Vergios and Secretary, Department of Social Services (Social services second review)
[2016] AATA 16
•20 January 2016
Vergios and Secretary, Department of Social Services (Social services second review) [2016] AATA 16 (20 January 2016)
Division
GENERAL DIVISION
File Number
2014/4679
Re
Michael Vergios
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Dr I Alexander, Member
Date 20 January 2016 Place Sydney The Tribunal affirms the decision under review.
............................[sgd]............................................
Dr I Alexander, Member
CATCHWORDS
SOCIAL SECURITY – disability support pension –– whether conditions fully diagnosed, treated and stabilised – impairment ratings – continuing inability to work – whether additional medical evidence supports “severe impairment” during claim period
LEGISLATION
Social Security Act 1991 (Cth) s 94
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 2011
REASONS FOR DECISION
Dr I Alexander, Member
20 January 2016
Mr Vergios is currently 55 years old and has been receiving Disability Support Pension (DSP) intermittently since 1999.
In March 2009, whilst receiving DSP, he was injured in a workplace accident.
On 18 July 2012, Mr Vergios settled a compensation claim for $123,000.00 and consequently was subject to a compensation preclusion period from 28 June 2012 to 27 November 2013. His DSP was cancelled on 14 October 2013 because he was not entitled to pension payments until after 27 November 2013.
On 9 December 2013, Mr Vergios lodged a new claim for DSP on the basis that he suffered several medical conditions which were having an impact on his ability to function.
Mr Vergios’ claim was rejected by Centrelink, both initially and on internal review, on the basis that he did not satisfy the requirements of s 94 of the Social Security Act 1991 (Cth) (“the Act”). In particular he did not satisfy s 94(1)(c) of the Act, which requires that the person has a continuing inability to work. In particular, he did not have a severe impairment under a single Impairment Table and had not actively participated in a program of support (POS).
In a decision dated 15 August 2014, the Social Security Appeals Tribunal (“SSAT”) found that Mr Vergios’ total impairment rating was 15 points and therefore he did not satisfy s 94(1)(b) of the Act.
In these proceedings Mr Vergios seeks review of the SSAT decision.
Mr Vergios attended the hearing by telephone and was self-represented.
I note that, following a review of additional medical evidence, Mr Vergios was granted DSP on 26 March 2015 on the basis that his spinal function attracted an impairment rating of 20 points under Impairment Table 4 and that he had a continuing inability to work.
ISSUES
In order to qualify for DSP, Mr Vergios must satisfy the requirements of s 94 of the Act as at the date of the claim or within 13 weeks of lodging the claim, in accordance with the requirements of the Social Security (Administration) Act 1999, that is, between 9 December 2013 and 10 March 2014 (the claim period).
Section 94(1) of the Act provides that 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)the person has a continuing inability to work as defined by the Act.
The Respondent concedes and the Tribunal accepts that Mr Vergios suffers medical conditions that cause impairment and he therefore satisfied s 94(1)(a) of the Act at the time of his claim for DSP.
The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Impairment Determination”) requires that an impairment rating can only be assigned to an impairment if the condition causing that impairment is “permanent” (paragraph 6(3)(a)).
For the purposes of paragraph 6(3)(a), a condition is permanent if it is:
·fully diagnosed by an appropriately qualified medical practitioner (paragraph 6(4)(a)); and
·fully treated (paragraph 6(4)(b)); and
·fully stabilised (paragraph 6(4)(c)); and
·the condition is more likely than not to persist for more than two years (paragraph 6(4)(d)).
The Introduction to each relevant Table requires that “self-report of symptoms alone is insufficient” and “there must be corroborating evidence of the person’s impairment”.
For present purposes the relevant medical conditions to be considered by the Tribunal are conditions of spinal function, upper limb function and lower limb function.
The Respondent concedes and the Tribunal accepts that Mr Vergios suffers a permanent shoulder condition which has a mild functional impact on activities using hands and arms so that a rating of five points under Impairment Table 2 can be applied.
The Respondent concedes and the Tribunal accepts that Mr Vergios suffers a permanent ankle condition which has a mild functional impact on activities using lower limbs so that a rating of five points under Impairment Table 3 can be applied.
The Respondent accepts that Mr Vergios suffers a permanent cervical spine condition but contends that the condition has a moderate functional impact on activities involving spinal function so that a rating of 10 points under Impairment Table 5 can be applied.
It follows that, during the claim period, Mr Vergios had a total impairment of 20 points under the Impairment Tables so the he satisfied s 94(1)(b) of the Act.
The Respondent contends that, during the claim period, Mr Vergios could not satisfy section 94(1)(c) of the Act as he did not have a ‘continuing inability to work’ because he did not have a severe impairment as defined in the s 94(3B) of the Act and had not actively participated in a POS as required by s 94(2)(aa) of the Act.
It is agreed that prior to the date of claim Mr Vergios had not actively participated in a POS.
