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

[2011] AATA 827

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 827

ADMINISTRATIVE APPEALS TRIBUNAL     )

)          No 2011/2432

GENERAL   ADMINISTRATIVE  DIVISION		)
Re		MEKONEN YITBAREK

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Dr Kerry Breen, Member

Date22 November 2011

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

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

Member

SOCIAL SECURITY ‑ disability support pension – start date – complex medical diagnoses- role of job capacity assessors.  

Social Security Act 1991 s 1061ZA

Social Security (Administration) Act 1999

REASONS FOR DECISION

22 November 2011 Dr Kerry Breen, Member

1.Mr Mekonen Yitbarek was born in Eritrea in 1966. He was displaced from his homeland as a teenager.  After making his way to a refugee camp in Sudan, he was accepted as a refugee by Australia, arriving here in 1990.  Mr Yitbarek suffers from a number of medical conditions, including damage from a bullet wound to his right shoulder with a fall on to his left elbow experienced when he was fifteen and for which no immediate medical attention was available. 

2.Mr Yitbarek has lodged claims with Centrelink for the disability support pension (DSP) on three earlier occasions (26 September 2005, 15 February 2008 and 16 December 2008), which Centrelink did not accept.  These decisions were not the subject of appeal. Centrelink is the service provider for the Department of Families, Housing, Community Services and Indigenous Affairs.

3.The Tribunal decided that the issues for determination on the review of the decision could be adequately determined in the absence of the parties; and the parties consented to the review being determined without a hearing. Therefore, pursuant to section 34J of the Administrative Appeals Tribunal Act 1975 (the Act), the Tribunal reviewed the decision by considering the documents lodged with the Tribunal without holding a hearing.

4.On 10 August 2007 Mr Yitbarek wrote to the Manager, Centrelink Customer Relations. He stated that he had prepared the letter with the assistance of the Fitzroy Legal Service. The letter outlined his life story, his employment history and his medical issues. In the second paragraph, he stated

I do however wish to lodge a formal complaint against Centrelink Fitzroy, which has continued to deny my disability pensions to which I believe I am rightfully entitled to, and which has forced me back into the workforce, which I believe, has exacerbated my condition and contrary to my doctor’s instructions.

He also wrote (on page three) Because I believe that I am severely and permanently incapacitated and will be unable to continue to work at all in the near future, I wish to apply for a Disability Support Pension.

5.Mr Yitbarek received a letter dated 28 September 2007 from the Centrelink Manager, Yarra Customer Service Centre. The letter was apparently a reply to his letter of 10 August 2007 although it began with Thank you for your letter dated 7 September. The manager expressed regret that you experienced difficulties in the past when visiting a Centrelink Customer Service Centre.  In the third and final paragraph of the letter, the manager advised …With regards to your considering to apply for Sickness Allowance and/or Disability Pension. To test your entitlement to a Centrelink payment, you can visit your local Centrelink Customer Service Centre or contact the Centrelink Call Centre on 131021 to make an appointment.  Centrelink does not appear to have contemplated the possibility that Mr Yitbarek was seeking a review of an earlier decision of Centrelink in his letter of 10 August 2007

6.Mr Yitbarek made further applications for DSP on 15 February 2008 and 16 December 2008, which were rejected. He lodged another application on 3 November 2010 which was successful. He was informed by letter dated 26 November 2010 that he had been granted the DSP from 3 November 2010.

7.On 4 March 2011 Mr Yitbarek contacted Centrelink to ask about the start date for his DSP. He had recently received a Pension Concession Card (PCC) for which the start date was 15 February 2008 and he sought arrears of the DSP back to that date.

8.On 6 May 2011 an Authorised Review Officer (ARO) of Centrelink affirmed the decision to start DSP from 3 November 2010. Mr Yitbarek then applied to the Social Security Appeals Tribunal (SSAT) for a review of that decision. The SSAT conducted a hearing on 30 May 2011 at which Mr Yitbarek appeared, assisted by an interpreter in the Tigrinya language. The issue before the SSAT was described as whether Mr Yitbarek can be paid disability support pension from a date earlier than 3 November.

