Zaporowski and Secretary, Department of Social Services (Social services second review)
[2023] AATA 4042
•5 December 2023
Zaporowski and Secretary, Department of Social Services (Social services second review) [2023] AATA 4042 (5 December 2023)
Division:GENERAL DIVISION
File Number(s): 2023/0871
Re:Zbigniew Zaporowski
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Senior Member Professor Ann O'Connell
Date:5 December 2023
Place:Melbourne
The Tribunal sets aside the decision of the Social Services and Child Support Division
of the Administrative Appeals Tribunal dated 10 January 2023 and substitutes a decision that the Applicant met the eligibility requirements of section 94 of the Social Security Act 1991 (Cth) and was qualified for the Disability Support Pension at the date of his claim on 17 June 2021....................[sgd].....................................................
Senior Member Professor Ann O'Connell
Catchwords
SOCIAL SECURITY – refusal of disability support pension – whether applicant's medical conditions were fully diagnosed, treated, and stabilised – whether impairments rated 20 points or more under the Impairment Tables – whether the impairments rated 20 points or more under a single heading of the Impairment Tables – whether there was a continuing inability to work – decision under review set asideLegislation
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth) Sch 2 Cl 4Cases
Re Fanning and Secretary, Department of Social Services [2014] AATA 447
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404Lucas and Secretary, Department of Social Services (Social services second review) [2018] AATA 2563
Newman and Secretary, Department of Family and Community Services [2002] AATA 917 Smalldon and Secretary, Department of Social Services [2015] AATA 2
Smalldon and Secretary, Department of Social Services [2015] AATA 575Smyrniadou and Secretary, Department of Social Services (Social services second review) [2022] AATA 2433
Secondary Materials
Social Security (Active Participation for Disability Support Pension) Determination 2014
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2023
REASONS FOR DECISION
Senior Member Professor Ann O'Connell
5 December 2023
INTRODUCTION
This case involved an application for a Disability Support Pension (‘DSP’) by the Applicant, Mr Zbigniew Zaporowski. Mr Zaporowski lodged a claim for a DSP on 17 June 2021, in which he referred to several physical conditions that impacted his ability to work. The claim was rejected by Centrelink on 18 July 2021 and, on 26 July 2022, this decision was affirmed by an Authorised Review Officer (‘ARO decision’) at Centrelink. Mr Zaporowski’s appeal to the Social Services and Child Support Division of this Tribunal (‘AAT1 decision’) was heard on 10 January 2023 and was unsuccessful. On 13 February 2023, the Applicant lodged a further appeal with the General Division of this Tribunal.
The Tribunal notes the significant delay between the initial decision by Centrelink and the decision being reviewed by an Authorised Review Officer. The Tribunal notes that the Officer did apologise to Mr Zaporowski for the delay, but the delay was unfortunate.
The hearing was conducted on 22 November 2023 by teleconference. Mr Zaporowski was self-represented and gave evidence under affirmation. The Respondent ('Secretary’) was represented by Mr Hugo Rogers of Sparke Helmore Lawyers.
For the following reasons, the Tribunal sets aside the decision under review and substitutes a decision that the Applicant met the eligibility requirements of section 94 of the Social Security Act 1991 (Cth) (‘the Act’) and was qualified for DSP at the date of his claim on 17 June 2021.
BACKGROUND
The Applicant, Mr Zaporowski, is 63 years old. He came to Australia from Poland in 1986 [T10, p 41]. He lives alone although his adult son is staying with him temporarily. Since arriving in Australia, he has had a variety of jobs, including as a machine operator in factory settings. Most of these jobs involved loading and unloading containers and included being required to lift and move heavy objects. His most recent full-time employment finished in March 2021 because he did not feel able to complete the tasks he was required to do.
LEGISLATIVE FRAMEWORK
The qualifying requirements for DSP are set out at s 94(1) of the Act. It must be established, inter alia, that:
(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)…
(iii)the person has a continuing inability to work.
Under s 94(2) a person has a ‘continuing inability to work’ if the Secretary is satisfied that:
(aa)…where the impairment is not a severe impairment,… the person has actively participated in a program of support [(‘POS’)]…;
(a)…the impairment is of itself sufficient to prevent the person from doing any work independently of a POS within the next two years; and
(b)…
(i)the impairment is of itself sufficient to prevent the person undertaking a training activity during the next two years; or
(ii)if the impairment does not prevent the person undertaking a training activity, such activity is unlikely… to enable the person to do any work independently of a [POS] within the next two years.
