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

[2015] AATA 538

Stojcevski and Secretary, Department of Social Services (Social services second review) [2015] AATA 538 (23 July 2015)

Division	GENERAL DIVISION
File Number	2014/2676
Re	Lesley Stojcevski
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Mr P W Taylor SC, Senior Member
Date	23 July 2015
Place	Sydney

The decision under review is affirmed.

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

Mr P W Taylor SC, Senior Member

CATCHWORDS

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

LEGISLATION

Social Security Act 1991

Social Security (Administration) Act 1999

SECONDARY MATERIALS

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

Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011Secondary

REASONS FOR DECISION

Mr P W Taylor SC, Senior Member

23 July 2015

1. Mrs Stojcevski, who was then aged 59, unsuccessfully applied for disability support pension on 8 October 2013. The conditions she indicated as responsible for her disability included depression, pain on the left side of her chest, and the residual effects of a heart attack.  In its 23 April 2014 decision the Social Security Appeals Tribunal (the “SSAT”) affirmed the rejection of her claim.

2. Mrs Stojcevski’s disability support pension qualification depends on satisfaction that within 13 weeks after her 8 October 2013 application (that is by 7 January 2014): see Social Security (Administration) Act 1999 Schedule 2 clause 4(1):

   (a)she had “permanent” conditions – in the sense that they were fully diagnosed, treated and stabilised, and likely to persist for more than two years: see Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 subss 6(3)-(7) (“the 2011 Impairment Determination”);

   (b)her “permanent” medical conditions resulted in functional impairments affecting her capacity to work and were likely to persist for more than two years: see the 2011 Impairment Determination ss 3, subss 6(3) and (8);

   (c)her functional work impairments had a rating of at least 20 points under the relevant Impairment Tables: see ss 26 and 94(1)(b) of the Social Security Act 1991 (“SSA 1991”) and the 2011 Impairment Determination Part 3;

   (d)either her 20 point rating derived from a single Impairment Table or she had actively participated in a program of support: see SSA 1991 ss 94(1)(c); 94(2)(aa), 94(3B), 94(3C) and 94(5) and the Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (“the 2011 Participation Determination”);

   (e)her functional impairments themselves prevented her, within the next two years, from either doing any (ordinarily remunerated) work for at least 15 hours per week, or undertaking a relevant training program: see SSA 1991 ss 94(1)(c); 94(2)(a), 94(2)(b) and 94(5).

   RULES FOR DETERMINING AN IMPAIRMENT RATING

3. The 2011 Impairment Determination, with its prescriptive rules and Tables, governs the assessment of any rating for the impairments resulting from Mrs Stojcevski’s medical conditions.  Significant aspects of the 2011 Impairment Determination include the following:

   (a)a rating can only be applied to levels of functional impairment, rather than to the diagnosed condition responsible for the impairment:  see the 2011 Impairment Determination subss 5(2)(d), 6(8) and 11(5);

   (b)a rating can only be assigned where conditions are (i) fully diagnosed, treated and stabilised, (ii) cause a functional impairment, and (iii) the impairment is likely to persist for more than two years: see the 2011 Impairment Determination subss 6(1)-6(4);

   (c)diagnosed and relevantly treated chronic pain may itself be characterised as a relevant condition, but must be rated by assessment of its impact on the person’s functional abilities:  see the 2011 Impairment Determination subs 6(9);

   (d)past and planned reasonable treatment, corroborated diagnosis, and the likelihood of significant functional improvement, are relevant to the assessment of a condition as “fully diagnosed, treated and stabilised”:  see the 2011 Impairment Determination subss 6(4)-(7);

   (e)the Tables provide descriptions of various levels of functional impact (indicated by italicised type). Those levels are accompanied by particular examples of activities, abilities, symptoms or limitations (typically numerically itemised and indicated by ordinary font text). The functional impact of an impairment is to be assessed “by reference to” the listed examples: see the 2011 Impairment Determination subss 5(2)-5(3);

