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

[2015] AATA 986

Youkhana and Secretary, Department of Social Services (Social services second review) [2015] AATA 986 (18 December 2015)

Division	GENERAL DIVISION
File Number	2015/2895
Re	Stanley Youkhana
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr I Alexander, Member
Date	18 December 2015
Place	Sydney

The decision under review is affirmed.

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

Dr I Alexander, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension –– whether conditions fully diagnosed, treated and stabilised – impairment ratings – whether applicant has 20 points under the impairment tables – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

SECONDARY MATERIALS

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

REASONS FOR DECISION

Dr I Alexander, Member

18 December 2015

1. Mr Youkhana is currently 56 years old and on 5 December 2014 he lodged a claim for Disability Support Pension (DSP) on the basis that he suffered several medical conditions which were having an impact on his ability to function.

2. Mr Youkhana’s 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 because his impairment was not 20 points or more under the Impairment Tables.

3. In a decision dated 18 May 2015 the Social Security Appeals Tribunal (“SSAT”) found that Mr Youkhana’s total impairment rating was 5 points, and therefore he did not satisfy s 94(1)(b) of the Act.

4. In these proceedings Mr Youkhana seeks review of the SSAT decision.

5. Mr Youkhana attended the hearing by telephone and was self-represented.

   ISSUES

6. In order to qualify for DSP, Mr Youkhana 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 5 December 2014  and 6 March  2015 (the claim period).

7. 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.

8. The Respondent concedes and the Tribunal accepts that Mr Youkhana 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.

9. 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)).

10. 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)).

11. 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”.

12. Also, the Introduction to Table 5 of the Determination, which is to be used where a person has a permanent condition resulting in functional impairment due to a mental health condition, states that the diagnosis of the condition “must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made a psychiatrist)”.

13. For present purposes the relevant medical conditions to be considered by the Tribunal are conditions impacting on spinal function (back pain), mental health function (depression and anxiety) and lower limb function (right Achilles tendon).

14. The SSAT considered other conditions, namely, “cholesterol” and “hernia and rectal bleeding”.

15. As there is no medical evidence before the Tribunal with respect to the conditions of “cholesterol” or “rectal bleeding” I am satisfied that a rating under the Impairment Table cannot be applied.

16. An ultrasound examination of the anterior abdominal wall dated 9 March 2015 is reported as showing “the presence of a reducible umbilical hernia containing omentum only”.

17. Mr Youkhana told the Tribunal that surgical repair of the hernia has been scheduled for February 2016.

18. As the hernia was diagnosed after the end of the claim period and will not be fully treated until 2016 a rating under the impairment Tables cannot be applied.

19. Accordingly, the Tribunal must consider whether, during the claim period, the relevant conditions noted above caused Mr Youkhana to suffer an impairment of 20 points or more under the Impairment Tables and, if so, whether he had a continuing inability to work. 

    Lumbar spine condition (back pain)

20. The Respondent accepts that, during claim period, Mr Youkhana suffered a lumbar spine condition that is permanent for the purposes of the Impairment Determination and that this condition had a mild functional impact on activities involving spinal function so that a rating of 5 points under Impairment Table 4 can be applied.

21. Mr Youkhana told the Tribunal that his ‘back pain’ has become worse since he ceased employment in 2012, is present all the time but is usually made worse with most physical activities. He said that he does not require any assistance for daily self-care activities, is limited with respect to household duties, is sometimes able to help his wife with the washing and washing dishes and is able to do grocery shopping on his own.

22. Once a week he drives to the beach which takes about 50 minutes, swims for about 10 minutes, sits on the beach for one to two hours and then drives home. At home he often sits outside for 20 to 30 minutes with a cup of coffee.

23. Mr Youkhana told the Tribunal that currently he takes no medication for his pain.

24. In a Centrelink Medical Report dated 2 December 2014 Dr Genua, GP, lists “back pain –degenerative disc lesions” as a condition with most impact with a date of onset in July 2013. He describes impact on ability to function as “unable to lift weights, unable to perform repetitive bending, unable to sit/ stand for prolonged periods”.