‘Work’ is defined in s 94(5) as work:
(a)that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
(b)that exists in Australia, even if not within the person’s locally accessible labour market
Under s 94(3B) of the Act, a person has a severe impairment if the impairment is 20 points or more under a single Impairment Table. Where a person has a severe impairment under a single Impairment Table, it is still necessary to consider if they have an inability to work for at least 15 hours per week due to their impairment. Where a person’s impairment is not a severe impairment under a single Impairment Table, they must have an inability to work and have actively participated in a POS under s 94(3C) of the Act.
Mr Zaporowski satisfies the age requirement (s 94(1)(d)) being over 16 years of age, and as he is not under 35 years of age, he was not required to meet the participation requirements in s 94(1)(da). Mr Zaporowski appears to satisfy the residency requirements (ss 94(1)(e) and (ea)) – he gave evidence that he became an Australian resident approximately 2 years after arriving in Australia. In any event, the Secretary has not challenged the Applicant’s residency status.
The Impairment Tables referred to in s 94 of the Act are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (‘the 2011 Determination’).[1] The Impairment Tables assign ratings reflecting the level of functional impact a condition has on an applicant. Subsection 6(3) of the 2011 Determination states that an impairment rating can only be assigned if a condition causing an impairment is ‘permanent’ (s 6(3)(a)) and the impairment is ‘more likely than not, in light of available evidence, to persist for more than two years’ (s 6(3)(b)).
[1]Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2023 came into force on 1 April 2023, but it was accepted that the 2011 Determination was the applicable Determination to deal with the Applicant’s claim.
Subsection 6(4) further states that a condition is permanent if the condition has been ‘fully diagnosed by an appropriately qualified medical practitioner’, has been ‘fully treated’, has been ‘fully stabilised’ and ‘is more likely than not, in light of available evidence, to persist for more than two years’.
In relation to whether an impairment is ‘fully diagnosed and fully treated’ and ‘fully stabilised’, s 6 of the 2011 Determination relevantly states:
Fully diagnosed and fully treated
(5)In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
Fully stabilised
(6)For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Note: For reasonable treatment see subsection 6(7).
Reasonable treatment
(7)For the purposes of subsection 6(6), reasonable treatment is treatment that:
(a)is available at a location reasonably accessible to the person; and
(b)is at a reasonable cost; and
(c)can reliably be expected to result in a substantial improvement in functional capacity; and
(d)is regularly undertaken or performed; and
(e)has a high success rate; and
(f)carries a low risk to the person.
EVIDENCE
The Tribunal took into evidence documents lodged by the Secretary numbering 226 pages and a renal ultrasound report dated 29 August 2023 lodged by Mr Zaporowski and also considered oral evidence given by Mr Zaporowski at the hearing.
The Tribunal considered the medical evidence provided which included the following:
·The report of the MRI of the thoracolumbar spine dated 18 December 2001 [T3].
·The report from rheumatologist Dr Alex Stockman dated 11 July 2007 [T4] documented first review in November 2001 for low thoracic and low lumbar pain related to disc degeneration. He recommended physiotherapy, core strengthening, weight reduction and smoking cessation.
·The report of the CT scan of the cervical spine dated 8 November 2007 [T5] documented mild C6/7 cervical canal stenosis secondary to central and right C6/7 disc prolapse.
·The report from Dr Stockman dated 17 December 2007 [T6] documented radicular pain in the right arm due to right C6/7disc bulge/prolapse and recommended MRI and neurosurgical review.
·The report of a Medical Panel – Certificate of Opinion by Dr Carol Newlands and Dr Anthony Sheehan dated 20 June 2008 [T8] for work-related psychological injury (depression, stress-related illness) that allotted a 15% impairment for the condition.
·The reports for the X-ray of the cervical spine dated 15 March 2011 [T11] and the CT scan of the cervical spine dated 27 April 2011 [T12].
·The reports of MRI of the cervical spine, CT scan of the lumbar spine and ultrasound of right elbow dated 12 January 2018 [T13].
·The medical certificates from Dr Kevin Tan dated 14 April 2021 and 30 June 2021 documented temporary exacerbation of permanent conditions of cervical and lumbar spondylosis and left knee osteoarthritis and Baker’s cyst. Additional medical certificates related to the period after the qualification period i.e., 7 October 2021, 16 December 2021, 22 March 2022, 21 June 2022, 29 September 2022 and 28 December 2022 [T24]. Dr Tan documented use of additional amitriptyline on 16 December 2021 for pain management and noted that pain management review was planned.
