Strbac and Secretary, Department of Social Services (Social services second review)
[2016] AATA 491
•13 July 2016
Strbac and Secretary, Department of Social Services (Social services second review) [2016] AATA 491 (13 July 2016)
Division
GENERAL DIVISION
File Number(s)
2015/6218
Re
Miodrag Strbac
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Mr S. Webb, Member
Date 13 July 2016 Place Sydney The decision under review is affirmed.
...........................[sgd].............................................
Mr S. Webb, Member
CATCHWORDS
SOCIAL SECURITY – disability support pension claim – physical and psychological impairments – treatment yet to be undertaken or completed – cost factors in not obtaining treatment - assessment of permanent impairments and rating of functional loss – rating of 10 points not sufficient to meet minimum threshold – decision affirmed
LEGISLATION
Social Security Act 1991, s 94
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Social Security (Active Participation for Disability Support Pension) Determination 2014
REASONS FOR DECISION
Mr S. Webb, Member
13 July 2016
Miodrag Strbac claimed disability support pension (DSP). His claim was rejected. He has pressed his rights of review, thus far without success.
The facts
In 2010 Mr Strbac fell at work and injured his right shoulder and back. He experienced debilitating pain symptoms. His medical conditions were extensively investigated in the context of a claim for compensation. That claim did not succeed.
Nevertheless, Mr Strbac’s right shoulder and lumber spine were found to require surgical treatment. As the medical records in evidence clearly demonstrate, chronic pain and secondary depression were features of his medical condition.
In 2013, he claimed DSP. His claim was rejected by successive decision-makers. On 11, November 2014, this Tribunal, (differently constituted) affirmed the decision rejecting his claim.[1]
[1] T36.
On 12 May 2015, Mr Strbac made a further claim for DSP.[2] In this claim, Mr Strbac referred to “Back, Right shoulder, left shoulder, right knee” disabilities, illnesses or injuries.[3]
[2] T39.
[3] Ibid, folio 214.
In an undated medical report for DSP, Dr Kafiris, Mr Strbac’s treating general practitioner, identified the following medical conditions –
‘Lumbar spine acute low back injury with instability/L5/S1 retrolisthesis & disc disruption + spinal stenosis with intermittent neurogenic claudication + secondary major depression”[4]
“Right shoulder glenohmueral labral tear. Persistent pain.”[5]
“1) Gall bladder polyps
2) Fatty liver
3) Right knee pain – pain on walking
4) Left shoulder pain – shooting, stabbing aching pain – needs further investigation.”[6]
[4] T40 folio 233.
[5] Ibid, folio 236.
[6] Ibid, folio 239.
On 8 July 2015, a Job Capacity Assessor reported that Mr Strbac had a “Baseline Work Capacity: 8-14 hours per week” and “Capacity for work within 2 years with Intervention: 15-22 hours per week” – the interventions were “Psychiatric services/treatment”, “Job-seeking (specialised)” and “Cognitive Behaviour Therapy”.[7]
[7] T42 folios 253-254.
On 9 July 2015, a delegate of the Secretary decided to reject Mr Strbac’s claim for DSP.[8]
[8] T43.
On 7 August 2015, this decision was affirmed by an Authorised Review Officer.[9]
[9] T45 and T46.
On 5 November 2015, the rejection decision was affirmed by the Social Services and Child Support Division of this Tribunal. The member also decided to “set aside the decision not to grant a newstart allowance activity test exemption, and substitute a decision granting an exemption”.[10] In respect of the latter decision about the newstart activity test exemption, no issue has been raised or taken by either party in these proceedings. I will not deal any further with that matter.
[10] T2 folio 3.
Issues
The issue to be decided is whether Mr Strbac qualified for DSP at the time of his claim. The qualification requirements for DSP are set out in s 94 of the Social Security Act 1991 (the Act). The key criteria are set out in s 94(1) –
(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;
…
For DSP to be payable pursuant to a claim, these criteria must be satisfied on the day the claim was lodged or within 13 weeks thereafter (the qualification period). If the qualification criteria are not satisfied within this period, it is open for the person to make a fresh claim to test eligibility at a later time.
For this reason, Mr Strbac’s impairments must be assessed during the qualification period commencing on 12 May 2015 and ending on 11 August 2015.
Impairment
The Secretary accepts, correctly, that Mr Strbac had medical conditions that caused impairment during the qualification period.
In reference to that period, on the evidence of Dr Kafiris, I am satisfied that Mr Strbac had impairments affecting his –
(a)lumbar spine;
(b)right shoulder;
(c)cognitive and psychological function;
(d)left shoulder; and
(e)right knee.
It appears that Mr Strbac had gall bladder polyps and a fatty liver. But the extent to which these medical conditions caused functional impairment within the claim period is not presently established by evidence.