9.In considering Mr Yitbarek’s appeal, the SSAT noted that a case worker had contacted Centrelink on behalf of Mr Yitbarek on 12 October 2010, as he was very unwell due to his mental illness, and that she was assisting him to claim DSP. The SSAT concluded this contact should have been acknowledged by Centrelink as an intention to claim  DSP and determined that Mr Yitbarek was entitled to be paid DSP:

from the first day of the period of 4 weeks ending immediately before 12 October 2010, once a letter has been issued acknowledging the contact made on his behalf on that date.

10.The SSAT hearing noted but did not address Mr Yitbarek’s request that his DSP payments be backdated to 15 February 2008. This was the start date of his PCC and was also the date of a previous unsuccessful DSP application. In the record of Mr Yitbarek’s contact with Centrelink dated 19 April 2011 (T5), the recording officer clearly states that it was the start date of the pension concession card that triggered the request for backdating of DSP payments.

11.Mr Yitbarek was provided with a written explanation of the 15 February 2008 start date via the second page of the decision of an ARO dated 6 May 2011(T7). In the second last paragraph of the decision, the ARO wrote:

Although the start date on your Pension Concession Card is 15 February 2008, this is not the date you are qualified for DSP from. This is the date that you first became qualified for a Pension Concession Card which includes the time you were on Newstart Allowance.

12.In paragraphs 23 and 24 of its decision, the SSAT canvassed the onset of Mr Yitbarek’s mental illness. It

... accepts that Mr Yitbarek has been medically incapacitated for work continuously because of his mental health condition since October 2009

and added

this has been the principal cause of the delay in his making a claim since his incapacity for work began.

13.On 21 June 2011 Mr Yitbarek lodged an application with this Tribunal for review of the decision of the SSAT. At a preliminary conference between the parties held on 9 September 2011, Mr Yitbarek agreed that his application for a review of the SSAT decision could be conducted on the papers. At the preliminary conference, Mr Yitbarek indicated that he was seeking back payments to the time of his DSP rejection in 2008. He acknowledged that he had not appealed the 2008 decision and explained that at the time he was in hospital for surgery.

14.Centrelink forwarded a copy of the respondent’s statement of facts and contentions to Mr Yitbarek with a covering letter dated 26 August 2011. That letter suggested that Mr Yitbarek seek a free initial consultation with Victoria Legal Aid.

15.In paragraph 12 of its statement of facts and contentions, the respondent noted:

On 4 March 2011 the applicant queried the start date of that pension. He recently received a pension concession card with a start date of 15 February 2008. He sought arrears of disability support pension from 15 February 2008.

16.The respondent’s statement makes it clear that Centrelink has accepted the conclusion of the SSAT and has issued a letter acknowledging the contact made on Mr Yitbarek’s behalf on 12 October 2010. The respondent submitted that the start date for DSP therefore was 13 September 2010, which is four weeks ending immediately before the day on which the claim was made.  

ISSUE

17.The issues to be determined are whether DSP can be paid prior to 3 November 2010 and whether Mr Yitbarek is entitled to back payments of the DSP to 15 February 2008.

MEDICAL EVIDENCE

18.The medical evidence before the Tribunal is not detailed. It consists of some documents created by the applicant or on his behalf, a series of brief medical certificates from Dr Allan Bond and Associates in Fitzroy, a series of Centrelink medical certificates from doctors at North Yarra Community Health and two reports of Job Capacity Assessors. The first Job Capacity Assessment (JCA) was conducted on 22 January 2009 by Phillip Brown and the second by David See on 27 October 2009.

19.     The most detailed accounts of Mr Yitbarek’s health issues are contained in:

Athe letter he wrote to Centrelink on 10 August 2007 (T1) and

Bthe reports of the two Job Capacity Assessors (summarised in paragraphs 26 - 35 below).

20.In his letter dated 10 August 2007, the applicant wrote that:

I was 15 years old when I was shot in the right shoulder ... treatment was impossible and my arm has never worked properly since.

The letter emphasised that each time he went back to work in the early 2000s he was forced to give up because of chronic pain in his left arm.

21.The certificates from Dr Allan Bond and Associates, dated 3 December 2007, 10 January 2008, 6 February 2008, 3 March 2008 and 4 April 2008 refer to diagnoses of thyroid disease, L elbow disease and L lateral epicondylitis. During February 2008 Dr Bond also completed a series of WorkCover capacity certificates in reference to painful L elbow, L lateral epicondylitis.