   (f)a person’s impairment rating must be assessed on the basis of what the person can, or could, do normally or habitually, not on the basis of that they choose to do, or on what they can only do rarely: see the 2011 Impairment Determination subss 6(1) and 11(3);

   (g)the functional assessment and rating cannot take into account either uncorroborated symptoms or non-medical factors:  see the 2011 Impairment Determination subs 8;

   (h)a functional impairment must be assessed by applying the Table specific to the particular impairment, and ratings for the same impairment (even where contributed to by several conditions) cannot be assigned under multiple Tables: see the 2011 Impairment Determination subss 10(2) - 10(6);

   (i)in choosing between levels of impairment, the relative descriptors should be compared to determine which rating is to be applied: see the 2011 Impairment Determination subs 11(2);

   (j)if an impairment straddles two rating values, the higher rating can only be assigned if all of its descriptors are satisfied: see the 2011 Impairment Determination subs 11(1)(c).

   (k)only the specified rating values (and no intermediate values) can be assigned: see the 2011 Impairment Determination subs 11(1)(b).

   THE MEDICAL EVIDENCE

4. The information Mrs Stojcevski provided to support her claim for disability support pension identified a range of conditions and symptoms as the cause of her impaired abilities.  The most complete, but not entirely satisfactory, statement of her relevant conditions is in an undated Medical Report form completed by her general practitioner, Dr Hyare, and provided to Centrelink in early December 2013.  In that report Dr Hyare identified four relevant conditions affecting Mrs Stojcevski.  They were, (i) anxiety and depression, (ii) chest wall pain, (iii) ischaemic heart disease and (iv)hypertension.  Dr Hyare considered that Mrs Stojcevski was unable to do even 8 hours of work per week.

   Hypertension

5. Dr Hyare’s report referred to Mrs Stojcevski’s history of hypertension, but said it had minimal adverse impact on her ability to function.  The SSAT reasons for decision recorded Mrs Stojcevski giving a similar account in her evidence to that Tribunal.  Her evidence in the present proceedings was to similar effect.  Consequently, Mrs Stojcevski’s hypertension does not give rise to a rateable functional impairment.

   Chest pain

6. In one part of his undated 2013 medical report to Centrelink, Dr Hyare disclosed chest pain as a condition that had a significant impact on Mrs Stojcevski’s ability to function.  Although he said she had suffered this kind of pain since her heart attack, he reported that “all tests have been clear” and expressed the view that it was “not cardiac”.  The context suggests the “tests” to which he referred related to cardiac function.  Perhaps consistent with that view, Dr Hyare appears to have regarded Mrs Stojcevski as having “musculoskeletal pain secondary to back pain”.

7. The immediately following pages of the standard Centrelink “medical report” form Dr Hyare completed required him to address 11 specific questions about the particular medical conditions he considered had the most impact on Mrs Stojcevski’s functional ability.  Dr Hyare answered those questions, but only in relation to two conditions - (i) ischaemic heart disease, and (ii) anxiety and depression.

   Ischaemic heart disease: 

8. Dr Hyare’s 2013 report indicated that Mrs Stojcevski had a confirmed diagnostic history of ischaemic heart disease going back to February 2011.  He recorded that she had coronary artery stents inserted in February 2011 and that she would continue to have regular periodic specialist reviews by a cardiologist.  He described her current symptoms as occasional chest pain, “mixed with chest wall pain” since the stent procedure, and the ready onset of breathlessness.  This resulted in her having poor endurance.  Dr Hyare thought these symptoms would continue for up to two years, but he was unsure about their likely effect on Mrs Stojcevski’s ability to work.

9. It appears somewhat surprising that Dr Hyare reported Mrs Stojcevski’s complaints of chest wall pain as one of the functional impacts of her ischaemic heart disease.  It is surprising because, earlier in the same report, Dr Hyare had previously described her chest wall pain as “not cardiac” and apparently “musculoskeletal secondary to back pain”.  Perhaps what he meant was that the pain appeared to be associated with Mrs Stojcevski’s ischaemic heart disease, but was definitely not the result of any actual cardiac insult.  This possibility has some relevance, as I shall explain, both to the characterisation of Mrs Stojcevski’s chest pain as “permanent” and also to the functional impairment rating it might attract.

