the relevant time. If the medical diagnosis of Mr Stjepic’s pain symptoms has changed, and it appears that it has, the relevant present evidence must been considered when applying rule 6(4) to the conditions affecting Mr Stjepic at the time of the assessment.
[37] See T8 folio 62, for example.
To my mind, the evidence of Dr Ng and Dr Knezevic carry greater weight than that of Dr Ponos, Dr Ukalovich and Dr Popovic. Dr Ng and Dr Knezevic are specialist doctors, whereas Dr Ponos and Dr Ukalovich are general practitioners. The evidence of Dr Popovic is now more than 10 years old and it appears that the medical condition of Mr Stjepic’s lumbar spine or his low back condition has changed somewhat over the intervening years.
On balance, I think it is probable that Mr Stjepic’s pain symptomatology, including his low back, lower limb and neck pain, are not of neurological origin and they may well be considered symptoms of the conditions diagnosed by Dr Ng and Dr Knezevic – inflammatory polyarthritis or a chronic pain syndrome.
On the present evidence, I am not persuaded, and it is not made out, that Mr Stjepic’s inflammatory polyarthritis or his chronic pain condition were diagnosed, fully treated or fully stabilised on 11 August 2014. I am satisfied that they were not. For this reason, these conditions cannot be considered ‘permanent’ for the purposes of the Determination and the impairments they cause cannot be assigned a rating under the Impairment Tables.
In regard to the submission that impairments from Mr Stjepic’s low back condition should be assessed under Table 3 in respect of lower limb function, Table 4 in respect of spinal function and Table 5 in respect of mental function, I do not agree.
The first thing to say about these propositions is that Mr Stjepic suffers from a major depressive disorder and a generalised anxiety disorder. These conditions are not properly assessed as impairments. The proposition that impairment of his mental functioning, in terms of concentration, cognition and memory, is attributable to a back condition is far-fetched. To the extent that this proposition is raised on Dr Ponos’ reports of 16 April 2015 and 5 August 2015, I would reject it as it is not consistent with the expert evidence of Dr Golic. As I have said, the evidence of Dr Golic carries more weight, and it is preferred, over that of Dr Ponos.
Secondly, on the present materials, as I have said, there is uncertainty about the nature and cause of Mr Stjepic’s pain symptomatology in his lower limbs. In all likelihood this is attributable to inflammatory polyarthritis on the evidence of Dr Ng or to a chronic pain syndrome on the evidence of Dr Knezevic. As these conditions were not diagnosed, fully treated or fully stabilised as of 11 August 2014, no impairment rating can be assigned.
Even were that not so, on Mr Stjepic’s own evidence and on the evidence of his treating doctors, in my assessment, at the highest, Mr Stjepic’s impairment of spinal function might attract a 10 point rating consistent with a moderate functional impact under Table 4 and his lower limb impairment would attract a rating of 5 points under Table 3. The present evidence does not establish that Mr Stjepic meets the requirements for a rating of 20 or more points under Table 4 – the criteria set out at that level are not met on the present evidence; and it is not presently established that his lower limb impairments would attract a rating of 10 or more points under Table 3 - by his own account, he is able to walk to local shops, and it is not established that he is unable to use stairs without assistance or that he is unable to stand for more than 5 minutes.
Thus, even if I was to accept (and I do not) that Mr Stjepic’s low back condition is the result of his 2002 injury, as Dr Ponos and Dr Ukalovich report, and that it is ‘permanent’ for the purposes of the Determination and s 94 of the Social Security Act, his back and lower limb functional impairments would attract a combined rating under Tables 3 and 4 of 15 points. As will appear, this would not alter the result.
Major depressive disorder and generalised anxiety disorder
The first reference to mental health issues in the materials before me is Dr Ukalovich’s report of panic attacks and anxiety on 26 February 2009.[38] The doctor listed this condition under the heading ‘Does the patient have any other medical conditions that are generally well managed and cause minimal or limited impact on ability to function?’. I note that Dr Ponos referred to medication prescribed in 2009 in her report of 28 August 2014,.[39]
[38] T10 folio 75.
[39] T26 folio 145.
On 19 August 2014, Dr Golic reported that Mr Stjepic “is presenting with depressive mood and prominent anxiety symptoms”, “in my opinion he will require to have robust treatment for his depression and anxiety with antidepressant medication, preferably SSRI medication”.[40]
[40] T22 folios 130-131.
On 28 August 2014, Dr Ponos reported Dr Golic’s diagnoses of major depressive disorder and generalised anxiety disorder and his recommendations for (then) current and future treatment – medication and psychological treatment.[41]
[41] T26 folios 145-146
In a detailed report on 2 April 2015, Dr Golic reported described his psychiatric condition as “chronic” and stated that –
“He would benefit from seeing a Cognitive Behavioural Therapist who speaks his native Slave [sic] language. In my opinion he would require to see a Psychiatrist indefinitely (more than two years) on a monthly to two-monthly basis. He requires frequent follow up by his General Practitioner on at least a monthly basis. He would benefit to see a Clinical Psychologist on a fortnightly basis for the first six months and then his progress to be reviewed.”[42]
[42] ST10 folio 288.