·The detailed report from Dr Tan dated 18 August 2021 [T21] documented impacts secondary to chronic back pain and detailed the history of medical conditions. Dr Tan’s report also included a number of attachments, including:
o The report of upper limb nerve conduction studies by medical scientist Mr Callum Hollis and neurologist Associate Professor Tim Day dated 18 July 2018 which demonstrated mild right ulnar nerve neuropathy (sensory) and mild median nerve neuropathy at the right wrist consistent with carpal tunnel syndrome.
o The report of the ultrasound and X-ray of the left knee dated 2 April 2021 documented mild, early osteoarthritis and Baker’s cyst.
o The report of the ultrasound of the right knee dated 27 May 2021 documented no significant soft tissue abnormality.
o The report of the CT scan of the thoracic spine dated 29 June 2021 documented thoracic spondylosis with T7-T10 canal stenosis secondary to central disc prolapse and vertebral endplate osteophytic lipping.
o Documentation of non-attendance at a neurosurgical clinic at St Vincent’s Hospital on 18 March 2008 and18 January 2011.
The Tribunal also considered:
·The Job Capacity Assessment Reports (JCARs) dated 1 May 2008 [T7] and 3 August 2010 [T10]. These reports appear to be related to earlier applications for a DSP.
·The Medical Eligibility Assessment reports dated 22 June 2021 [T17] and 12 July 2021 [T19].
·The letter from Northern Health dated 8 November 2022 [T23] documented that, as Mr Zaporowski would not undertake their COVID-19 safety requirements they would not be able to provide in-person therapy and recommended telehealth services, which are noted to have been declined.
ISSUES
The issues for the Tribunal to determine are:
(i)the relevant period for Mr Zaporowski’s claim;
(ii)whether Mr Zaporowski has a physical, intellectual or psychiatric impairment under s 94(1)(a) of the Act; and, if so,
(iii)whether Mr Zaporowski has a physical, intellectual or psychiatric impairment rating of 20 points or more under the Impairment Tables as required by s 94(1)(b) of the Act; and, if so,
(iv)whether Mr Zaporowski also has a ‘continuing inability to work’ as defined in the Act as required by s 94(1)(c) of the Act.
(i) The relevant period
The Social Security (Administration) Act 1999 (‘Administration Act’) relevantly provides, at cl 4(1) of sch 2:
If:
(a)a person … makes a claim for a relevant social security payment; and
(i) the person is not, on the day on which the claim is made, qualified for the payment; and
(ii) assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(iii) the person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.
[emphasis added]
As the date of Mr Zaporowski’s claim is 17 June 2021, the period for assessing the Applicant’s entitlement to DSP is, therefore, the 13-week period from that date until 16 September 2021 (‘the qualification period’).
In the decision of Gallacher and Secretary, Department of Social Services [2015] FCA 1123, [25]-[29], the Federal Court affirmed the principle as discussed in Re Fanning and Secretary, Department of Social Services [2014] AATA 447, and Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 that medical reports that come into being after the qualification period will only be relevant to the extent that they refer to a person’s condition during the qualification period.
(ii) Does Mr Zaporowski have a physical, intellectual or psychiatric impairment?
Mr Zaporowski has a number of physical impairments. In his application for a DSP he listed the following:
·cervical and lumbar arthritis with foraminal narrowing (spinal condition)
·left knee osteoarthritis (left knee condition) [T16, pp 56–80].
On 26 July 2022, an ARO affirmed the original decision dated 18 July 2021 [T22, pp113–18]. The ARO found that the Applicant’s
·“cervical spondylosis in multiple levels and disc degeneration especially around C6/7 with cervical foraminal stenosis left C3/4 and right C6/7, lumbar spondylosis with foraminal stenosis (right L4 and S1, left L3/4 and L4/S1), thoracic canal stenosis mild T7/8, T8/9 and T9/10, moderate marked thoracic spondylosis” (the spinal conditions),
·“right wrist ulnar neuropathy and carpal tunnel syndrome” (the right arm conditions), and
·“left knee osteoarthritis” (the left knee condition),
were diagnosed, but not fully treated or fully stabilised. Therefore, according to the ARO they were not permanent and could not be assigned impairment ratings.
On 10 January 2023, the AAT1 affirmed the ARO decision [T2, pp 5–14). It made the following findings:
(a)The Applicant’s pain due to cervical, thoracic and lumbar spondylosis was fully diagnosed but not fully treated or fully stabilised;
(b)The Applicant’s left knee condition was fully diagnosed but not fully treated or fully stabilised;
(c)The Applicant’s median and ulnar nerve neuropathy was fully diagnosed but not fully treated or fully stabilised.
