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

Stoikos and Secretary, Department of Social Services (Social services second review) [2015] AATA 833 (14 September 2015)

Division

GENERAL DIVISION

File Number

2015/1587

Re

Arthur Stoikos

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal
Regina Perton, Member

Date 14 September 2015

Date of written reasons 28 October 2015

Place Melbourne
For reasons given orally during the hearing of this matter, the Tribunal affirms the decision under review.
..................[sgd]..........................
Regina Perton, Member
Catchwords
Disability support pension – whether medical conditions diagnosed, fully treated and stabilised at time of claim or within 13 weeks of that date – points to be allocated - decision affirmed
Legislation
Social Security Act 1991 section 94
Social Security (Administration) Act 1999 section 4 of Schedule 2
Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Regina Perton, Member
28 October 2015

The Tribunal provided oral reasons for its decision at a hearing of this application on 14 September 2015. The applicant, Mr Arthur Stoikos, subsequently requested written reasons for the decision. The reasons for the Tribunal's decision are set out below.
Mr Stoikos, who was then 46 years old, lodged a claim for disability support pension (DSP) with Centrelink on 12 September 2014 after contacting Centrelink on 1 September 2014. On 13 November 2014 a Centrelink officer rejected Mr Stoikos’s claim (the original decision). Centrelink administers DSP for the respondent.
Mr Stoikos sought a review of the original decision by a Centrelink authorised review officer (ARO). On 5 January 2015 the ARO affirmed the original decision.
Mr Stoikos lodged an application for review of the ARO's decision with the Social Security Appeals Tribunal (SSAT) on 8 January 2015. On 3 March 2015 the SSAT affirmed the ARO's decision to refuse DSP on the basis that Mr Stoikos's impairments did not rate 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) on 1 September 2014 or within 13 weeks of that date, namely 1 December 2014 (the relevant period).
On 31 March 2015 Mr Stoikos lodged an application for review of the SSAT decision with this Tribunal.
The issue before the Tribunal is whether Mr Stoikos satisfied the requirements for DSP during the relevant period.
QUALIFICATION FOR DSP DURING THE RELEVANT PERIOD
Were Mr Stoikos’s medical conditions permanent and do they therefore attract an impairment rating of at least 20 points?
Section 94 of the Social Security Act 1991 (the Act) sets out the criteria for a person to qualify for DSP.
94(1) 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.
When deciding whether a person qualifies for DSP, the decision-maker also needs to take into account the provisions of section 4(1) of Schedule 2 to the Social Security (Administration) Act 1999 (the Administration Act). Section 4(1) allows a person who does not qualify for DSP at the date of his application to do so within 13 weeks of that date.
On 10 September 2014 Mr Stoikos’s general practitioner, Dr Minh Mai, completed a medical report indicating that Mr Stoikos suffered from peripheral neuropathy, L4/5 and L5/S1 degeneration and a hernia. Dr Mai indicated that Mr Stoikos had been his patient and had attended his practice since 5 December 2012.
The Tribunal accepts that Mr Stoikos suffered from a number of medical conditions during the relevant period and continues to do so. His impairments included a foot condition, a spinal condition and a hernia. The Tribunal accepts that Mr Stoikos suffered from physical impairments at the time he lodged his claim for DSP. He therefore meets the requirements of section 94(1)(a) of the Act.
The Tribunal must next decide whether Mr Stoikos's medical conditions attract an impairment rating totalling 20 points, subject to satisfying the requirements under sections 6(3) and (4) of the Impairment Tables. The legislation only allows for impairment points to be assigned for a particular condition if it has been fully diagnosed by an appropriately qualified medical practitioner, has been fully treated and fully stabilised, and is likely to persist for more than two years (section 94(1)(b) of the Act).
Section 6 of the Impairment Tables states that:
Applying the Tables
(2)The Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.
…
Impairment ratings
(3)An impairment rating can only be assigned to an impairment if:
(a)the person’s condition causing that impairment is permanent; and
Note: For permanent see subsection 6(4).
(b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
…
Permanency of conditions
(4)For the purposes of paragraph 6(3)(a) a condition is permanent if:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)the condition has been fully treated; and
Note: For fully diagnosed and fully treated see subsection 6(5).
(c)the condition has been fully stabilised; and
Note: For fully stabilised see subsection 6(6).
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
(5)In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
Fully stabilised
(6)For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(bthe person has not undertaken reasonable treatment for the condition and:
(i)     significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii)     there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Note:        For reasonable treatment see subsection 6(7).
Reasonable treatment
(7)For the purposes of subsection 6(6), reasonable treatment is treatment that:
(a)is available at a location reasonably accessible to the person; and
(b)is at a reasonable cost; and
(c)can reliably be expected to result in a substantial improvement in functional capacity; and
(d)is regularly undertaken or performed; and
(e)has a high success rate; and
(f)carries a low risk to the person.
Impairment has no functional impact
(8)The presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned.
Example: A person may be diagnosed with hypertension but with appropriate treatment the impairment resulting from this condition may not result in any functional impact.