On 16 July 2015, Dr Golic reported that “In my opinion, he has reached maximal psychiatric improvement and his underlying psychiatric symptomatology appears chronic”.[43]
[43] Exhibit 2.
On this evidence it is quite clear that Mr Stjepic’s psychiatric conditions were not fully diagnosed, fully treated or fully stabilised on 11 August 2014.
It follows that under rule 6(3), the impairments caused by these conditions cannot be assigned ratings under the Impairment Tables.
DVT – right leg
The evidence of Dr Stanley, Dr Ponos and Dr Pavic,[44] a general practitioner, refers to a diagnosis of DVT in Mr Stjepic’s right lower leg in December 2013. This complicates the task of differentiating cause and effect in respect of Mr Stjepic’s pain and other symptomatology. It appears that the DVT was successfully treated with Warfarin over a period of months. To my mind, on the present evidence, it is unlikely that Mr Stjepic’s DVT is presently the cause of right leg pain symptoms that are sufficient to cause a functional impairment, although it may have been on 11 August 2014.
[44] T14.
The weight of medical evidence suggests that Mr Stjepic’s DVT was not permanent on 11 August 2014 - it was likely to improve with treatment within two years and it was not fully treated and stabilised at that time.
It follows that any impairment this condition may have caused on 11 August 2014 cannot be assigned a rating under the Impairment Tables.
Hyperlipidaemia
There is insufficient evidence to establish that this condition caused any functional impact or impairment as of 11 August 2014.
That being so, it must be assigned a rating of zero points under rule 11(5).
Vitamin D deficiency
There is insufficient evidence to establish that this condition caused any functional impact or impairment as of 11 August 2014. Furthermore, on Dr Ponos’ 28 August 2014 report, it appears that supplements were administered.[45]
[45] T26 folio 148.
That being so, I am satisfied that this condition was not fully treated and it was not fully stabilised as of 11 August 2014.
For this reason, it cannot be assigned an impairment rating.
Osteopaenia
While Mr Stjepic has referred to osteoarthritis in various forms over time,[46] the first report of a diagnosis of osteopaenia in the materials before me is in the radiological report of Dr Dayanandan in respect of a CT scan on Mr Stjepic’s lumbar spine on 4 December 2014.[47] It appears that Dr Knezevic reviewed the CT scan on 19 January 2015.[48]
[46] See T14 folio 83 and T16 folio 105 for example.
[47] ST4 folio 272.
[48] ST8 folio 276.
The evidence of Dr Ponos, Dr Knezevic and other doctors does not establish that osteopaenia is a diagnosed condition that is fully treated or fully stabilised, or that is the cause of impairment.
That being so, no impairment rating greater than zero can be given.
Left inguinal hernia
Diagnosis of Mr Stjepic’s left inguinal hernia is established by ultrasound reported by Dr Lim on 21 August 2014.[49] Dr Ponos reported on 28 August 2014 that this condition was generally well managed and caused minimal or limited impact on Mr Stjepic’s ability to function and that it “may need surgery in the future”.[50]
[49] T24 folio 137.
[50] T26 folio 148.
The present evidence does not establish that this condition was diagnosed on 11 August 2014 or that it was causing any significant impact on Mr Stjepic’s ability to function at that time.
It cannot, therefore, be assigned an impairment rating.
Helicobactor pylori, arrhythmia, kidney problems
Diagnoses of helicobactor pylori, arrhythmia and kidney problems are not made out on the present materials.
It is not established that these conditions were present on 11 August 2014, or that any one of them was diagnosed, fully treated or fully stabilised at that time. Furthermore, it is not presently established that any of these conditions was the cause of impairment at that time.
That being so, no impairment rating can be assigned.
Impairment assessment
In sum, I am satisfied that as of 11 August 2014 Mr Stjepic does not satisfy the requirement under s 94(1)(b) for 20 points under the Impairment Tables. Even if his lower back condition is accepted as permanent, related impairments would attract a rating, at the highest, of 10 points under Table 4 and 5 points under Table 3 – a total of 15 points.
No other condition attracts a rating greater than 0 points.
This means that Mr Stjepic did not qualify for DSP as of 11 August 2014.
Conclusion
Mr Stjepic was not qualified for indefinite portability of DSP as of 5 December 2013 and he was not qualified for DSP as of 11 August 2014.
I am sympathetic to Mr Stjepic’s long-standing difficulties. The medical issues in his case are complex. If his impairments and related functional barriers do not benefit from the further treatments suggested by his treating doctors, there is no bar on him lodging a fresh claim for DSP and, if granted, to seek grant of indefinite portability.
The decision under review is affirmed.
I certify that the preceding 109 (one hundred and nine) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member .....[Sgd]...................................................................
Administrative Assistant
Dated 17 December 2015
Date of hearing 9 November 2015 Date final submissions received 7 December 2015 Representative for the Applicant Mr V Dangubic Representative for the
RespondentMr D Carroll Solicitors for the Respondent Australian Government Solicitor
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