Velitchko and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2010] AATA 1000

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 1000

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/4288

GENERAL ADMINISTRATIVE   DIVISION		)
Re		Vassili Velitchko

Applicant

And Secretary, Dept of Families, Housing, Community Services and Indigenous Affairs

Respondent

DECISION

Tribunal Ms N Bell, Senior Member  

Date13 December 2010   

PlaceSydney

Decision The decision under review is affirmed.

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

Ms N Bell, Senior Member

CATCHWORDS – Social Security - disability support pension – continuing inability to work – back impairment – psychiatric impairment – “diagnosed, treated and stabilised”

Social Security (Administration) Act 1999

Social Security Act 1991

REASONS FOR DECISION

Ms N Bell, Senior Member            

1.      

Mr Vassili Valitchko first contacted Centrelink on 14 April 2008 and later lodged a claim for disability support pension on 21 April 2008, claiming back pain.  The claim was supported by a report by Dr Lewis, Mr Velitchko’s general practitioner. Dr Lewis described “back disorder – disc bulge” as Mr Velitchko’s only condition.

Mr Velitchko now appeals the Secretary’s refusal of his claim to this Tribunal.

2.      Mr Velitchko has had three assessments by job capacity assessors. – two prior to his appeal to the Social Security Appeals Tribunal and another after he lodged his appeal to this Tribunal. The results of these assessments have been different, but the Secretary rejected, and continues to reject Mr Velitchko’s claim.

3.      Following a request by the Tribunal, the Secretary arranged for Mr Velitchko to be examined by a psychiatrist and a report provided so that a possible psychiatric impairment, mentioned by Mr Velitchko and his general practitioner, may be assessed under the Impairment Tables in Schedule 1B to the Social Security
Act 1991.

4.      In summary, the eligibility requirements for disability support pension, set out in section 94 of the Act, are that a person must have:

·a physical, psychiatric or intellectual impairment;

·a rating of 20 points or more under the Impairment Tables; and

·a continuing inability to work, as defined in the Act

5.      There is no dispute that Mr Velitchko suffers from a physical and psychiatric impairment. The issues for the Tribunal to consider are whether he has an impairment rating of 20 points or more and, if so, whether he has a continuing inability to work.

Does Mr Velitchko have an impairment of 20 points or more under the Impairment Tables?

6. I note that schedule 2 subclause 4(1) of the Social Security (Administration) Act 1999 provides, in effect, that the relevant period for which Mr Valitchko’s impairment and his ability to work are to be assessed is the period of 13 weeks following his intial contact with Centrelink in respect of his claim on 14 April 2008. It is his condition during that time that is relevant to this application.

7.      The Impairment Tables provide that in order for an impairment to be assessed it must be permanent, that is, it must be diagnosed, treated and stabilised.

8.      At the time of his claim and for the period of 13 weeks following, the only medical opinion available was that of Mr Velitchko’s general practitioner, Dr Lewis. Dr Lewis’ report gives little detail. A further report in June 2008 notes additional conditions, most of which he considered to be well managed, but scant detail.

9.      

Mr Velitchko said in evidence that he had been referred by Dr Lewis to a

Dr Laughley, orthopaedic surgeon, in approximately March 2008. He said that after his consultation he asked Dr Laughley for a report and the doctor refused. He ceased to see him further and was then referred to Dr Stamford, orthopaedic surgeon, whom he first saw in about October 2008 and then again in

December 2008. Dr Stamford provided a brief report to Dr Lewis dated

9 December 2008 in which he reported Mr Velitchko having a history of chronic back pain; investigations reveal “little of note”; has received appropriate treatment in the form of analgesia and physiotherapy supervised exercise; his condition has stabilised and there is no expectation of improvement in the future; and his back motion is limited to approximately half of normal.

10.     

Mr Velichko was examined by Dr Dwight Dowda, occupational physician, on

9 January 2009 and he provided a report dated 15 January 2009. Dr Dowda took a history from Mr Velichko of working in a range of jobs, most notably in construction as a labourer, until 2007. He also took a history of Mr Velitchko having had problems with his back for 10 to 15 years and that in the recent past he had developed more severe pain in his back.

11.     Dr Dowda said he observed relatively supple movements by Mr Velitchko when undressing and undoing his shoes, but that he walked with a changeable limp, using a walking stick to support his left side. I note that no walking stick was in evidence at the Tribunal hearing.

12.     Dr Dowda was of the opinion that during the relevant period of 13 weeks following Mr Velitchko’s claim, his back condition was not fully diagnosed, treated and stabilised, although he did consider it to be permanent. Dr Dowda noted the report of Dr Stamford, but considered it did not assist with the question of whether the back condition had been fully treated at the time of the claim. He said that the imaging studies provided to him by Mr Velitchko do not suggest anything structurally significant in Mr Velitchko’s, back. Dr Dowda diagnosed degenerative changes in the lumbar spine with some disc protrusion towards the left side and an annular tear, but no nerve root involvement.

13.     

