Zubac and Secretary, Department of Social Services (Social services second review)
[2016] AATA 134
•7 March 2016
Zubac and Secretary, Department of Social Services (Social services second review) [2016] AATA 134 (7 March 2016)
Division
GENERAL DIVISION
File Number(s)
2015/3544
Re
Slavko Zubac
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Dr I Alexander, Member
Date 7 March 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 – “severe impairment” during claim period – lumbar spine condition – knee condition – chronic post-traumatic stress disorder – alcoholism – decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth)
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
March 2016
Mr Zubac is currently 59 years old and had previously been in receipt of Disability Support Pension (DSP) between 1996 and 2001. In October 2001, Mr Zubac’s DSP was cancelled on the basis of an impairment rating of less than 20 points.
In 2007, as a result of a workplace injury, Mr Zubac started receiving worker’s compensation payments which continued until 2014 when the payments were cancelled.
On 16 October 2014, Mr Zubac lodged a claim for DSP on the basis that he suffered several medical conditions which were having an impact on his ability to function.
Mr Zubac’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 (Cth) (the Act) because his impairment was not 20 points or more under the Impairment Tables.
In a decision dated 17 June 2015, the former Social Security Appeals Tribunal (SSAT) found that Mr Zubac had a total impairment rating of 15 points, with 5 points for lumbar spinal function, 5 points for lower limb function and 5 points for mental health function. Therefore Mr Zubac did not satisfy the requirements of s 94(1)(b) of the Act and did not qualify for DSP.
In these proceedings, Mr Zubac seeks review of the SSAT decision.
At the hearing Mr Zubac was self-represented and assisted by an interpreter in the Serbian language.
ISSUES
In order to qualify for DSP, Mr Zubac 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 (Cth), that is, between 16 October 2014 and 15 January 2015 (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 Zubac 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) states 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 states that “[s]elf-report of symptoms alone is insufficient” and “[t]here must be corroborating evidence of the person’s impairment”.
The medical conditions suffered by Mr Zubac include a lumbar spine condition, a mental health condition (PTSD/alcoholism), a lower limb condition (left knee), hearing loss and hypertension.
Mr Zubac claims that he is severely impaired because of his medical conditions which he told the Tribunal “are getting much worse every day”.
The Respondent contends that, during the claim period, Mr Zubac had a total impairment rating of 10 points, so accordingly he did not satisfy section 94(1)(b) of the Act.
The Respondent also contends that even if Mr Zubac, during the claim period, was able to satisfy section 94(1)(b) he did 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. Furthermore, Mr Zubac had not actively participated in a program of support (POS) as required by s 94(2)(aa) of the Act.
There is no dispute that prior to the date of claim Mr Zubac had not actively participated in a POS.
Accordingly, the definitive issues for the Tribunal to consider is whether during the claim period, Mr Zubac’s impairment was 20 points or more under the Impairment Tables, and, if so, whether he had a “severe impairment” as defined in s 94(3B) of the Act, that is 20 points or more under a single Impairment Table.
Lumbar Spine Condition
In a consultation report dated 24 February 2014, Dr Guirgis, orthopaedic surgeon, notes that there is MRI evidence of multilevel spine abnormalities including lumbar disc protrusions and states that “[s]urgical treatment will not dramatically alter the current clinical presentation due to the presence of chronic pain syndrome”, but provides no details in respect of functional impairment.
Dr Guirgis provides a subsequent report dated 1 September 2014, which is essentially the same as his earlier report, and notes “[i]ncreased symptoms in this cold weather”, but provides no other details.
In a Centrelink Medical Report dated 23 October 2014, Dr Todorovic, GP, notes current symptoms as “[c]ontinuing pain in his middle and lower back and both knees, worse with movements” and functional impairment as “[d]ifficulties bending, lifting, walking long distances, squatting, kneeling, climbing, standing or sitting for long periods”.
In a Job Capacity Assessment (JCA) report submitted on 26 November 2014, the assessor notes inter alia the following:
“Client reported contact [sic] pain in the back that varies in severity and is worse with changes in weather…Functional Impact: difficulties bending, lifting, walking long distances, standing or sitting for long period. Client reported he is able to sit for up to 30 minutes at a time and when the pain is severe he is unable to walk. He reported he would be able to bend to pick up a light object from knee level although if in severe pain he would not be able to complete the task. He is able to complete overhead activities if holding onto something and able to remain in a car as a passenger for 10-20 minutes or drive for 15 minutes on a good day… He noted he needs to have someone with him when he takes public transport. Client reported he is independent in all self- care activities, his daughter assists him with cooking and cleaning and on a good day he is able to complete small shopping trips”.