The Secretary accepts that during the qualification period Mr Zaporowski suffered from these impairments such that s 94(1)(a) is satisfied. Having considered the evidence before it in the medical reports provided and Mr Zaporowski’s evidence, the Tribunal finds that he has these impairments. The Tribunal therefore finds that Mr Thompson satisfies s 94(1)(a) of the Act.
Two other conditions were documented – depression and a renal condition. In relation to depression a Medical Panel formed as part of a Work Cover claim in 2008 was of the opinion that there was a 15% psychiatric impairment resulting from the accepted psychological condition injury [T8, p 29]. In his report dated 18 August 2021, Dr Tan notes under previous problems anxiety with depression and refers to Dr Oaks, psychologist [T21, p 91]. Mr Zaporowski was asked about his mental health and replied that it comes and goes. Based on the lack of evidence and on the fact that Mr Zaporowski was not relying on this condition, the Tribunal makes no finding about it. Mr Zaporowski lodged a renal ultrasound dated 29 August 2023 carried out because Mr Zaporowski had noticed blood in his urine. No claims were made as to how this condition impacted on his functioning and in any event the ultrasound is outside the qualification period. If there is some functional impact, the appropriate course would be to file a new application for a DSP. The Tribunal makes no finding about the renal condition.
(iii)Does Mr Zaporowski have an impairment rating of 20 or more points under the Impairment Tables?
Under s 94(1)(b) of the Act, Mr Zaporowski’s medical conditions must also attract an impairment rating of at least 20 points according to the Impairment Tables set out in the 2011 Determination.
As noted above, to apply the Impairment Tables, s 6(3) of the 2011 Determination provides that the condition must be considered ‘permanent’ and more likely than not, in light of available evidence, to persist for more than 2 years. For a condition to be permanent it must have been fully diagnosed by an appropriately qualified medical practitioner and been fully treated and stabilised (ss 6(4), (5) and (6) of the 2011 Determination) during the relevant period.
It is necessary to consider each of Mr Zaporowski’s medical conditions and then consider which, if any, Tables apply. It is then necessary to assess the level of functional impact under the relevant Table.
Spinal condition
The Tribunal finds, and the Secretary accepts, that Mr Zaporowski’s spinal condition is fully diagnosed. There are MRI and X-ray reports dating back to 2001 as well as reports from Dr Stockman in 2007/2008 documenting the condition. There are also numerous medical certificates from Mr Zaporowski’s doctor, Dr Tan. In his report dated 18 August 2021 Dr Tan noted:
Zbigniew's main medical conditions affecting his ability to function relate to his chronic back pain. As noted below, there are multiple causes for this. He has been diagnosed with the following:
1. Cervical spondylosis in multiple levels and disc degeneration especially around C6/7 with Cervical foraminal stenosis Left C3/4 and right C6/7;
2. Lumbar Spondylosis with foraminal stenosis (right L4 and S 1, left L3/4 and L4/S1)
3. Thoracic Canal stenosis mild T7/8, T8/9 and T9/10; Moderate Marked Thoracic spondylosis
….
The next issue is whether this condition is fully treated and fully stabilised. In order to assess whether a condition is fully diagnosed, treated and stabilised, it is necessary to consider: what treatment or rehabilitation has occurred; whether treatment is still continuing or is planned in the near future; and whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years.
In relation to treatment that has occurred, Dr Tan notes that this has included initial specialist review, physiotherapy and pain relief. He wrote:
[Mr Zaporowski] had previously seen Dr Alex Stockman, Rheumatologist, 119 Paisley St, Footscray 3011.
He has had Physiotherapy before but it aggravated his symptoms.
He was on Amitryptyline before. Has been referred to Neurosurgery at Royal Melbourne Hospital and St Vincent's hospital. It was unclear of the plan for treatment, however surgery would not be helpful for his conditions.
In 2021, he has tried Buprenorphine patches but his skin reacted to patches and he was unable to continue using them.
Dr Tan notes that Mr Zaporowski is ‘currently self-managing symptoms with modification of his activities of daily living’. For severe pain he uses Panadeine Forte. In the medication list the only item listed is ‘as required Panadeine Forte’.
The Secretary contends that the spinal condition is not fully treated and fully stabilised for the following reasons:
·There has been no specialist review since 2008;
·A recommendation to have surgery had not been taken up;
·There had been no recent treatment in the form of pain management; and
· Mr Zaporowski had not attended physiotherapy sessions.
