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

[2023] AATA 3141

Zych and Secretary, Department of Social Services (Social services second review) [2023] AATA 3141 (5 October 2023)

Division:GENERAL DIVISION

File Number(s):      2022/10573

Re:Stanislaw Zych

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Emeritus Professor P A Fairall, Senior Member

Date:5 October 2023

Place:Sydney

The decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal made on 11 November 2022 is affirmed.

........[SGD]................................................................

Emeritus Professor P A Fairall, Senior Member

Catchwords

SOCIAL SECURITY – disability support pension – qualification – whether applicant has impairment rating of 20 points under the Impairment Tables – where applicant claimed functional impairment – where applicant claimed physical and mental health conditions – decision under review affirmed

Legislation

Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)

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

Cases

Harvey and Secretary, Department of Social Services (Social services second review) [2023] AATA 758 (14 April 2023)
Mansour and Secretary, Department of Social Services (Social services second review) [2022] AATA 4438 (22 December 2022)

REASONS FOR DECISION

Emeritus Professor P A Fairall, Senior Member

5 October 2023

1. On 20 April 2022, Mr Stanislaw Zych (the Applicant), lodged a claim for Disability Support Pension (DSP), listing various physical conditions.[1]  On 25 July 2022, an Authorised Review officer (ARO) of Services Australia (Centrelink) affirmed a decision to refuse his claim.[2]  On 11 November 2022, the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) affirmed the decision of the ARO.[3] On 21 December 2022, he applied to the Tribunal for second review of the AAT1 decision.[4] The matter was heard on 6 September 2023. He was self-represented. The Respondent was represented by Ms S. Navaratnam.

   [1] T15, 163.

   [2] T21, 217.

   [3] T2, 4.

   [4] T1, 1.

2. Centrelink rejected the claim on the basis that he did not satisfy the eligibility criteria set out in section 94 of the Social Security Act 1991 (Cth) (the Act) within the relevant qualification period. The relevant period for qualification is determined by section 42 and Schedule 2 of the Social Security (Administration) Act 1999 (Cth). In the Applicant’s case, the requirements of subsection 94(1) must be met within the 13-week period from 20 April 2022 to 20 July 2022.

3. Subsection 94(1) provides that a person must have a physical, intellectual or psychiatric impairment or impairments, which rate 20 or more points according to the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Impairment Tables), and a continuing inability to work as defined in the Act.

4. In his claim for DSP, the Applicant did not list any psychiatric conditions, merely several physical impairments.[5] However, the Health Summary Report provided by his general practitioner Dr E. Annamuttu (dated 20 April 2022) also referred to anxiety and depression for which Alprazolam (0.25mg) and Temazepam (10 mg) were prescribed.[6]

   [5] Osteoarthritis of the spine, knee and foot, enlarged prostrate, inguinal hernia (pending surgery), a shoulder injury (supraspinatus tear), vertigo and diverticular disease: T15, 163, 188. See also T16, 196.

   [6] Dr E. Annamuttu, Health Summary Report: T18, 207.

5. The Centrelink assessor examined the medical certificates and summaries provided by two of his doctors and found:

   For the conditions to be accurately assessed as fully treated and stabilised, more detailed medical evidence from the customer's treating health professional is required, outlining current treatment, any future/planned treatment, prognosis, and up-to-date specific functional impact information/symptom severity information. Evidence from any treating specialists/allied health professionals would also be beneficial. In addition, for the mental health condition to be considered fully diagnosed, it would require confirmation of a diagnosis by a Psychiatrist, or a THP with corroborating evidence from a Clinical Psychologist. As such, the claim cannot progress to JCA at this stage.[7]

   [7] Dr G. Al-Shelh and Dr E. Annamuttu; T17, 204.

6. On 26 August 2022, following the ARO decision of 25 July 2022, the Applicant attended a medical examination with consultant physician cardiologist Dr Shafransky who administered a stress echocardiogram. He performed well with no sign of ischaemic heart disease. Dr Shafransky identified that he may have atrial fibrillation (AF).

7. On 19 September 2022, Dr R. Abdulrahim reported that he had been diagnosed with AF, a condition that increased the risk of a stroke and for which he was taking blood thinners.[8]

   [8] T24, 225.

8. The Tribunal must decide whether, contrary to the decision of the AAT1, the Applicant satisfies the DSP requirements in subsection 94(1) of the Act, as set out above.

9. The Applicant gave evidence under affirmation. He said that he lived in a flat on the first floor of an apartment block. He was able to climb the stairs and drive his car to and from the shopping centre. He had various ailments and had consulted doctors for some of them.