   Anxiety and depression

10. Dr Hyare reported that Mrs Stojcevski suffered from anxiety and depression as a result of multiple stressors.  He reported its onset in mid 2011, but described it as a long standing condition, and evidence Mrs Stojcevski gave suggests the 2011 onset estimate may considerably underestimate the actual period involved.  However, Dr Hyare said his diagnosis was presumptive and that, despite medication for depression and muscle pain, as well as referral to a psychologist, she had not seen a psychiatrist or clinical psychologist for specialist diagnosis and treatment.  He noted that Mrs Stojcevski’s then current symptoms were low mood, insomnia, poor concentration, pervasive feelings of helplessness and self harming ideation.  He considered that her condition meant she would likely have poor concentration, decision making and problem solving skills, as well as limited endurance.  Dr Hyare thought Mrs Stojcevski’s anxiety and depression would continue for more than two years.  But he was actually uncertain about what real practical impact the condition would have on her ability to work within that two year period.

    PERMANENCE AND ELIGIBILITY FOR IMPAIRMENT RATING

11. Mrs Stojcevski’s hypertension and heart disease do not, both on her own evidence and the report of Dr Hyare, result in any significant functional impairment.  Consequently they cannot merit anything other than a zero impairment point score.

12. Mrs Stojcevski’s anxiety and depression is long standing (to use Dr Hyare’s description).  But, so far as the evidence reveals, it has only been the subject of a presumptive diagnosis.  There is no history of diagnosis or treatment by a psychiatrist.  Nor is there any available information from the psychologist to whom Dr Hyare referred Mrs Stojcevski for treatment.  In these circumstances it is, in my view, not appropriate to conclude that Mrs Stojcevski’s anxiety and depression is relevantly “permanent” (in the sense described in paragraphs 2(a) and 3(b) above).  Consequently it cannot be allocated a point rating under 2011 Impairment Determination.

13. Even if I was satisfied that Mrs Stojcevski’s anxiety and depression were relevantly “permanent”, I would not accord them any more than a zero point rating.  Mrs Stojcevski told the SSAT that it did not have any effect on her ability to work and was not one of the reasons for her either ceasing to work or claiming disability support pension.  That evidence, which Mrs Stojcevski substantially repeated in the present hearing, would not on its own necessarily preclude some impairment point rating being awarded under the relevant impairment tables.  But Dr Hyare’s description of its limited functional impact (see paragraph 10 above) also tends against demonstrating that Mrs Stojcevski could satisfy the requirements to achieve even a five point rating under the relevant Impairment Table - Table 5 - Mental Health Function.

14. The characterisation of Mrs Stojcevski’s chest pain as a relevantly permanent condition presents particular difficulties - having regard to the way it was addressed in Dr Hyare’s 2013 report (see paragraphs 6 to 9 above).  On one view it is a chronic condition that has been relevantly investigated and has no identifiable cause (because of the reference in the 2013 report to “all tests” being clear).  On another view there is simply no specific evidence detailing what investigations have been undertaken into MrsStojcevski’s chest wall pain.  Without that level of detail, the condition cannot be characterised as relevantly “permanent”.

15. Attempts were made to resolve these difficulties by contacting Dr Hyare, and asking him to respond to a detailed letter the respondent addressed to him (with MrsStojcevski’s consent and my active encouragement).  Dr Hyare professed a willingness to respond to the request, but never did.  When later contacted by telephone in the course of the hearing, he repeated his willingness, but did not actually provide any information before the hearing was completed.