22.Dr C O’Neill of North Yarra Community Health certified on 21 October 2005 that Mr Yitbarek was suffering from goitre thyroid enlargement and was on the waiting list for surgery at St Vincent’s Hospital. He also certified old fracture L elbow with O/A.   The certificate stated that the latter caused pain and loss of mobility of L arm and that for this he was also awaiting further surgery at St Vs.

23.Dr Paul McGuire of North Yarra Community Health certified on 2 February 2009 that Mr Yitbarek was suffering from:

(1)subacromial bursitis and impingement (side not stated),

(2)neurological damage to left hand and

(3)thyroid cancer.  Dr McGuire added There are five diagnoses which impact on Mekonen’s capacity to work ... but the two additional diagnoses are not identified.

24.Dr Catherine Kearney of North Yarra Community Health certified on 14 May 2008 that Mr Yitbarek was suffering from:

(1)goitre,

(2)reduced function of left arm and

(3)memory loss.

25.Dr David Moses of St Vincent’s Hospital issued a medical certificate for a diagnosis of cervical radiculopathy on 17 July 2008.  The side of the lesion was not stated.

26.Job Capacity Assessor Phillip Brown, (whose professional discipline was given as other) saw Mr Yitbarek face-to-face on 22 January 2009 in relation to a new DSP claim made on 22 December 2008. Note that that this DSP claim is not the subject of this appeal.  It is only relevant to the current appeal by virtue of the fact that at a later JCA by David See the assessor identified Phillip Brown’s report as a source of medical information.

27.The JCA by Phillip Brown refers extensively to a treating doctor’s report (TDR) completed by a Dr McGuire. From this TDR, Mr Brown extracted three medical conditions, cervical spondylosis, left shoulder brachial pain and depression.

28.Regarding the diagnosis of cervical spondylosis, Mr Brown reported that the Treating doctor advised that this condition is likely to persist between 3‑24 months with an uncertain prognosis and the condition was categorised as temporary.

29.Regarding the diagnosis of left shoulder brachial pain, Mr Brown reported Dr P McGuire advised that this condition is likely to persist between 3‑24 months with an uncertain prognosis. This condition was also categorised as temporary.

30.With regard to depression, Mr Brown reported Dr McGuire advised that this condition is temporary and is likely to fluctuate in the next two years.

31.Although the JCA by Mr Brown is silent on the matter, it appears that Mr Brown concluded that Mr Yitbarek was not entitled to DSP on the grounds that all three medical conditions were deemed temporary. For two of the three medical conditions, the report does not make clear whether the judgement temporary was that of Mr Brown or of the treating doctor. 

32.In his recommendation, Mr Brown wrote:

The JCA assessor acknowledges the considerable difficulties expressed by Mr Yitbarek and accordingly does not consider him suitable for employment assistance at this time. However, the medical information provided for the current assessment, and that summarised by previous JCA reports, clearly state that all conditions are likely to persist between 3 and 24 months or significantly improve.

As per the previous two JCA reports, Mr Yitbarek is considered most suitable for Disability Employment Network (DEN) assistance. A deferred referral is recommended after a nil work capacity of 9 months.

33.Job Capacity Assessor David See, a registered psychologist, assessed Mr Yitbarek on behalf of Centrelink on 27 October 2009. Mr Yitbarek was referred for this JCA because he lodged a medical certificate for Newstart Allowance. In his report, Mr See identified the following sources of medical information: a previous job capacity assessment completed by Phillip Brown, a medical certificate from Dr Jenny Blackett-Smith dated 8 October 2009, an appointment letter to the Endothyroid Clinic, and a pathology request by St Vincent’s Hospital.  Mr Yitbarek provided the last two documents to Mr See.

34.Mr See observed that Mr Yitbarek presented in a depressed and agitated manner. He recorded a detailed account of Mr Yitbarek’s symptoms which included low energy, frequent tiredness and lethargy (ascribed by the applicant to past surgical treatment for thyroid cancer). He also recorded severe pain and muscle weakness in the left arm and loss of sensation in the left hand (due to neurological damage to the left hand) leading to poor hand function, restricted movement and poor physical ability in the left arm. Also reported was a problem of left shoulder pain and a possible rotator cuff problem. In addition, Mr See wrote:

The client also suffers from depression since 1996. He reported symptoms of depressed mood, low energy, poor sleep, poor concentration, memory loss, and low motivation. He has been advised to seek additional psychiatric or psychological treatment to manage his depression.