In relation to specialist review, it is not clear that further review would result in any functional improvement. Mr Zaporowski saw a specialist in 2007/2008 who recommended physiotherapy and pain relief. His current GP, Dr Tan, continues to document the spinal condition and to monitor pain relief. Clearly the condition is degenerative and has presumably become worse with age [T21, p 91]. It is not clear that a specialist could do anything to improve the spinal condition.
In relation to surgery, Dr Tan notes on 18 August 2021 that ‘surgery would not be helpful for his conditions’ [T21, p 90].
In relation to pain management and physiotherapy, the Secretary argues that the fact that he was referred, presumably by Dr Tan, to Broadmeadows Hospital/Northern Health in 2022 was evidence that the condition was not fully treated and stabilised at the date of the claim. The Secretary also notes Mr Zaporowski’s non-attendance for physiotherapy at Broadmeadows Hospital. The Secretary argues that failure to attend any sessions is evidence that the condition was not fully treated and stabilised during the relevant period.
The Secretary pointed to a number of AAT cases where it was said that failure to attend a course in pain management indicated that the relevant condition had not been fully treated and stabilised: Newman and Secretary, Department of Family and Community Services [2002] AATA 917 (Newman); Smalldon and Secretary, Department of Social Services [2015] AATA 575 (Smalldon); Lucas and Secretary, Department of Social Services (Social services second review) [2018] AATA 2563 (Lucas); and Smyrniadou and Secretary, Department of Social Services (Social services second review) [2022] AATA 2433 (Smyrniadou). In Newman, the Tribunal noted that 3 doctors had recommended a course of pain management.[2] In Lucas, the treating GP had indicated that the condition was not fully treated and stabilised as further treatment, including pain management was required.[3] In Smyrniadou, the Tribunal noted a history of referral of the Applicant for better management of her pain and a refusal to comply with the referrals. However, in Smalldon, at the second review, the Tribunal did not agree with the decision in AAT1[4] and held that pain management was not likely to yield significant benefit and so it was accepted that the condition was fully treated and stabilised.[5] These cases suggest that each case must be decided on its own facts.
[2] Newman and Secretary to the Department of Family and Community Services [2002] AATA 917 [31].
[3] Lucas and Secretary, Department of Social Services (Social services second review) [2018] AATA 2563 [47]-[48].
[4] Smalldon and Secretary, Department of Social Services [2015] AATA 2.
[5] Smalldon and Secretary, Department of Social Services [2015] AATA 575 [6]-[7].
The detailed report of Dr Tan on 18 August 2021 and the numerous medical certificates from him over the qualification period and beyond indicate that the management of the spinal condition was with him. Apart from the correspondence from Northern Health in November 2022 there is no evidence that Mr Zaporowski’s treating doctor, Dr Tan thought that such treatment was necessary. It is also not clear whether the referral in 2022 relates to the spinal condition or the left knee condition or both.
Dr Tan notes that he tried a number of drugs including Amitriptyline (although it is not clear that this was for pain relief) and Buprenorphine patches but his skin reacted to patches, and he was unable to continue using them. Dr Tan notes that Mr Zaporowski takes Panadeine Forte when pain symptoms are severe.
Dr Tan also notes that he was referred to Neurosurgery at St Vincent's Hospital in 2008 (which he did not attend) but it is not clear if this appointment was to discuss the possibility of surgery or pain management. He was also referred to the Royal Melbourne Hospital in 2018 but this was in relation to the wrist condition.
In relation to physiotherapy, Mr Zaporowski gave evidence that he had not been able to attend the appointment because he was not vaccinated against COVID and did not think that any physiotherapy delivered by telehealth would be beneficial. Although his failure to attend was in a sense a result of choices he made, this was not simply a case of him refusing to have such treatment. Furthermore, Dr Tan notes that ‘[p]hysiotherapy was making his symptoms worse’ [T21, p 90].
Dr Tan notes that the prognosis is that the conditions in relation to his spine:
are most likely to deteriorate over time given the degenerative nature of the conditions. This will be permanent and will remain with him for the remainder of his lifetime.
This suggests that there is unlikely to be any improvement of the condition.
On that basis it appears that Mr Zaporowski has undertaken treatment as recommended by his GP, Dr Tan, and that any further treatment was unlikely to result in a substantial improvement in functional capacity.
Based on the medical evidence and on Mr Zaporowski’s oral evidence, the Tribunal finds that the spinal condition is fully diagnosed, fully treated and fully stabilised and therefore ‘permanent’. The Tribunal also finds that the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
The Secretary accepts that, if the condition is permanent, the appropriate Table to consider with respect to his spinal condition is Table 4: Spinal Function. Like the other Tables, Table 4 lists 5 possibilities:
(a) No functional impact (0 points);
(b) Mild functional impact (5 points);
(c) Moderate functional impact (10 points);
(d) Severe functional impact (20 points); and
(e) Extreme functional impact (30 points).