However, Mr Vergios contends that during the claim period he did suffer a severe functional impact on activities of spinal function and that he did have a continuing inability to work.
Accordingly, the definitive issue for the Tribunal to consider is whether during the claim period, Mr Vergios had a “severe impairment” as defined in s 94(3B) of the Act, that is 20 points or more under Impairment Table 4 and, if so, whether he had a continuing inability to work.
SPINE CONDITION
Mr Vergios told the Tribunal that his spine condition has essentially been unchanged since 2010 but agreed that over time his symptoms, particularly pain, have increased and his functional capacity has deteriorated. However, he claimed that there had been no significant change between the date of claim and March 2015 when he was granted DSP.
An x-ray of the lumbo-sacral spine performed on 18 May 2011 is reported as showing “minor lumbar scoliosis …evidence of degenerative disc disease with narrowing of L3/4, L4/5 but in particular L5/S1 disc. Facet joint arthropathy at the lumbosacral junction is visible”.
An x-ray of the sacrum and coccyx performed on the same day are reported as showing “some deformity of the distal sacrum, possibly related from previous injury. No acute fracture identified…”.
In a letter to Dr C Costa dated 16 December 2010, Dr Jonker, neurosurgeon, notes inter alia the following:
“The MRI shows a significant disc osteophyte bar at C5/6 with compression of the anterior spinal cord to a mild extent. There is significant high-grade narrowing of the C5/6 foraminae bilaterally with compression of the C6 nerves. At C6/7 there is additional foraminal narrowing worse on the right than left…
Mr Vergios has evidence of bilateral C6 radiculopathy from foraminal stenosis at this level. The cord compression is mild but concerning at his age group though he has no evidence of myelopathy clinically….”
In a letter dated 14 January 2012, Mr Stamateris, physiotherapist, notes that Mr Vergios was referred for “chronic neck & shoulder pain with chronic low back pain also” and that “[h]e reported neck and back injury & loss of range – 20 % SF & 40% Rot.. lumbar 20% ext only…”.
I note that it is not clear from the letter that the claimed loss of range of movement was actually observed by Mr Stamateris.
In a Centrelink Medical Report dated 20 August 2012, Dr Costa, public health physician, notes several medical conditions causing significant functional impact including “chronic bilateral shoulder pain…chronic neck injury & C5/6 canal stenosis compressing C6 nerve roots bilaterally…chronic post trauma (R) ankle & post surgical adjustment disorder,(L) knee.”
Dr Costa notes that treatment is “now palliative and supportive… is more likely worsen (sic) than improve. Reluctant for (R) shoulder Sy or neck surgery”. He describes the impact on ability to function as “difficulty with manual/physical work, lacks endurance due to physical symptoms, chronic pain & poor night sleep”.
In a Job Capacity Assessment (JCA) report submitted on 27 September 2012 the assessor notes a moderate impact on activities of cervical spinal function and recommends a rating of 10 points under Impairment Table 4.
A Centrelink Medical Report provided by Dr Costa, dated 9 December 2013, is essentially identical to his report of August 2012 and provides no relevant new information.
In a JCA report submitted on 30 January 2014, the assessor notes a moderate impact on activities of cervical spinal function and recommends a rating of 10 points under Impairment Table 4.
In a Centrelink Medical Certificate dated 18 March 2014, Dr Costa notes a medical condition of “C5/6 canal stenosis compressing C6 nerve root and chronic low back pain” with symptoms of “stiff and sore neck and chronic headache and vertigo”.
A Centrelink Medical Report provided by Dr Costa, dated 30 April 2014, is essentially identical to both his earlier reports and provides no relevant new information.
In a Centrelink Medical Certificate dated 30 April 2014, Dr Costa notes a medical condition of “C5/6 canal stenosis compressing C6 nerve root and chronic low back pain – vertebral compression fracture + chronic sacrococcygitis” with symptoms of “stiff and sore neck and chronic headache and vertigo - nausea and vomiting/cervical migraine, neck limited ROM, chronic back pain”.
I note at this point that in none of Dr Costa’s three Centrelink Medical reports, which appear to be the same report but with different dates, does he mention either low back pain or a lumbar spine condition. In the two medical certificates, both provided after the end of the claim period, Dr Costa notes “chronic low back pain” but provides no specific details as to the severity, treatment or functional impact.
In the report of a JCA performed on 26 March 2015, the assessor recommended a rating of 10 points under Impairment Table 4 with respect to Mr Vergios’ cervical spinal function.
The assessor also considered Mr Vergios’ “intervertebral disc disorder” as reported in the spine x-rays performed on 18 May 2011 and noted “a significant exacerbation of his back pain in November 2014” [emphasis added] and consequently was referred to an orthopaedic surgeon, Associate Professor Peter Papantoniou, whom he saw in February 2015.