Dr Dowda also found that Mr Velitchko’s symptoms, including a band like pain around the abdomen, did not correlate with accepted knowledge of anatomy and pathology for the lumbar spine. He suggested the possibility of somatisation. He found that on the basis of measured active movements of the lumbar spine,

Mr Velitchko has a loss of ¼ range of movement as well as back pain or referred pain with many physical activities, with standing for 30 minutes and with sitting or driving for about 60 minutes and on this basis attracts an impairment rating of

10 points under Table 5 of the Impairment Tables.

14.Table 5 is as follows: 

TABLE 5.       SPINAL FUNCTION

Determination of spinal impairments must be based on a demonstrable loss of function.

TABLE 5.1     Cervical spine

Rating Criteria

NIL                  Normal or nearly normal range of movement.

FIVE                Loss of quarter of normal range of movement.

TEN                 Loss of half of normal range of movement and frequent/constant neck pain or loss of three quarters of normal range of movement with infrequent neck pain.

TWENTY        Loss of three‑quarters of normal range of movement and constant neck pain.

THIRTY          Loss of almost all movement, or complete ankylosis in position of function.

FORTY            Ankylosis in an unfavourable position, or unstable joint.

TABLE 5.2     Thoraco--lumbar‑sacral spine

As spinal mobility is a composite movement, this Table measures overall mobility of the trunk including hip movement and is not intended to measure mobility of individual spinal segments.

Rating           Criteria

NIL                  Normal or nearly normal range of movement.

FIVE               Loss of one‑quarter of normal range of movement.

TEN                Loss of one‑quarter of normal range of movement as well as back pain or referred pain:

with many physical activities and

with standing for about 30 minutes and

with sitting or driving for about 60 minutes.

or

Loss of half of normal range of movement.

TWENTY        Loss of half of normal range of movement as well as back pain or referred pain:

with most physical activities and

with standing for about 15 minutes and

with sitting or driving for about 30 minutes.

or

Loss of three‑quarters of normal range of movement.

FORTY            Ankylosis in an unfavourable position, or unstable joint.

15.     I am mindful that he had suffered back pain for many years but that he did not suffer severe pain until 2007 and had continued to do labouring work until then. I am also mindful of the suggestion by both Dr Dowda and Dr Lovric that Mr Velitchko’s back pain may be linked to his psychological condition. While the report of Dr Stamford is firm as to the stabilisation of Mr Velitchko’s, back condition, it is very brief and does not set out the basis on which he reaches his conclusions. I also note that he did not first see Mr Velitchko until October 2008, some six months after Mr Velitchko’s claim, and that his report was not written until a number of investigations had been obtained – all of which he considered to be of little note. For these reasons, I am not satisfied that Mr Velitchko’s back condition was fully diagnosed, treated and stabilised during the relevant period as is required by the legislation.

16.     Even if Mr Velitchko’s, back condition were to be considered permanent, within the meaning of the Introduction to the Impairment Tables, I am more persuaded by the assessment of Dr Dowda that Mr Velitchko has a ¼ loss of range of movement and thus attracts an impairment rating of 10 points under Table 5, rather than the 20 points that would flow from Dr Stanford’s finding of a loss of ½ range of movement. Dr Dowda provided the full details of his clinical examination and measurement of range of movement and his observations of Mr Velitchko, while Dr Stanford simply stated his opinion and did not provide any detail at all.

17.     As to Mr Velitchko’s, psychiatric condition, first advised by Dr Lewis in a further medical report of 4 June 2008, Mr Velitchko was examined and reported on by Dr Lovric, psychiatrist who diagnosed adjustment disorder with depressed and irritable mood. She considered the disorder had developed with his pain and the failure of his business and his marriage. She also said she is unable to be certain whether Mr Velitchko’s, mood is solely a symptom of his psychiatric disorder or whether it also reflects his underlying personality style and is therefore a lifelong trait.

18.     

She considered that the question of whether Mr Velitchko’s, condition will persist will depend on his ability to work through his current financial and marital stresses. She noted that Mr Velitchko had been trialled on two different

anti-depressants. She also noted that Mr Velitchko had not had any anger management counselling and an alternative medication. She suggested that his back pain may be a somatic manifestation of his psychological distress. She noted that

Mr Velitchko had not seen a psychiatrist until December 2008 and had only had antidepressant medication which he appeared to have been taking at an excessive dose. Dr Lovric considered that Mr Velitchko had not been fully diagnosed, treated and stabilised during the relevant period.

19.     On the basis of Dr Lovric’s report, I do not consider that Mr Velitchko’s, psychiatric condition can be considered to have been diagnosed, treated and stabilised during the relevant period. Therefore it cannot be rated under the Impairment Tables.

20.     It follows that Mr Velitchko, during the relevant period, did not have an impairment rating of 20 points or more. It is therefore unnecessary to consider whether he had a continuing inability to work.

Decision

21.The Tribunal affirms the decision under review.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member

Signed: ..................[sgd]............................................................
  Associate

Dates of Hearing  5 March 2009 & 4 November 2010
Date of Decision  13 December 2010
Representative for the Applicant     Self represented   
Solicitor for the Respondent            Stefanie Memmott, Centrelink Legal Services