Table 4 of the Impairment Tables relevantly provides:
Points
Descriptors
0
There is no functional impact on activities involving spinal function.
(1) The person can:
(a) bend down to pick a light object off the floor (e.g. a piece of paper); and
(b) turn their trunk from side to side; and
(c) turn their head to look to the sides or upwards.
5
There is a mild functional impact on activities involving spinal function.
(1) The person has some difficulty in:
(a) activities over head height (e.g. activities requiring the person to look upwards); or
(b) bending to knee level and straightening up again without difficulty; or
(c) turning their trunk or moving their head (e.g. to look to the sides or upwards).
10
There is a moderate functional impact on activities involving spinal function.
(1) The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:
(a) the person is unable to sustain overhead activities (e.g. accessing items over head height); or
(b) the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or
(c) the person is unable to bend forward to pick up a light object placed at knee height; or
(d) the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).
20
There is a severe functional impact on activities involving spinal function.
(1) The person is unable to:
(a) perform any overhead activities; or
(b) turn their head, or bend their neck, without moving their trunk; or
(c) bend forward to pick up a light object from a desk or table; or
(d) remain seated for at least 10 minutes.
30
There is an extreme functional impact on activities involving spinal function.
(1) The person is:
(a) completely unable to perform activities involving spinal function; or
(b) unable to bend or turn their trunk or their neck to complete the most basic of daily activities (e.g. dressing, bathing, showering or light housework).
The evidence about the functional impairment of Mr Zaporowski as a result of this spinal condition is from Dr Tan in his report dated 18 August 2021. He states:
With regards to work, he is unable to lift heavy items, he cannot bend repetitiously over, he is unable to complete tasks overhead. He has difficulty turning his neck due to pain. He reported not being able to complete gardening at home. He has difficulty sitting down on the toilet and difficulty getting out of bed. He can only sit for maximum of 20 minutes at a time.
The symptoms are occurring most days of the week.
Mr Zaporowski gave evidence as to what he can and cannot do. Although this evidence relates to the present there is no indication that his functionality has changed over the 2 years since the qualification period. Mr Zaporowski stated that he manages his own self-care, including shopping and limited cooking. He occasionally drives to local shops e.g. if he is doing a bigger shop. He can sit in a car as a passenger e.g. when taken to doctor’s appointments. If lifting anything he needs to keep his back straight or such activity can aggravate the pain. He is unable to lift anything above head height. He reports he is unable to turn his head to either side. His evidence is consistent with the report of Dr Tan in 2021.
The evidence of Mr Zaporowski and the medical evidence from Dr Tan suggest that the appropriate impairment rating under Table 4 is Moderate = 10 points. This is based on his ability to sit in a car for short periods but he is unable to perform overhead activities and has difficulty moving his head to look in different directions.
Left knee conditions
Mr Zaporowski notes left knee osteoarthritis in his application for a DSP. There is an ultrasound report confirming the presence of left knee osteoarthritis and Baker’s cyst dated 2 April 2021 [T21, p 94]. This condition is confirmed in a number of medical certificates by Dr Tan [T24] and in his report dated 18 August 2021. The Tribunal finds, and the Secretary accepts, that the left knee conditions are fully diagnosed.
The next issue is whether the left knee conditions are fully treated and fully stabilised.
The Secretary contends that the left knee conditions were not fully treated or stabilised during the qualification period. The Secretary notes the ‘uncertain’ prognosis on Dr Tan’s medical certificates issued between 14 April 2021 and 28 December 2022 [T24] and contends that this indicates that the left knee conditions were not stabilised and that further review by a specialist, for example, an orthopaedic surgeon or rheumatologist was warranted.
The Secretary also notes the Applicant’s subsequent referral to a pain clinic, at Broadmeadows Hospital and Mr Zaporowski’s failure to attend for physiotherapy and contends that this also demonstrates that the knee conditions were not fully treated and stabilised.
In the medical certificates from Dr Tan – apparently completed every 3 months to satisfy Centrelink that he is unfit for work, he describes the knee conditions as ‘temporary exacerbation of a permanent condition’ and the prognosis as ‘uncertain’. He describes past and current treatment as pain medication and physiotherapy. This suggests that the treatment for the left knee condition is the same as the treatment for the spinal condition. Dr Tan does not indicate that a specialist review is needed and does not appear to have suggested a referral to a specialist such as an orthopaedic surgeon or rheumatologist.