16. Given the possible ambiguity to which I referred in paragraph 14 above, in the absence of additional and fully considered evidence from Dr Hyare I was reluctant to conclude that Mrs Stojcevski’s chest pain was not a fully diagnosed and relevantly “permanent” condition.  That reluctance was underscored by an awareness of the many certificates Dr Hyare (and another general practitioner in the same practice) had provided.  Those certificates covered most of the period from June 2011 to January 2014, and consistently certified that Mrs Stojcevski was unfit for work.  The typical reason for her incapacity was variously described as “right upper quadrant pain”, “right sided pain”, “upper abdominal pain”, “thoracic backpain” or “backpain”.  All of those descriptions are at least potentially consistent with the description in Dr Hyare’s 2013 report of Mrs Stojcevski’s “chest wall pain” as being “musculoskeletal pain secondary to back pain”.  Perhaps more significantly, various reports suggested that Mrs Stojcevski’s pain complaints had been treated with multiple anti-inflammatory medication and investigated (as far back as June 2011) by blood tests, ultrasound and abdominal CT scan.

17. Given (i) the extensive history of Dr Hyare’s certificates of Mrs Stojcevski’s unfitness for work, (ii) the appearance that he had indeed arranged various different types of investigation to determine the origin of Mrs Stojcevski’s chest pain complaints and (iii) his professed willingness to provide more complete details of Mrs Stojcevski’s medical history and treatment, I suggested to the Respondent that the appropriate course might simply be to remit the matter to the Secretary, to reconsider Mrs Stojcevski’s application in the light or whatever additional material Dr Hyare provided.  The Respondent regarded that proposal as dependent on the problematic assumption that Dr Hyare would indeed provide additional information.  Because that assumption was problematic, the Respondent considered that the proposed remittal was less satisfactory than proceeding to determine the review proceedings on the basis that Mrs Stojcevski’s chest pain should be accepted as chronic, and relevantly “permanent”, and given an impairment rating in the light of the actual evidence of its functional impact.

18. The Respondent’s preferred approach was a sensible and practical way to proceed. Mrs Stojcevski did not object to that course being taken. If its adoption required a specific legislative justification, that could be found in s 25(4A) of the Administrative Appeals Tribunal Act 1975.

    MRS STOJCEVSKI’S IMPAIRMENT RATING 

19. Mrs Stojcevski gave evidence that her upper abdominal and chest wall pain (variously described as chest wall pain and right upper quadrant pain) had the most significant impact on her daily functioning.  It is, however, necessary to go beyond that generality and assess both the actual nature and extent of Mrs Stojcevski’s pain complaints and the effect her reported pain has on her daily functioning - as it was in the relevant period from 8 October 2013 until 7 January 2014..

20. Mrs Stojcevski located her soreness and pain as originating around the level of T9/T10 (ie in lower part of the thoracic spine just below the level of her shoulder blades).  She said it tended to radiate into the lower rib cage area, and became very sore.  She pointed to an area on the right lateral aspect of her rib cage approximately just above elbow level.  She complained that it hurt her to move her upper arms at a certain level.  She demonstrated the movement by raising her arms laterally to approximately shoulder height (with elbows bent, fingers pointing forwards and palms down) and turning her upper body at the waist to move from left to right.  She said that she found it difficult to wash her hair and to peg washing on the line. 

21. At the time of her October 2013 claim Mrs Stojcevski lived in a shed at the rear of her mother’s property in Bundanoon.  She stayed there for about 6 months.  During much of her time there she was working on preparing her case for family court proceedings involving her husband.  She had to go through boxes and boxes of financial records and other information, prepare a statement and compile relevant spreadsheets.  

22. She later moved to an address in the Wollongong area, where she lived alone in a studio at the rear of the house she and her estranged husband owned.  The studio did not have its own internal bathroom and laundry, but it did have a sink, fridge and microwave.  Mrs Stojcevski said that her usual daily routine there was to get up in the morning, perhaps make a cup of coffee, and usually have raw porridge for breakfast.  Fairly regularly she would walk to the service station across the road to buy cigarettes, and perhaps stop and chat with a friend at a nearby car wash business.  After going back home she might do some washing and perhaps some gardening.  Occasionally she would wash her small dog in the external laundry area.  She rarely cooked and would usually eat little more than soup and bread and butter.  She could do vacuuming, mopping and sweeping, but they would bring on the pain in her chest after about half an hour or an hour.  The pain would typically go away if she lay down for a couple of hours.