35.In his report, Mr See determined that the medical condition of:

(1)thyroid cancer was permanent but was not fully diagnosed, treated and stabilised:

(2)neurological damage to the left hand was permanent but not fully diagnosed, treated and stabilised;

(3)left shoulder pain, with possible rotator cuff problem was temporary and not fully diagnosed, treated and stabilised; and

(4)depression of onset in 1966 was temporary and not fully diagnosed, treated and stabilised. 

36.In a Centrelink medical certificate dated 5 February 2010, Dr Jenny Blackett‑Smith of North Yarra Community Health certified three diagnoses:

(1)L shoulder pain? rotator cuff,

(2)neurological damage to left hand and

(3)depression. 

Dr Blackett-Smith deemed that conditions (1) and (3) were temporary and condition (2) was permanent.

37.Printouts of Centrelink computer records show that Dr Jenny Blackett‑Smith provided medical certificates which certified that Mr Yitbarek was unfit to work between 14 July 2010 and 13 October 2010 and between 22 September 2010 and 22 December 2010. In both certificates all three listed conditions (depression, shoulder and upper arm disorder and nervous system – other) were deemed permanent.

38.In summarising Mr Yitbarek’s evidence before it, the SSAT has recorded (among other matters):

His depression has been a longstanding problem. He now takes Largactil and Apotex. He has permanent shoulder and elbow injuries, and a thyroid condition which continues to affect him.

39.In his application for DSP dated 27 October 2010, Mr Yitbarek wrote that his injuries and disabilities included fracture left elbow, shoulder and neck injury, thyroid condition, gunshot wound in R shoulder, long standing depression, anxiety.

40.In the medical report accompanying the October 2010 DSP application (undated, but signed by the applicant on 20 October 2010) Dr Blackett‑Smith provided diagnoses of depression (of onset in the ?90s), L neck, shoulder arm pain (of onset in 2006) and left elbow pain (of onset in the 1980s and secondary to the gunshot incident with a fall onto his left elbow causing a fracture that was not treated). Dr Blackett-Smith also certified a diagnosis of carcinoma of the thyroid treated surgically by thyroidectomy. Dr Blackett‑Smith deemed that the first two conditions were going to impact on his ability to function for more than 24 months and that the depression was expected to remain unchanged. 

OTHER MATERIAL BEFORE THE TRIBUNAL

41.In a letter dated 6 May 2011, Kate Norman, ARO at Centrelink wrote to Mr Yitbarek. In the letter, Ms Norman wrote:

I telephoned you on 5 and 6 May 2011 to advise and discuss with you my decision in relation to your request for review.

Not made clear in this letter is that those two telephone calls failed to make contact with the applicant. The letter explained that:

The start date of 15 February 2008 on your Pensioner Concession Card is not the start date of your Disability Support Pension .... Your Disability Support Pension can only commence from the date you first contacted Centrelink about claiming that payment...

42.On behalf of the respondent, Mr Tim Noonan submitted a five page statement of facts and contentions (SFC). Under the heading Contentions, the respondent observed that:

The Secretary agrees with the finding of the SSAT that .... the contact by WISE Employment on 12 October 2010 satisfied subsection 13(2)(a) of the Act. Centrelink has issued a notice to the applicant acknowledging that contact ... so that subsection 13(2)(c) is satisfied. 

43.In supplementary information requested by the Tribunal, Mr Noonan provided the JCA report of Phillip Brown and additional information regarding qualification for, and issue of, a PCC.

44.On pages three and four of the SFC, the respondent provided excerpts of the legislation relevant to the start date for payments. The respondent accepted the SSAT findings of Mr Yitbarek’s incapacity for work due mainly to depression from October 2009 but because the applicant made a claim for the DSP more than five weeks subsequent to that date, the respondent stated that Mr Yitbarek was not eligible for backdating of payments to October 2009. The relevant legislation is quoted below.

45.The respondent submitted that the start date for payment of the applicant’s DSP is the period of 4 weeks ending immediately before the day on which the claim was made, that is, 13 September 2010.