According to Dr Tan both the spinal and knee conditions are likely to exist for the rest of his life, and given the history of the conditions it is likely that such treatment (specialist review, physiotherapy and/or pain management) would not result in any functional improvement. 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.
Based on the available evidence, the Tribunal finds that the left knee condition is fully treated and stabilised i.e. permanent and is more likely than not to persist for more than 2 years.
It is therefore necessary to consider the Impairment Tables. The appropriate Table is Table 3: Lower Limb Function. It provides as follows:
Points
Descriptors
0
There is no functional impact on activities requiring use of the lower limbs.
(1) The person can:
(a) walk without difficulty on a variety of different terrains and at varying speeds; and
(b) walk without difficulty around the home and community; and
(c) kneel or squat and rise back to a standing position without difficulty; and
(d) stand unaided for at least 10 minutes; and
(e) use stairs without difficulty.
5
There is a mild functional impact on activities using lower limbs.
(1) At least one of the following applies:
(a) the person has some difficulty walking to local facilities (e.g. shops or bus-stop); or
(b) the person has some difficulty walking around a shopping mall or supermarket without a rest; or
(c) the person has some difficulty climbing stairs; and
(2) At least one of the following applies:
(a) the person is unable to stand for more than 10 minutes;
(b) the person can mobilise effectively but needs to use a lower limb prosthesis or a walking stick.
10
There is a moderate functional impact on activities using lower limbs.
(1) At least one of the following applies:
(a) the person is unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities; or
(b) the person is unable to use stairs or steps without assistance; or
(c) the person is unable to stand for more than 5 minutes; and
(2) The person is able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket.
(3) This impairment rating level includes a person who can:
(a) move around independently using a wheelchair and can independently transfer to and from a wheelchair (e.g. can use a wheelchair accessible toilet independently); or
(b) move around independently using walking aids (e.g. quad stick, crutches or walking frame).
Note: The person may require additional time and effort to move around a workplace, may need to use disabled access entries, lifts and toilets, and may not be able to access some areas of a workplace or training facility.
20
There is a severe functional impact on activities using lower limbs.
(1) The person:
(a) is unable to do any of the following:
(i) walk around a shopping centre or supermarket without assistance;
(ii) walk from the carpark into a shopping centre or supermarket without assistance;
(iii) stand up from a sitting position without assistance; and
(b) requires assistance to use public transport.
(2) This impairment rating level includes a person who requires assistance to:
(a) move around in, or transfer to and from a wheelchair (e.g. the person needs personal care assistance to use a toilet); or
(b) move around using walking aids (e.g. a quad stick, crutches or walking frame), that is, the person needs assistance from another person to walk on some surfaces and could not move independently around a workplace or training facility, even when using a walking aid.
30
There is an extreme functional impact on activities using lower limbs.
(1) The person is unable to mobilise independently.
Mr Zaporowski reported that he experienced pain in his left knee. In AAT1 he reported if he moves from sitting to standing he can hear a crack or crackle and then feels pain. Resting relieves the pain. He gave evidence that he is able to slowly walk 300 metres to the shops and to public transport which he uses as needed [T2, p 13]. He was unsure for how long he could stand; avoided stairs; and did not use walking aids.
Mr Zaporowski’s evidence is consistent with the description provided by Dr Tan in the medical certificates before and after the qualification period i.e. ‘pain and instability. Unable to walk long distances. At risk of falls’.
The evidence of Mr Zaporowski and the medical evidence from Dr Tan suggest that the appropriate impairment rating is Moderate = 10 points. This is based on his ability to use public transport or a motor vehicle and walk around in a shopping centre or supermarket but that he is unable to walk far outside his home and needs to drive or get other transport to local shops or community facilities.
Right wrist condition
Mr Zaporowski did not list any condition relating to his right wrist in his application for a DSP. Dr Tan documents right wrist ulnar neuropathy and carpal tunnel syndrome in his report from 18 August 2021. The condition was apparently diagnosed in 2018 with a nerve conduction study [T21].
Dr Tan does not provide any information as to treatment for the conditions and what if any functional impairment is associated with these conditions.
Mr Zaporowski gave evidence that he cannot make a fist and that he has ongoing pain in his right wrist. Although he can manage most daily activities, he has difficulty picking up bulky, heavy or small objects. Mr Zaporowski noted that he had discussed with his GP the possibility of having an operation to treat the carpal tunnel condition. He described it as a small operation.