23. Mrs Stojcevski does not use public transport and would normally drive a car once or twice a week.  This would involve trips to the Centrelink office at the nearby shopping centre, and visits to the supermarket.  At the supermarket she was able to walk around the aisles with a trolley, select the few items she needs (and can afford) and carry them back to the car.  Occasionally Mrs Stojcevski would drive to visit her mother at Bundanoon.  For longer trips of that kind she might take some Panadeine for the pain in her chest.

24. The Respondent correctly submitted that the only (or at least the most relevant) Table in the 2011 Impairment Determination that can be used to determine a rating for Mrs Stojcevski’s functional impairments because of her chest pain is “Table 1 - Functions requiring Physical Exertion and Stamina”.  The relevant parts of the Table are set out below:

    Table 1 - Functions requiring Physical Exertion and Stamina

Points

Descriptors

0

There is no functional impact on activities requiring physical exertion or stamina.

(1)        The person:

(a)        is able to undertake exercise appropriate to their age for at least 30 minutes at a time; and

(b)        has no difficulty completing physically active tasks around their home and community.

5

There is a mild functional impact on activities requiring physical exertion or stamina.

(1)        The person:

(a)        experiences occasional symptoms (e.g. mild shortness of breath, fatigue, cardiac pain) when performing physically demanding activities and, due to these symptoms, the person has occasional difficulty:

(i)         walking (or mobilising in a wheelchair) to local facilities (e.g. a corner shop or around a shopping mall, larger workplace or education or training campus), without stopping to rest; or

(ii)         performing physically active tasks (e.g. climbing a flight of stairs or mobilising up a long, sloping pathway or ramp if in a wheelchair) or heavier household activities (e.g. vacuuming floors or mowing the lawn); and

(b)        is able to perform most work-related tasks, other than tasks involving heavy manual labour (e.g. digging, carrying or moving heavy objects, concreting, bricklaying, laying pavers).

10

There is a moderate functional impact on activities requiring physical exertion or stamina.

(1)        The person:

(a)        experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person:

(i)         is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or

(ii)         has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and

(b)        is able to:

(i)         use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and

(ii)         perform work-related tasks of a clerical, sedentary or stationary nature (that is, tasks not requiring a high level of physical exertion).

20

There is a severe functional impact on activities requiring physical exertion or stamina.

(1)        The person:

(a)        usually experiences symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing light physical activities and, due to these symptoms, the person is unable to:

(i)         walk (or mobilise in a wheelchair) around a shopping centre or supermarket without assistance; or

(ii)         walk (or mobilise in a wheelchair) from the carpark into a shopping centre or supermarket without assistance; or

(iii)        use public transport without assistance; or

(iv)        perform light day to day household activities (e.g. folding and putting away laundry or light gardening); and

(b)        has or is likely to have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours.

1. The evidence Mrs Stojcevski gave about her usual activities, even though it principally concerned what she did at the Wollongong house after returning from Bundanoon in mid 2014, is probably consistent with her abilities in the few preceding months, and within the 13 week period relevant to the assessment of her October 2013 claim.  Those abilities are quite inconsistent with any possibility that she was then entitled to a 20 point impairment rating under Table 1.

2. Conceptually Mrs Stojcevski’s inability to establish a 20 point rating under a single Impairment Table would not necessarily preclude her from having a disability support pension qualification.  But that conceptual possibility is irrelevant in the present case.  Even if Mrs Stojcevski could establish a cumulative 20 point rating under several impairment tables (and I have found she cannot), she would then also have to establish that she had complied with the program of support requirement (see paragraph 2(d) above).  But Mrs Stojcevski does not dispute that she has not in fact undertaken a program of support.

   DECISION

3. Mrs Stojcevski cannot establish her disability support pension qualification.  The decision under review is affirmed.

I certify that the preceding 27 (twenty-seven) paragraphs are a true copy of the reasons for the decision herein of SM P W Taylor SC

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

Dated 23 July 2015

Date of hearing	26 June 2015
Applicant	In person
Solicitors for the Respondent	Department of Human Services