The SSAT notes inter alia the following:
“The pain is variable. Sometimes he cannot get out of bed; sometimes he freezes and cannot move at all. He cannot drive. A friend waits for him and they walk together if he has to go on a bus or train…Dr Todorovic stated Mr Zubac has difficulties with bending an lifting….Mr Zubac said he can carry one or two litre cartons and pick up objects from a desk or coffee table……Dr Todorovic said at the time of the claim Mr Zubac had difficulty standing or sitting for long periods and he was able to sit for 30 minutes….’’
In a letter dated 19 September 2015, Dr Todorovic notes inter alia the following:
Occasionally Mr Zubac uses a walking stick and occasionally crutches to help him walking during flare ups of his back pain…In regard to his spinal function he is unable to bend forward and pick up a light object placed at knee height on most days. He often has difficulties getting up out of a chair”.
Mental Health Condition
In a letter dated 29 May 2006, Dr Kecmanovic, psychiatrist, states that Mr Zubac has been under his care for eleven years and records the diagnoses as “Chronic Post Traumatic Disorder and Alcoholism”.
In respect of treatment, Dr Kecmanovic notes that he has provided counselling and that various antidepressant have been trialled with little success. He goes on to say that “[g]iven the time that elapsed since the beginning of Mr Zubac’s mental symptoms, as well as his poor response to the applied therapy I am of the opinion that Mr Zubac’s disturbed mental condition is permanent”.
Mr Zubac told the Tribunal that he continued to see Dr Kecmanovic on a regular basis until he died in mid-2014. He was referred to a new psychiatrist, Dr Kuljic, who saw him on the first occasion in February 2015 and now sees him regularly every three months.
In his report of 23 October 2014 Dr Todorovic lists “Chronic Post traumatic Stress Disorder and Alcoholism” as a condition that causes significant impact on ability to function. He notes current treatment as “Amitriptyline 75 mg daily” and describes impact on ability to function as “decreased endurance and concentration” and “difficulties communicating”.
In a letter dated 6 March 2015 Dr Kuljic states inter alia the following:
“I assessed Mr Zubac at Blacktown Family medical Centre 28/02/201……..Mental state…..Friendly attitude, easy to engage in the interview and establish rapport. Good eye contact. Speech – normal rate and volume. Described mood as “good/stabile”. Affect appeared euthymic, in full range, reactive and congruent with the thought content…Cognitive functions did not appear impaired on clinical assessment…..He reported ongoing symptoms of war related Chronic Post-Traumatic Stress Disorder. He also reported ongoing Alcohol Abuse/ Dependence”.
In his letter of 19 September 2015, Dr Todorovic notes inter alia the following:
“In regard to his psychological symptoms, he suffers episodic emotional outbursts ….he has problems coping with stressful situations and he drinks excessively, ‘self- medicating’ for his chronic PTSD. He lives on his own and his daughters and occasionally his friend’s wives help him with shopping, cooking and cleaning. He is bound to his flat most of the time unless a friend comes to pick him up and give him a lift to u [sic] pub for a drink”.
I note that in the JCA report of 26 November 2014 the assessor states that “[t]he client reported he previously consumed a lot of alcohol although he has ceased drinking alcohol due to new medication and their interaction with alcohol”.
At the hearing, when asked about his alcohol intake and how he sourced his alcohol, Mr Zubac became somewhat evasive and did not provide a clear answer.
Knee Condition
In his letter of 24 February 2014, Dr Guirgis notes symptoms of “chondromalacia patellae” in the left knee and MRI evidence of several abnormalities in the right knee, but provides no other clinical details and no assessment of functional impact.
In his medical report of 23 October 2014, Dr Todorovic lists “right medial meniscal tear” diagnosed in December 2007 as a medical condition that has the most significant functional impact. The description of impact on Mr Zubac’s ability to function is the same description as noted above in respect of the lumbar spine condition with no qualification as to which claimed impairment relates to which condition.