Assessing functional impact of pain
(9)There is no Table dealing specifically with pain and when assessing pain the following must be considered:
(a)acute pain is a symptom which may result in short term loss of functional capacity in more than one area of the body; and
(b)chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected; and
(c)whether the condition causing pain has been fully diagnosed, fully treated and fully stabilised for the purposes of subsections 6(5) and (6).
Section 8 of the Impairment Tables sets out what cannot be taken into account.
8Information that must not be taken into account in applying the Tables
(1)...
(2)Unless required under the Tables, the impact of non-medical factors when assessing a person’s impairment must not be taken into account.
Example: Unless specifically referred to by a descriptor in a Table, the following must not be taken into account in assessing an impairment: the availability of suitable work in the person’s local community; English language competence; age; gender; level of education; numeracy and literacy skills; level of work skills and experience; social or domestic situation; level of personal motivation; or religious or cultural factors.
Foot condition
Mr Stoikos suffers from a burning sensation in his feet. He told the Tribunal that the problem had started around 2005. The burning sensation is more intense when he puts on shoes which he cannot wear for very long. He generally wears thongs. His foot problem prevents him from wearing safety boots thereby rendering him unable to return to his previous work as a forklift driver.
Mr Stoikos provided a report from Victor Chong, neurologist, dated 24 September 2012 in which he stated:
I saw Mr Arthur Stoikos in my room today.
Arthur is a 43-year-old gentleman who presented with 7 years’ history of bilateral burning sensation over the dorsum of his feet. He has previously seen Dr Zelko Matkovic, neurologist, who has performed some investigations as well as given him a trial of Amiltriptyline. Arthur told me that his investigations were normal, but he is not able to tolerate the side effects of the medication. He still has constant burning sensation over the back of his feet on both, which is made worse when he puts his shoes on. As a result, Arthur told me that he has to take his shoes off every hour or so.
In yearly reviews of Mr Stoikos’s employability between August 2011 and November 2014, the assessors determined that his foot condition was permanent. In the latest Centrelink Job Capacity Assessment (JCA) report, dated 12 November 2014, the appraiser stated:
Peripheral nerve damage to feet. Med cert notes has seen specialist, trialled medications and that “nothing can be done to alleviate the problem.” As such considered likely to persist for more than 24 months.
…
Medical certificate notes unable to wear closed shoes (is able to wear thongs), unable to sit/stand for longer than 30 minutes without pain. Client indicated that he has no issues with driving and is able to complete all household and community access tasks…
Mr Stoikos is recorded as having told the SSAT at the hearing on 3 March 2015 that
he has constant burning in his feet. Even wearing thongs is difficult. His sleep is affected and he has to hang his legs out of the bed. His ability to stand varies depending on the level of his back pain. He can stand for perhaps 15-20 minutes. He is able to walk to the local shops. He is able to do his own shopping and walk around the supermarket, but he goes when it is quiet. He does not use a walking aid. He has problems on stairs because of a knee condition, as well as his back and feet, but can usually manage stairs. However all of these activities are difficult because of pain, which he has all of the time.
Mr Stoikos’s evidence to this tribunal was of increasing difficulty with standing and with driving to the shops rather than walking.
In a letter of support dated 1 July 2015, Dr Mai stated that:
Mr Stoikos began seeing me for his feet problem on 05 December 2012, and his back problems began 12 November 2013.
…
With regards to his legs/feet, he has not been able to walk more 10 minutes before his pain becomes unbearable, such that he needed to drive to local/nearby shops to do his shopping.
The Tribunal is satisfied that the peripheral neuropathy from which Mr Stoikos suffers has been fully diagnosed, fully treated and fully stabilised.
Table 3 of the Impairment Tables concerns Lower Limb Function, and therefore feet. A person is allocated zero points in the following circumstances:
There is no functional impact on activities requiring use of the lower limbs.
(1) The person can:
(a) walk without difficulty on a variety of different terrains and at varying speeds; and
(b) walk without difficulty around the home and community; and
(c) kneel or squat and rise back to a standing position without difficulty; and
(d) stand unaided for at least 10 minutes; and
(e) use stairs without difficulty.
Five points are awarded in the following circumstances:
There is a mild functional impact on activities using lower limbs
(1) At least one of the following applies:
(a) the person has some difficulty walking to local facilities (e.g. shops or bus-stop); or
(b) the person has some difficulty walking around a shopping mall or supermarket without a rest; or
(c) the person has some difficulty climbing stairs; and
(2) At least one of the following applies:
(a) the person is unable to stand for more than 10 minutes;
(b) the person can mobilise effectively but needs to use a lower limb prosthesis or a walking stick.
To obtain 10 points for lower limb function, the following criteria must be met:
There is a moderate functional impact on activities using lower limbs.
(1) At least one of the following applies:
(a) the person is unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities; or
(b) the person is unable to use stairs or steps without assistance; or
(c) the person is unable to stand for more than 5 minutes; and