Impairment rating
For the purposes of s 94(1)(b), Mr Strbac’s impairments must be assessed under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination).
A rating of 20 or more points is required.
The determination sets out rules that must be followed. Only impairments that result from ‘permanent’ medical conditions, and that are expected to persist for more than 2 years, may be given a rating under the Impairment Tables set out in Part 3 of the Determination.
For a medical condition to be ‘permanent’ it must be fully diagnosed, fully treated and fully stabilised: s 6(4) When determining whether a condition has been fully treated, regard must be had to the matters set out in s 6(5). Sections 6(6) and (7) set out the tests that are applied when determining whether a condition is fully stabilised.
Lumbar spine
Mr Strbac’s lumbar spine condition is well documented. It has been diagnosed and treated by Dr Kafiris and Dr Giblin, a neurologist.[11] Pain symptoms that result from this condition have been assessed by Dr Lam, a specialist pain medicine physician.[12] Physical lumbar spine pathology is confirmed by MRI scans taken on 11 October 2010[13] and 4 October 2012.[14] The persistent nature of the condition is confirmed by Dr Kafiris[15] and Dr Rosenberg, an orthopaedic surgeon. On 26 October 2015, Dr Rosenberg reported to Dr Kafiris –
“Overall symptoms have gradually worsened. Several months after the initial injury he noted discomfort into his legs. Conservative measures have not helped. He has received L5 nerve root blocks that have not helped. Pain remains down the front of his thighs as well as down the back of his to his calves. The back troubles him the most however, particularly with sitting and walking…
Clinically he has a wide based unsteady gait and he is very tender in the lower spine and gluteal region. Mobility is limited due to pain. At rest neurology appears normal. Straight leg raise however is hesitant causing significant back pain.
A CT scan reveals significant facet joint disease at the lumbro-sacral level. It is retrolisthesised and there is a small bulge, all of which suggests an unstable disc. An MRI scan reveals similar findings.
Realistically he needs an up to date MRI scan but his story suggests instability at the lumbrosacral level…”[16]
[11] T17 and T19.
[12] T21.
[13] T7.
[14] T20 folio 134.
[15] T40 folios 233- 235, T44 and T47.
[16] Filed by the Applicant on 31 March 2016.
Even though Dr Rosenberg’s report is well outside the qualification period, it confirms Dr Kafiris’ assessment in his medical report for Mr Strbac’s DSP claim.
It is clear that Dr Kafiris and Dr Rosenberg consider that surgery is appropriate treatment for this condition. On 4 March 2016, Dr Kafiris reported –
“Following left shoulder surgery post rehabilitation, he will be placed on the medicare waiting list for lumbar fusion surgery, hopefully by orthopaedic surgeon, Dr Rosenberg. This will again require a period of about 6 months rehabilitation.
…
He will likely be totally incapacitated for the next approximate 24 months and partially incapacitated for at least 6 months thereafter.”[17]
[17] Filed by the Applicant on 4 March 2016.
The timing of surgical treatment for Mr Strbac’s lumbar spine condition is very uncertain. It is dependent upon him undergoing and recovering from surgery to his left shoulder (to which I will return, shortly) and being placed upon a waiting list under the Medicare scheme.
Mr Strbac has given the Tribunal two documents from Fairfield Hospital in respect of public waiting lists for elective surgery, one dated 18 February 2016[18] (purportedly in respect of his left shoulder condition) and the other dated 10 May 2016 (purportedly in respect of a right knee condition).[19] The waiting time in each case is said to be approximately 12 months.
[18] Filed by the Applicant on 29 February 2016.
[19] Filed by the Applicant on 16 June 2016.
There is no evidence before me that Mr Strbac has been placed on a public waiting list for elective surgery to his lumbar spine, although that is intended. On Dr Kafiris’ report, this might be expected to occur once he has undergone and recovered from left shoulder surgery.
The question arising from all this is whether Mr Strbac’s lumbar spine impairment results from a ‘permanent’ medical condition that was fully treated and fully stabilised during the qualification period.
Considering the treatment Mr Strbac obtained for this condition prior to the qualification period and the medical recommendation for surgical treatment[20] at some point in the future, it is difficult to conclude that this condition was fully treated or fully stabilised at that time.
[20] See T16, for example.
To the extent that Mr Strbac alleges that he cannot afford the cost of consulting a specialist spinal surgeon, as appears in the report of Dr Friend, a consulting psychiatrist,[21] it appears that he has subsequently consulted Dr Rosenberg. Dr Kafiris anticipates that surgery will be available to him, subject to a public hospital waiting list for elective surgery. The issue for Mr Strbac appears to be one of time rather than one of money – he requires time in which to obtain treatment for other conditions that are scheduled for treatment ahead of his spinal condition, and he requires time to exhaust the waiting periods he faces for each of these treatments. This all may amount to a period of years before he obtains treatment for his spinal condition.