In the JCA report dated 26 November 2014, the assessor states inter alia the following:
“Client reported pain in both knees although severity varies…tolerances vary dependent on the day, some days he is able to walk for up to 10 minutes other days she[sic] does not leave the home. He needs to lean on something when standing, he is unable to squat when bad. He is able to negotiate stairs holding on the rail with some difficulty (he lives on the second floor) and occasionally uses a walking stick as needed”.
In his letter of 19 September 2015, Dr Todorovic states that in regard to Mr Zubac’s lower limbs “he has pain in his both legs making it difficult to walk around a shopping mall or a supermarket without rest on most days. He has difficulties climbing stairs and standing for more than 10 minutes on most days”.
Hearing loss
In a letter dated 10 April 2014, Dr Stylis, ENT surgeon, confirms that Mr Zubac has “significant hearing loss with a total binaural hearing impairment over fifty percent” and that he would benefit from the use of hearing aids.
At the hearing Mr Zubac indicated that he was wearing hearing aids in each ear and had no difficulty with the conversation in the hearing room.
I accept that Mr Zubac’s hearing impairment is permanent for the purposes of the Impairment Determination but as there is no corroborative evidence before the Tribunal of the hearing impairment with his hearing aids in place, a rating under Impairment Table 11 cannot be applied.
Hypertension
In his medical report of 23 October 2014, Dr Todorovic lists hypertension as a medical condition that is generally well managed and causes minimal or limited impact and notes current treatment as lercanidipine 10 mg, candesartan 16 mg and hydrochlorothiazide 12.5 mg.
I accept that Mr Zubac’s hypertension is permanent for the purposes of the Impairment Determination, but as there is no corroborative evidence that he suffers any impairment because of this condition, the appropriate rating under the Impairment Tables is nil points.
CONSIDERATION
It clear from the evidence that Mr Zubac suffers medical conditions that that have an impact on activities involving spinal function, lower limb function and mental health function.
I accept that, during the claim period, all his medical conditions were permanent for the purposes of the Impairment Determination.
What is not so clear is the level of impairment suffered by Mr Zubac as a result of these medical conditions during the claim period.
The medical evidence can best be described as incomplete and somewhat limited. It does not, in my view, provide a satisfactory assessment of Mr Zubac’s functional impairment during the claim period and is largely a record of his self-report of symptoms.
The details of impairment described by Dr Todorovic in his letter of 19 September 2015 appear to suggest a degree of impairment that is more severe than the self-reported impairment as noted in the JCA report in November 2014. This may reflect a deterioration Mr Zubac’s medical conditions or some retrospective embellishment.
Furthermore, the evidence suggests that the medical conditions cause common or combined impairment which is particularly evident with the activities involving spinal function and lower limb function, but also with some activities involving mental health function.
The difficulty is that paragraph 10(5) of the Impairment Determination provides that “Where two or more conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.
Notwithstanding the noted difficulties in this matter, after due consideration of all the evidence before the Tribunal and the descriptors in the relevant Impairment Tables, I am satisfied as follows, that:
·During the claim period, as a result of Mr Zubac’s lumbar spine condition, there was a mild to moderate functional impact on activities involving spinal function.
·During the claim period, as a result of Mr Zubac’s knee conditions, there was a mild functional impact on activities using lower limbs.
·During the claim period, as result of Mr Zubac’s “chronic PTSD/alcoholism”, there was a mild functional impact on activities involving mental health function.
Conclusion
With more complete corroborative evidence it is possible that, during the claim period, Mr Zubac did satisfy section 94(1)(b) of the Act.
I am satisfied, however, that the evidence before the Tribunal does not support a conclusion that, during the claim period, Mr Zubac suffered a “severe impairment” as a result of any of his permanent medical conditions.
This means that during the claim period Mr Zubac 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 could not satisfy s 94(1)(c) of the Act and did not qualify for DSP.
DECISION
The decision under review is affirmed.
I certify that the preceding 54 (fifty -four) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member ..............................[sgd]..........................................
Associate
Dated 7 March 2016
Date(s) of hearing 16 February 2016 Applicant In person Solicitors for the Respondent Dr Stephen Thompson
Key Legal Topics
Areas of Law
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Social Security Law
Legal Concepts
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Impairment Ratings
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Continuing Inability to Work
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Severe Impairment
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Social Security – disability support pension
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