46.The respondent’s SFC, in its listing of the chronology, noted the applicant’s request for back payment to 15 February 2008 but made no further reference to this matter.

LEGISLATION

47.The relevant legislation is contained in the Social Security (Administration) Act 1999 (the Administration Act) and in Schedule 2 of the Social Security Act1991 (the Act).  Section 13 (2) of the Act provides:

13(2)for the purposes of the social security law, if:

(a)the Department is contacted by or on behalf of a person in relation to a claim for a social security payment, other than crisis payment or special employment advance ; and

(b)the person is, on the day on which the Department is contacted, qualified for the  social security payment; and

(c)the Secretary gives the person a written notice acknowledging that the Department has been contacted in  relation to the making of the claim: and

(d)person lodges a claim for the payment more than 14 days, but not more than 13 weeks, after the Department is contacted; and 

(e)the Secretary is satisfied that:

(i) throughout the period starting on the day on which the Department was contacted and ending on the day on which the person lodged the claim, the person was suffering from a medical condition; and

(ii) that medical condition, or circumstances related to that medical condition, had a significant adverse effect on the person’s ability to lodge the claim earlier;

the person is taken to have made a claim for the social security payment on the day on which the Department was contacted

48.Section 41(1) of the Act provides that

41(1)Unless another provision of the social security law provides otherwise, a social security payment becomes payable to a person on the person’s start day in relation to the social security payment.

49.Section 42 provides that

42For the purposes of the social security law, a person’s start day in relation to a social security payment or a concession card is the day worked out in accordance with Schedule 2.

50.Clause 3(1) of Schedule 2 of the Act provides:

3 Start day – general rule

(1)If:

Aa person makes a claim for social security payment; and

Bthe person is qualified for the payment on the day on which the claim is made;

the person’s start day in relation to the payment is the day on which the claim is made

51.Clause 11(2) of the Schedule of the Act provides:

11(2) If:

(a)a person becomes incapacitated for work as a result of a medical condition; and

(b)the person makes a claim for a benefit or a pension more than 5 weeks after the day on which the incapacity begins; and

(c)the Secretary is satisfied that

(i)     the person has continued to suffer the medical condition from the day on which the incapacity began until the claim was made; and

(ii)     the medical condition was the sole or principal cause of the person’s failure to make the claim within 5 weeks after the day on which the incapacity began;

the person’s start day in relation to the pension or benefit is the first day on which the person was qualifies for the benefit or pension in the period of 4 weeks ending immediately before the day on which the claim was made.

52.The legislation also addresses the period of time that is provided for an unsuccessful applicant to make an appeal about a Centrelink decision. Section 107 (3) of the Act provides that

(3) If:

(a)a decision (the original decision ) is made rejecting a person's claim for a social security payment or concession card; and

(b)the person is given a notice informing him or her of the original decision; and

(c)more than 13 weeks after the notice is given, the person applies to the Secretary, under section 129, for review of the original decision; and

(d)a decision that the claim be granted is made as a result of the application for review;

the determination embodying the last-mentioned decision takes effect on the day on which the application for review was made.

CONSIDERATION OF THE ISSUES

53.In relation to the DSP that was initially granted from 3 November 2010, it is clear from the Centrelink records that Centrelink was contacted on 12 October 2010 by a person acting on behalf of the applicant and that that record shows that the applicant intended to claim DSP.

54.It is also clear that the applicant’s claim lodged on 3 November 2010 was lodged more than 14 days, but not more than 13 weeks, after the contact made on his behalf on 12 October 2010. On this basis, section 13(2)(d) of the Act is satisfied.

55.The medical evidence is clear that, between 12 October 2010 and 3 November 2010, the applicant was sufficiently unwell such as to have an adverse effect on the person’s ability to lodge the claim earlier than 3 November. Accordingly, section 13(2)(e) of the Act is satisfied. As a result, section 13(2) of the Act applies, with the consequence that his application for DSP is taken to have been made on 12 October 2010.  Thus the decision made by the SSAT is affirmed.

56.As to whether Mr Yitbarek is entitled to DSP back payments to 2008, it is clear that there was no claim for DSP in train at that time. While it may have been open to Centrelink to regard Mr Yitbarek’s letter dated 10 August 2007 as a notice of intention to seek review of an earlier decision of Centrelink, the only relevant decision on which such an application could be based was Centrelink’s refusal to grant DSP upon his application on 26 September 2005. According to the provisions of the Act, August 2007 was well beyond the time limits for lodging such an application. Therefore, this claim must fail.