[21] Filed by the Applicant on 21 March 2016, report by Dr Friend, 1 July 2015, page 1.
This weighs in favour of finding that this condition was fully treated and fully stabilised during the qualification period, as the Secretary concedes. Dr Kafiris estimates that treatment for this condition may not be available to Mr Strbac until 2018 (2 years after his report dated 4 March 2016).
It appears, however, that Dr Lam’s recommendations for treatment of the chronic pain resulting from Mr Strbac’s spinal condition have not been undertaken. I understand that Mr Strbac experienced side-effects of a sudden change in medication prescribed by Dr Lam, from sertraline (an anti-depressant medication) to duloxetine (an anti-depressant medication used to treat chronic pain), that caused him to cease the treatment. On 1 July 2015, Dr Friend recommended “a cautious retrial of duloxetine to determine whether this has some positive effect as regards his pain”.[22] The subsequent report of Dr Kafiris on 4 March 2016, setting out Mr Strbac’s medications, makes no reference to duloxetine.
[22] Report by Dr Friend, 1 July 2015, page 3.
Furthermore, Dr Lam’s treatment recommendation was not confined to medication, but extended to more than 100 hours of Integrated Multidisciplinary Work Related Activity Treatment, entitled REGAIN.[23] The doctor reported that “it is pain related distress that leads to pain related disability, not the pain itself”, and it was for this reason the doctor recommended treatment that was directed to developing a “biopsychosocial model” to assist Mr Strbac manage his persistent pain. It is not presently established that treatment of this kind was undertaken by Mr Strbac. No explanation has been given for this. This weighs against finding that his lumbar spine condition was fully treated and fully stabilised.
[23] T21 folios 139-140.
I am mindful that the previous Tribunal decided at [15] that Mr Strbac’s lumbar spine condition was permanent.[24] Dr Lam’s report predates that decision. While I am not presently bound by the previous decision of the Tribunal, it is desirable for there to be consistency in administrative decisions.
[24] T36 folio 193.
As will appear, however, even finding that Mr Strbac’s lumbar spine condition is permanent does not assist his case.
Assessing his lumbar spine impairment under Table 4, the present evidence does not establish that there was a severe functional impact on activities involving spinal function during the qualification period. Mr Strbac has provided evidence that 28 May 2014, his driver’s licence was suspended on medical grounds. This does not establish, however, that he is unable to sit in or drive a car for at least 30 minutes. The medical reasons for the suspension are not set out in the letter he has filed.
In his medical report for Mr Strbac’s DSP claim, Dr Kafiris reported that Mr Strbac’s lumbar spine condition had the following impacts on his ability to function –
“Cognitive interference. High pain. Mobility difficult. Personal care able but marked decrease in activities of daily living. Nil social activity. Poor endurance. Can sit. Unable to lift heavy items. Does not assist with housework.”[25]
[25] T40 folio 235.
This may be consistent with a moderate functional impact when the specific rating factors at the mild, moderate, severe and extreme levels in Table 4 are considered. This would equate, maximally, to a rating of 10 points.
Right shoulder
When Mr Strbac lodged his DSP claim, and during the qualification period, he was awaiting surgical treatment of his right shoulder condition. This has now occurred and post-surgical progress has been reported by Dr Davé.[26]
[26] Reports by Dr Davé dated 28 October 2015 and 9 February 2016.
That being so, I do not think that Mr Strbac’s right shoulder condition can be taken to be fully treated and fully stabilised, and permanent, during the qualification period, before the surgical treatment took place on 16 October 2015..
For this reason, no rating can be assigned for resulting impairment of right shoulder functions under the Impairment Tables.
Cognitive and psychological function
Major depressive disorder appears to have been diagnosed in 2011.[27] I understand that in 2011, Mr Strbac consulted Dr Sokolovic, a psychiatrist, and Helena Cuk, a psychologist. There are references in the materials to him consulting Dr Sokolovic again, in 2013 and 2014,[28] and to him commencing fortnightly psychological treatment with Maria Haque, a registered psychologist, in or about June 2015. There is no direct evidence from Dr Sokolovic, Ms Cuk or Ms Haque in the materials before the Tribunal.
[27] T10 folio 121 refers.
[28] T36 folio 197.
Dr Kafiris reported that Mr Strbac has depression with agitation, secondary to his spine condition. On 1 July 2015, Dr Friend reported a similar conclusion and said –
“The definitive treatment would be whatever can be done to relieve or abolish his pain…
…
Antidepressant or mood stabilising medication is unlikely to make much if any improvement in his mood. However, I would recommend a cautious retrial of duloxetine to determine whther this has has some positive benefit as regards his pain, at least in the short term…
The long-term outcome will depend upon in [sic] the outcome of any surgery or any pain reduction strategies.”