(2) The person is able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket.
(3) This impairment rating level includes a person who can:
(a) move around independently using a wheelchair and can independently transfer to and from a wheelchair (e.g. can use a wheelchair accessible toilet independently); or
(b) move around independently using walking aids (e.g. quad stick, crutches or walking frame).
Note: The person may require additional time and effort to move around a workplace, may need to use disabled access entries, lifts and toilets, and may not be able to access some areas of a workplace or training facility.
Based on the evidence provided to the Tribunal and to earlier decision makers, the Tribunal is not satisfied that during the relevant period, Mr Stoikos was eligible to be awarded 10 points on this Impairment Table.
In the JCA report, the occupational therapist who did the appraisal awarded 0 points in the report dated 12 November 2014 (during the relevant period). He stated:
As the client is able to stand for more than 10 minutes and does not need the use of a use of a lower limb prosthesis or a walking stick an impairment rating of 0 is assigned for this condition.
The SSAT determined that an assignment of five points was appropriate:
19. After considering the evidence outlined above, the tribunal finds that Mr Stoikos’s symptoms from peripheral neuropathy attract a 5 point impairment rating under Table 3 and did so at the date of claim. This is because he has difficulty (pain) when walking to local facilities, around a shopping centre and climbing stairs, but is able to manage these activities. Although he can stand for more than ten minutes, it is evident that his level of impairment is quite inconsistent with a nil rating under Table 3 and that there is a mild functional impact.
During the hearing, the Tribunal told Mr Stoikos that the maximum number of points he would be awarded would be five points in relation to his peripheral neuropathy. The respondent had submitted that it should be zero points. The Tribunal stated that rather than determine whether it should be zero or five points, it would proceed to see whether his other medical conditions could attract impairment rating points.
Mr Stoikos’s back condition
The Tribunal accepts that Mr Stoikos suffered from back pain during the relevant period.
A lumbar spine CT scan undertaken on 20 November 2013 revealed degenerative disc disease at L1/L2 and L5/S1. Dr Mai, in his report to Centrelink dated 10 September 2014, stated that his patient suffered from disc degeneration at L4/L5 and L5/S1 which was diagnosed on 21 November 2013 following a CT scan. Dr Mai stated that Mr Stoikos’s back condition led to decreased movement, endurance and dexterity. Dr Mai stated that Mr Stoikos had commenced taking Mobic on 22 November 2013. Other current treatment was described as physiotherapy. Future treatment was to be continuing physiotherapy and medication. Dr Mai also noted that neither he nor any other doctor at his clinic had referred Mr Stoikos to a specialist as at that date.
The JCA the report dated 12 November 2014 recorded that Mr Stoikos had only undertaken one session of physiotherapy as at that date. The assessor determined that Mr Stoikos had not engaged in all reasonable treatment, which would include further investigation and ongoing physiotherapy and therefore could not be considered fully treated and stabilised.
Mr Stoikos told the SSAT and this Tribunal that he had not found physiotherapy of assistance. However, during the relevant period, which ended on 1 December 2014, he does not appear to have tried more than one appointment. There is no evidence provided from a physiotherapist or indeed his general practitioner that physiotherapy would be of no assistance. Dr Mai in his report to Centrelink dated 10 September 2014 referred to future treatment as consisting of both physiotherapy and medication.
The Tribunal is not satisfied that one visit to a physiotherapist constitutes being fully treated and stabilised. The Tribunal notes that Mr Stoikos had not attended a specialist as at the relevant period. Accordingly, the Tribunal finds that Mr Stoikos’s back condition was diagnosed but not fully treated and fully stabilised during the relevant period. Therefore no points can be awarded for that condition.
Hernia
The Tribunal accepts that Mr Stoikos had been diagnosed with a hernia at the date of his application for DSP.
In a letter dated 8 August 2014, The Royal Melbourne Hospital confirmed that Mr Stoikos had been placed on its elective surgery waiting list under the care of the Nephrology Surgical Unit to undergo a procedure. The Hospital stated that Mr Stoikos had been placed on the semi urgent list and would be advised of the date of admission two to three weeks prior to that date.
On 10 September 2014 Dr Mai reported that Mr Stoikos’s umbilical hernia was generally well managed and caused limited functional impact and that he was awaiting surgery. The SSAT reported that the surgery had taken place in February 2015.
Mr Stoikos is not eligible for any points in relation to his hernia as he was awaiting further treatment, namely surgery, which took place after the relevant period. He was therefore diagnosed but not fully treated and fully stabilised at the relevant period.
Other conditions
Mr Stoikos told the SSAT that he also suffered from right hip pain, a knee condition and a shoulder condition. In August 2011 his then general practitioner, Dr Vincent Strangio, stated that Mr Stoikos had
ongoing issues with pain in his Left knee, and Left shoulder and discomfort in his lower extremities (feet).
He was operated on Nov 2010 at RMH with arthroscopy, however has minimal benefit from his operation, and ongoing pain since. He has also had cortisone injected into his shoulder, June 2011, however his shoulder pain continues. His feet presumed neuropathic pain has been reviewed by specialist, with diagnosis unclear, and he continues to suffer from this.
He will now be undertaking Osteopathy/Physiotherapy in the coming weeks to better manage the pain.