The Tribunal has considered the available medical evidence and Mr Zaporowski’s oral
evidence and considers that Mr Zaporowski has been fully diagnosed with a right wrist condition. However, the prospect of an operation on his right wrist means that at the time of his application the condition was not fully treated or stabilised. No assessment may be made under the Impairment Tables.
Based on the findings of the Tribunal relating to Mr Zaporowski’s spinal condition and left knee condition, there is a total of 20 points under the Impairment Tables. Mr Zaporowski satisfies the requirements of s 94(1)(b) of the Act.
(iv)Does Mr Zaporowski also have a ‘continuing inability to work’?
Under s 94(1)(c) Mr Zaporowski must have a ‘continuing inability to work’ because of the impairments. Under s 94(2), the test differs depending on whether the person has a ‘severe impairment’ or not. Under s 94(3B), a ‘severe impairment’ means an impairment of 20 points or more under a single Impairment Table. Mr Zaporowski does not have such a rating, therefore he must satisfy each of the requirements in s 94(2), namely:
·He must has actively participated in a POS (s 94(2)(aa)); and
·The impairment must prevent him from doing any work independently of a POS whether skilled or unskilled within the next 2 years (s 94(2)(a)); and
·The impairment must also prevent him undertaking a training activity during the next 2 years (s 94(2)(b)).
As noted above, ‘work’ means work that is of at least 15 hours per week at or above the relevant minimum wage and that exists in Australia, even if not within the person’s locally accessible labour market (s 94(5)).
The first requirement under s 94(1)(c) is that Mr Zaporowski must have actively participated in a POS. This requires him to satisfy the requirements set out in a legislative instrument, the Social Security (Active Participation for Disability Support Pension) Determination 2014 (made under s 94(3C)). The Determination specifies that a person will have actively participated in a POS if they have participated in a POS for a period of 18 months within the relevant period (s 7(2) of the Determination) i.e. the 36 months prior to the claim (s 5(1)(a) definition of ‘relevant period’).
As Mr Zaporowski lodged his claim for DSP on 17 June 2021, he must have actively participated in a program of support for at least 18 months in the 36 months ending immediately before the day on which he lodged his claim for DSP. In the present case, this is the period from 16 June 2018 to 16 June 2021 (‘the relevant POS period’).
Departmental records confirm that, during the relevant POS period, Mr Zapaorowski participated in a program of support for 867 days [T25], which is above the required amount. Therefore, Mr Zaporowski meets the requirements of paragraph 94(2)(aa) of the Act.
In relation to the continuing inability to work under s 94(2)(a) and (b), the Tribunal must also be satisfied that Mr Zaporowski’s impairments prevent him from doing any work, or training activity independently of a POS whether skilled or unskilled within the next two years. Dr Tan’s report dated 18 August 2021, notes that ‘the conditions affecting his spine… are most likely to deteriorate over time given the degenerative nature of the conditions. This will be permanent and will remain with him for the remainder of his lifetime’. In relation to work, Dr Tan notes that ‘he is unable to lift heavy items, he cannot bend repetitiously over, he is unable to complete tasks over head. He has difficulty turning his neck due to pain [and] [h]e can only sit for maximum of 20 minutes at a time. The symptoms are occurring most days of the week’. This assessment, and the ongoing medical certificates issued by Dr Tan every three months indicate that in his view Mr Zaporowski is unable to undertake any work and that this is likely to continue for the foreseeable future with little prospect of improvement. The Tribunal finds that Mr Zaporowski’s impairments prevent him from doing any work (or training) of at least 15 hours per week for the next two years. Mr Zaporowski has a continuing inability to work as required by s 94(1)(c) of the Act.
CONCLUSION
The Tribunal finds that Mr Zaporowski did satisfy ss 94(1)(a), (b) and (c) of the Act during the relevant period. As a result, Mr Zaporowski did meet the qualification requirements for DSP at the date of claim on 17 June 2021.
DECISION
The Tribunal sets aside the decision of the Social Services and Child Support Division
of the Administrative Appeals Tribunal dated 10 January 2023 and substitutes a decision that the Applicant met the eligibility requirements of section 94 of the Social Security Act1991 (Cth) and was qualified for the Disability Support Pension at the date of his claim on 17 June 2021.
I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of Senior Member O’Connell
.................[sgd].......................................................
Associate
Dated: 5 December 2023
Date(s) of hearing: 23 November 2023 Date final submissions received: 12 October 2023 Applicant: Self-represented Advocate for the Respondent Hugo Rogers Solicitors for the Respondent: Sparke Helmore Lawyers
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