The assessor states that in a phone call to Dr Costa on 30 March 2015, Dr Costa confirmed that Mr Vergios had experienced a deterioration in his back condition over the last year since his application for DSP [emphasis added].
The assessor notes that the JCA report of 8 January 2014 did “not assess his back injury as it was not listed in the medical report provided for the assessment” and was rated together with the neck injury to avoid a double rating with an allocated rating of zero points under Table 4.
In an incomplete copy of a letter dated 17 December 2014, Professor Papantoniou notes, inter alia, that Mr Vergios “continues to have quite severe lower back pain which he feels has been getting worse over the last few years…his biggest problem at present is his lower back pain”.
In a subsequent letter dated 12 February 2015, Professor Papantoniou notes that Mr Vergios continues to have lower back pain and expresses the following opinion:
“I feel Mr Vergios has severe lumbar degeneration, which is worst at L5/S1 and much less severe at L4/5 going upward. His biggest problem I feel is at L5/S1 probably followed by L4/5. I note he cannot sit for more than 5 minutes and certainly the image pathology could confirm this…..Mr Vergios has asked me to try and give an assessment based on the social security tables for assessment and I note from the 2011 Tables Mr Vergios appears to qualify for a 20 point disability based on his lumbar spine.”
In a supplementary report of the JCA performed on 26 March 2013, which was also reviewed by the Business Manager, Assessment Services, East and South NSW, the assessor stated that:
“The JCA interview on 26/03/2015 considered Mr Vergios’ permanent medical conditions at 09/12/2013. Mr Vergios’ neck and back pain were assessed to be fully diagnosed, treated and stabilised and assigned an impairment rating of 10 points under Table 4”.
In response to a hypothetical question as to whether Mr Vergios would be qualified for DSP if he lodged a new claim now, the assessor stated the following:
“Mr Vergios’ back and neck injuries would be likely to be considered fully diagnosed, treated and stabilised as there was no further treatment planned. The letter from Associate Professor Papantoniou (12/02/2015) and the letter from Dr Con Costa (26/02/2015) both indicated that Mr Vergios was unable to sit for 10 minutes due to his back injury. This was consistent with his presentation in the assessment. This would be consistent with an impairment rating of 20 points under Table 4, as he is unable to remain seated for at least 10 minutes”.
The assessor goes on to state, inter alia:
“If Mr Vergios were to lodge a new claim for DSP, his current work capacity would be likely to be assessed as 0-7 hours per week as he was unable to sit for more than 10 minutes and had difficulty standing for more than 10-15 minutes… he would not currently be required to meet POS requirements if assessed to be “severely impaired”… this assessment considered additional medical evidence…. this additional information confirmed that Mr Vergios’ back injury had deteriorated at the end of 2014…this new information would provide evidence that Mr Vergios could be assigned 20 points for his back and neck condition if he applied for DSP today, but does not impact on the impairment rating assigned in respect of his DSP claim on 09/12/ 2013 plus 13 weeks”. [emphasis added]
CONSIDERATION
As a result of the reassessment of Mr Vergios’ lumbar spine condition on 26 March 2015, he was found to be suffering a severe functional impact on activities involving spinal function and had a continuing inability to work so that he qualified for DSP.
This assessment appears to have been based on the presumption that his lumbar spine condition had deteriorated during 2014 and additional, more persuasive, medical evidence that was obtained almost 12 months after the end of the claim period.
The question for the Tribunal is whether the additional medical evidence could support Mr Vergios’ contention that he had a “severe impairment” during the claim period.
The Centrelink medical reports provided by Dr Costa, which can best be described as incomplete, are of no assistance. The fact that there is no reference to the lumbar spine condition as a condition with significant functional impact does not support Mr Vergios’ contention.
Furthermore, I have no reason to question the JCA reports which indicated that both Mr Vergios and Dr Costa stated that the lumbar spine condition had deteriorated during 2014.
In my view, there is little evidence before the Tribunal to support a conclusion that, during the claim period, Mr Vergios’ lumber spine condition had any functional impact on activities involving spinal function and no convincing evidence to support a conclusion that there was a severe functional impact.
Accordingly, I am satisfied that, during the claim period, Mr Vergios did not have a rating of 20 points under Impairment Table 4.
DECISION
For reasons set out above I am satisfied that, during the claim period Mr Vergios did not have a rating of 20 points under a single Impairment Table and therefore, as he had not actively participated in a POS he did not satisfy s 94(1)(c) of the Act and did not qualify for DSP.
The decision under review is affirmed.
I certify that the preceding 57 (fifty-seven) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member .............................[sgd]...........................................
Associate
Dated 20 January 2016
Date(s) of hearing 19 November 2015 Applicant In person Solicitors for the Respondent Department of Human Services
Key Legal Topics
Areas of Law
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Social Security Law
Legal Concepts
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Social Security Disability Support Pension
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Impairment Ratings
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Continuing Inability to Work
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