There is no reference in the medical reports during the relevant period to the conditions cited by Dr Strangio in his report dated more than three years earlier. In his letter dated 1 July 2015 − seven months after the end of the relevant period – Dr Mai mentioned insomnia and unpleasant side effects from the prescribed medication which Mr Stoikos commenced in November 2014. The Tribunal does not have evidence before it to allocate any points for the other conditions during the relevant period.
Conclusion
The Tribunal finds that Mr Stoikos does not meet section 94(1)(b) of the Act during the relevant period as he has not been allocated 20 points for his impairments under the Impairment Tables.
The Tribunal notes that Mr Stoikos stated in an email dated 8 July 2015 which accompanied Dr Mai’s letter of support dated 1 July 2015 that his symptoms had all begun before September 2014. The Tribunal accepts that may well be the situation but for points to be allocated, the impairments must also be fully treated and fully stabilised during the relevant period. The Tribunal is unable to allocate points based on a person’s condition several months after the claim for DSP is lodged. However, Mr Stoikos is entitled to lodge a fresh claim for DSP at any time and the points allocation will be based on the facts at that time.
Decision
For the reasons given orally during the hearing, the Tribunal affirms the decision under review.

I certify that the preceding 41 (forty-one) paragraphs are a true copy of the reasons for the decision herein of Member R Perton
[sgd]...................................................
Administrative Assistant
Dated 28 October 2015

Date of hearing 14 September 2015

Applicant In person

Advocate for the Respondent Ms Kellie Latta – Sparke Helmore

[2015] AATA 833

14 September 2015

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Division	GENERAL DIVISION
File Number	2015/1587
Re	Arthur Stoikos
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

Tribunal	Regina Perton, Member
Date	14 September 2015
Date of written reasons	28 October 2015
Place	Melbourne

Date of hearing	14 September 2015
Applicant	In person
Advocate for the Respondent	Ms Kellie Latta – Sparke Helmore