57.As to whether Mr Yitbarek is entitled to back payments to 15 February 2008, two factors are relevant.

58.First, as he did not lodge an application for review of the decision in February 2008 not to grant DSP, there is no reviewable decision before this Tribunal. Thus his claim must fail. Even if there were medical grounds which prevented Mr Yitbarek from seeking review of that decision, in law the application would still fail because the 13 week time limit provided in the Act has long since elapsed.

59.Second, Mr Yitbarek has expressed a belief that because his PCC has a start day of 15 February 2008, his DSP should also start from that date. While this belief is understandable, it is not correct.  Under section 1061ZA of the Act it is clear that entitlement to a PCC is linked to a range of categories of benefits that persons may be receiving. In Mr Yitbarek’s case, he became entitled to a PCC by virtue of being in receipt of the Newstart Allowance and having a partial capacity for work.

60.It is clear to this Tribunal from the medical evidence, and the respondent has accepted, that from 17 January 2009 to 22 December 2010 Mr Yitbarek was deemed medically unfit to work. During that time (from 13 September 2009) he came under the care of Dr Jenny Blackett-Smith. As indicated by her serial medical certificates and the DSP medical report she completed in October 2010, Dr Blackett-Smith’s assessment of the permanency of Mr Yitbarek’s illnesses was gradually changing. It was not until October 2010 that she certified his most disabling illness (mental ill- health) as likely to affect his ability to function for more than 24 months. Thus, if this was the only material available to Centrelink, it would have been difficult to grant DSP at any earlier date.

61.However, Centrelink did have available David See’s JCA dated 27 October 2009.  Mr See observed that Mr Yitbarek presented in a depressed and agitated manner. He recorded a detailed account of Mr Yitbarek’s symptoms which included low energy, frequent tiredness and lethargy (ascribed by the applicant to past surgical treatment for thyroid cancer), and severe pain and muscle weakness in the left arm and loss of sensation in the left hand (due to neurological damage to the left hand) leading to poor hand function, restricted movement and poor physical ability in the left arm. He also reported left shoulder pain and a possible rotator cuff problem. In addition, Mr See wrote:

The client also suffers from depression since 1996. He reported symptoms of depressed mood, low energy, poor sleep, poor concentration, memory loss, and low motivation. He has been advised to seek additional psychiatric or psychological treatment to manage his depression.

62.In his report, Mr See determined that the medical condition of

(1)thyroid cancer was permanent but was not fully diagnosed, treated and stabilised,

(2)neurological damage to the left hand was permanent but not fully diagnosed, treated and stabilised,

(3)left shoulder pain, with possible rotator cuff problem was temporary and not fully diagnosed, treated and stabilised, and

(4)depression of onset in 1996 was temporary and not fully diagnosed, treated and stabilised.

[At this point, the Tribunal observes that the conclusion that the thyroid cancer was both permanent but was not fully diagnosed, treated and stabilised was either not supported by the available medical evidence or was medically illogical.]

63.It appears that the only medical information that Mr See had available to him from treating doctor, Dr Blackett-Smith, was the medical certificate dated 8 October 2009. His report was not based on a treating doctor’s report (other than indirectly by Mr See’s reference to the report of Dr McGuire mentioned in the JCA of Phillip Brown dated 22 January 2009).

64.From all the medical material before the Tribunal, it is apparent now, and should have been apparent to Centrelink in 2009, that the diagnosis of some of Mr Yitbarek’s several medical conditions, the consequences of those conditions and whether any further treatment is possible or planned, remains unclear. By combining all the diagnoses offered in the medical certificates as well as the treating doctors reports and the JCAs, the following medical conditions emerge:

(1)depression of onset in 1996 accompanied by agitation and/or anxiety;

(2)memory loss;

(3)an old untreated bullet wound to the right shoulder, the consequences of which, if any, are not identified;

(4)an old untreated fracture of the left elbow, including mention of subsequent osteoarthritis and/or epicondylitis;

(5)neurological damage  to the left hand with reduced function of the left arm;

(6)cervical radiculopathy or cervical spondylosis (side unstated);

(7)left shoulder brachial pain;

(8)carcinoma of the thyroid gland treated surgically and now requiring replacement therapy with thyroid hormone; and

(9)a shoulder injury (side unstated) that may represent a rotator cuff injury or subacromial bursitis.