As I have said, Mr Strbac did not proceed with treatment recommended by Dr Lam in 2012.
Considering all, of this, I am not persuaded that Mr Strbac’s depressive disorder can be taken to be fully treated and fully stabilised during the qualification period. I am reasonably satisfied that it was not.
For this reason, no rating can be assigned to his cognitive or psychological impairment under the Impairment Tables.
Left shoulder
Dr Kafiris’ evidence in respect of Mr Strbac’s left shoulder condition suggests that during the qualification period it was not fully diagnosed.
Even if it was, it is quite clear that it had not been fully treated or fully stabilised – the present materials establish that Mr Strbac is on a public hospital waiting list for elective surgery to treat his left shoulder condition.
In these circumstances, it would not be appropriate to determine that his left shoulder condition is permanent, when it is not yet treated or stabilised.
Furthermore, the present materials are not sufficient to determine the extent, if any, of impairment of Mr Strbac’s left shoulder function during the qualification period.
For these reasons, no rating can be assigned for his left shoulder impairment under the Impairment Tables.
Right knee
Evidence of Mr Strbac’s right knee condition is very scant.
Dr Kafiris referred to it but briefly in his medical report for Mr Strbac’s DSP claim. The reference is to right knee pain on walking. This does not constitute a diagnosis of any kind.
It appears that a radiological scan of Mr Strbac’s right knee was undertaken on 4 October 2012, with the following reported result –
“Evidence of a previous ACL and MCL injury with scar remodelling.
Non-healed meniscocapsular junction tear at the medial joint line.
Inner margin, incomplete radial tear of the posterior horn of the lateral meniscus with adjacent chondral softening.
Thickened scared medial plica with low grade chondromalacia at the medial retropatellar surface.
Non-specific superficial infrapatellar and deep infrapatellar bursal inflammation.”[29]
[29] T20 folio 135.
The present evidence does not establish what treatment, if any, was recommended for these pathological changes, or that any treatment was undertaken.
It appears that Mr Strbac is presently on a public hospital waiting list for elective surgery on his right knee.
That being so, I am unable to find that his right knee condition was fully treated or fully stabilised during the qualification period. I am reasonably satisfied that it was not.
For this reason, no impairment rating can be made in respect of functional impairment of Mr Strbac’s right knee under the Impairment Tables.
Overall impairment rating
It follows that, at the highest, even if I accept that Mr Strbac’s back condition was ‘permanent’ during the qualification period, such that his lumbar spine impairment can be assigned a rating under Table 4, he can achieve a rating of 10 impairment points.
This does not meet the minimum 20 point threshold required to satisfy s 94(1)(b) of the Act.
For this reason, Mr Strbac does not qualify for DSP during the qualification period and his claim must fail and the decision under review must be affirmed.
Conclusion
Pursuant to his claim on 12 May 2015, Mr Strbac does not meet the minimum requirements for grant of DSP. His various impairments do not attract a rating higher than 10 points during the qualification period. For this reason, alone, his claim cannot succeed.
Furthermore, even though it is not necessary to proceed further to assess whether he has a continuing inability to work under s 94(1)(c) of the Act, it is appropriate to observe that the present evidence is that, applying the Social Security (Active Participation for Disability Support Pension) Determination 2014, Mr Strbac had not completed the minimum requirement for active participation in a program of support. This, too, would stand contrary to grant of his claim for DSP.
For these reasons, his claim for DSP cannot be granted.
There is one further matter arising from a letter Mr Strbac gave the Tribunal on 20 June 2016. In this letter he appears to be requesting a review of his eligibility for DSP to “1 June from when I was discharged from Rehabilitation”. If, by this request, Mr Strbac is hoping that the Tribunal will review his eligibility for DSP until 1 June 2016, I must inform him that this cannot occur.
The Tribunal does not exercise power at large. The jurisdiction of the Tribunal is conferred by legislation. Under the Social Security (Administration) Act 1999, the Tribunal has jurisdiction to review a decision that has been decided, on first tier review, the Social Services and Child Support Division and previously, by an Authorised Review Officer in respect of a determination made at the primary level.
It is not open to the Tribunal to extend the qualification period in respect of a claim for DSP.
This notwithstanding, the present evidence does not support the result for which Mr Strbac contends.
DECISION
The decision under review is affirmed.
I certify that the preceding 68 (sixty -eight) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member ...............................[sgd]........................................
Associate
Dated 13 July 2016
Date of hearing 20 June 2016 (on the papers) Applicant Self represented Solicitors for the Respondent Department of Human Services
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