25. Mr Youkhana told the SSAT, inter alia, that he can “kneel, bend and squat with care,…can sit in a chair for 30 minutes but for longer periods must alter his posture…is able to drive and catch public transport….can do chores around the house in a self–paced fashion …avoids heavy lifting…can negotiate steps and uneven ground ….does not require assistance to get in and out of a chair or bed”.

26. In a Job  Capacity Assessment (JCA)  report dated submitted on the 15 January 2015 the assessor notes, inter alia, that  Mr Youkhana reports “ that he has some difficulties bending to knee level …experiencing fluctuating low back pain …a sitting tolerance of up to 1 hour before requiring to stand to shift his posture …is independent in all self care activities”.

27. On consideration of relevant descriptors in Impairment Table 4 I am satisfied that the evidence before the Tribunal demonstrates that, during the claim period, Mr Youkhana’s  lumbar spine condition had only a mild functional impact on activities of spinal function so that a rating of  5 points can be applied.

    The lower limb condition (right Achilles tendon)

28. The Respondent accepts that, during claim period, Mr Youkhana suffered a condition of the lower limb that is permanent for the purposes of the Impairment Determination but contends that the condition had no functional impact on activities requiring use of the lower limbs so that a rating of 0 points under Impairment Table 3 should be applied.

29. Mr Youkhana told the Tribunal that in late 1998 he suffered a ruptured right Achilles tendon which was surgically repaired. He claims that as a result of this injury there is significant right calf muscle wasting with weakness in the leg so that he cannot “jump or run”. He explained that he suffers pain from time to time but if he stands for more than 1 hour he often gets acute “shooting pains” in the right foot. He is able to walk for 30 to 40 minutes and can manage stairs only slowly particularly when descending.

30. Mr Youkhana told the Tribunal that after he had recovered from his operation in 1998 he was able to continue working for many years but was unable to provide a satisfactory explanation as to how the functional impact of his “Achilles tendon” condition had changed since he stopped working in 2012.

31. In his report of 2 December 2014 Dr Genua lists “Ruptured Achilles tendon (R)ankle”  as a condition with significant impact and a date of onset as 1998.  He describes impact on ability to function a “difficulty with prolonged walking” but provides no other details.

32. In the JCA report of 15 January 2015 the assessor notes, inter alia, that Mr Youkhana reports that “…he walks to and from his local shops (approximately 10 minute walk each way) to buy light grocery items ….is able to mobilise around his home and local community independently and without the use of any walking aids…is able to stand unaided for 10 minutes and walk up to half an hour…. is able to ascend and descend stairs without any difficulties….”

33. Mr Youkhana told the SSAT that he is able to “ambulate, kneel, squat, and stand on toes but he avoids running or jogging”.

34. The SSAT concluded that the evidence revealed that “Mr Youkhana can walk without difficulty, can squat and kneel with caution and support, can stand unaided for more than 10 minutes and can use stairs”.

35. On consideration of relevant descriptors in Impairment Table 3 I am satisfied that the evidence before the Tribunal demonstrates that, during the claim period, Mr Youkhana’s  “Achilles tendon condition” had no functional impact on activities requiring the use of the lower limbs so that a rating of  0 points should be applied.

    Mental health condition

36. In his report Dr Genua lists “Depression/ Anxiety” as a medical condition that is generally well managed and caused minimal or limited impact but provides no other details.

37. Mr Youkhana told the Tribunal that his claimed condition has not been diagnosed by a Psychiatrist or a Clinical Psychologist, which means that he has not satisfied the requirements of Impairment Table 5 so that a rating under that Table cannot be applied.

    DECISION

38. For reasons set out above I am satisfied that, during the claim period, Mr Youkhana’s impairment was not 20 points or more so that he did not satisfy s94(1)(b) of the Act and did not qualify for DSP.

39. The decision under review is affirmed.

I certify that the preceding 39 (thirty -nine) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member

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

Associate

Dated 18 December 2015

Date(s) of hearing	25 November 2015
Applicant	In person
Solicitors for the Respondent	Ms G Doyle, Department of Human Services