It is unclear whether diagnoses 1 and 2 are linked. It is equally unclear whether diagnosis 5 (neurological damage to the left hand with reduced function of the left arm) is a consequence of, or linked to, diagnoses 4, 6 or 7. In the absence of more detailed medical reports it is not possible to determine whether diagnoses 5, 6 and 7 refer to one condition or more than one condition.

65.Mr See’s conclusions, and the apparently limited medical evidence upon which he based those conclusions, are of concern to the Tribunal for the following reasons. Although termed a job capacity report, such reports are also a basis for Centrelink officers denying or awarding DSP, as amendments to the Act make it clear that one task of job capacity assessors is to provide their opinion on the question of impairment points.

66.The Introduction to the Tables for The Assessment Of Work-Related Impairment for Disability Support Pension  (the Impairment Tables) in Schedule 1B of the Act provides that

4.A rating is only to be assigned after a comprehensive history and examination.  For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised.  The first step is thus to establish a working diagnosis based on the best available evidence.  Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating.  In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.

5.The condition must be considered to be permanent.  Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future.  This will be taken as lasting for more than two years.  A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.

67.At the time of Mr See’s assessment of Mr Yitbarek, the applicant did not have a claim for DSP before Centrelink. However, the file did show three prior DSP applications, including two in the previous year. In my view it should have been clear to Mr See, and/ or to the Centrelink officer who considered the report from Mr See, that the report canvassed quite serious permanent medical conditions. The Impairment Tables require a comprehensive history and examination and make clear that arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating. Given the complexity of Mr Yitbarek’s possible diagnoses and the limited nature of the medical reports available to the job capacity assessor, it may have been preferable and fairer to the applicant that advice be sought from the Health Professional Advisory Unit or that he be referred to Health Services Australia (HSA) for a detailed medical assessment.

68.I hasten to point out that it would be speculative for the Tribunal to suggest that referral to HSA would have led to a different outcome. I have already observed that the assessment of Mr Yitbarek by his treating doctor (Dr Blackett‑Smith) was evolving during 2009; and it was not until her report in October 2009 that she deemed that the first two conditions listed in her report were going to impact on his ability to function for more than 24 months and that the depression was expected to remain unchanged.

69.I also point out that the Introduction to the Impairment Tables in paragraph 4 states that The first step is thus to establish a working diagnosis based on the best available evidence. Thus, it cannot be argued that the assessment made by the job capacity assessor was not within the terms of the legislation. However, in all the circumstances, it can be argued that Mr See was placed in a situation whereby he was required to make clinical judgements that were either outside his professional training or were not well founded because of the limited medical information at his disposal. His conclusion that the condition of cancer of the thyroid which had been treated surgically was permanent but not fully diagnosed, stabilised and treated is medically illogical. The report mentions the source of his information as specialist report but this is contradicted on page 5 where such a source is not identified.

70.As this hearing has been determined on the papers, I have not had the benefit of hearing from the respondent as to whether Centrelink staff and the job capacity assessors have access to internal guidelines that adequately assist them when faced with complex medical problems and/or insufficient medical documentation. The difficulties in medical assessment identified in the current application (especially the remarks made in paragraphs 57 to 63) may represent an opportunity for the respondent to review the guidelines.

CONCLUSIONS

71.As there was no appeal lodged in regard to the DSP application of 15 February 2008, the appeal to this Tribunal now must fail.

72.There are no legal grounds for linking the issuing of a PCC to the start date for DSP and an appeal on such grounds must also fail.

73.Based on all the considerations outlined previously, I am satisfied that the correct decision in this matter is that that the start date for DSP was 13 September 2010.   

DECISION

74.     I affirm the decision under review.

I certify that the seventy-four [74] preceding paragraphs are a true copy of the reasons for the decision of:

Dr Kerry Breen, Member

signed:   ................[sgd].................................................

Clerk

Date of hearing:  4 October 2011

Date of decision:  22 November 2011
Advocate for the applicant:         Self‑represented

Advocate for the respondent:      Mr Tim Noonan,

Centrelink Legal Services Branch