   PHYSICAL IMPAIRMENTS

10. As mentioned above, Dr Shafransky identified that the Applicant may have AF. Dr Shafransky recommended taking aspirin 100mg as a precautionary measure. The Applicant did not accept that he required any medication, and merely promised to improve his physical fitness by regular exercise and losing weight.[9]

    [9] T23, 223.

11. According to Dr Shafransky’s report, the Applicant did not accept this diagnosis because “he is very fit and he has no health issues since he can do multiple pull-ups”.[10] He therefore “[did] not believe in it”. This record was made a mere five weeks after the end of the qualification period. It is consistent with the fact that he made no claim for AF in his original application.

    [10] T23, 223.

12. At the hearing, the Applicant was asked whether he could still do multiple pull-ups, as he claimed to be able to do during the qualification period. He said that he was not sure because he had stopped doing it. He said that he “just said it because I was just joking – I didn’t realise I had a heart problem”. Despite his earlier scepticism of Dr Shafransky’s diagnosis, he pressed the claim that he had a chronic heart condition.

13. In the AAT1, the learned member noted that the date of diagnosis of AF was 26 August 2022, after the qualification period.[11] It was not therefore considered relevant to the review. With respect, the issue is whether the contents of the medical report bear upon the Applicant’s medical condition during the qualification period. For example, a diagnosis of long COVID made after the qualification period could explain lethargy and incapacity during the period.

    [11] Dr Shafransky, Cardiologist, medical report dated 26 August 2022.

14. Unfortunately, the Tribunal did not receive any medical evidence to allow a finding to be made that AF diagnosed in August 2022 was likely to have been present during the qualification period ending one month earlier.[12] In any event, I do not think it necessary to resolve this issue, for there is nothing to suggest that the Applicant experienced any functional impairment because of this heart condition.

    [12] There is a letter dated 19 September 2022 from Dr Abdulrahim, referring to the earlier diagnosis of AF, and referring to two specialist reviews with letters attached: 24, 225.

15. The AAT1 described the Applicant’s situation as follows.

    Mr Zych lives alone. He can care for himself in all ways. He can drive and go shopping. He can walk for about 1km due to shortness of breath…[13]

    [13] AAT1, 6 [11].

16. Under cross-examination, he conceded that this was an accurate description of his condition and disposition.

17. Under Table 1 – Functions requiring Physical Exertion or Stamina, there is no functional impact if the person:

    (a)is able to undertake exercise appropriate to their age for at least 30 minutes at a time; and

    (b)has no difficulty completing physically active tasks around their home and community; and

    (c)can undertake personal care activities such as showering or bathing and these activities do not prevent the person from undertaking a full range of activities in the same day.

18. I did not understand the Applicant to state that he had difficulties undertaking age-appropriate exercise for at least 30 minutes. He was not house-bound and was able to access his first floor flat by climbing the stairs. He would prefer to live on the ground floor, but it was manageable living on the first.

19. There is therefore no basis for awarding any impairment points under Table 1.

    Shoulder condition

20. The Applicant also gave evidence that he was suffering from a supraspinatus tendon partial tear with associated tendonitis on the back of the shoulder, with onset in 2008.[14] This condition was diagnosed by Dr Robertson in 2013.[15] A functional impairment rating of 10 points was awarded in the Job Capacity Assessment Report dated 1 November 2013.[16] It is listed by Dr Annamuttu in the health summary sheet dated 20 April 2022,[17] and confirmed by an ultrasound dated 25 February 2023.

    [14] T6, 126.

    [15] See medical report dated 3 September 2013: T4, 112, 121.

    [16] T6, 127.

    [17] T18, 207.

21. I find that this condition is fully diagnosed, although there is no medical evidence on which to find that it is fully treated or stabilised. It therefore cannot be regarded as a permanent condition.

22. Moreover, the Applicant’s claim to Dr Shafransky on 26 August 2022 that he could do multiple pull-ups is inconsistent with having any significant upper limb impairment. None of the medical reports provide sufficient justification for assigning any impairment rating for his shoulder condition.

23. The evidence given by the Applicant suggests that whatever functional impairment he experienced at an earlier time by reason of his shoulder condition, it was no longer of consequence in the qualification period.

    Other physical conditions

24. The Applicant also claimed to have osteoarthritis of the spine, knee and foot, an enlarged prostate, an inguinal hernia, vertigo and diverticular disease. In affirming the original Centrelink decision, the ARO stated:

    Your conditions of ankle injury, osteoarthritis of the spine, knee and foot, vertigo, enlarged prostate, inguinal hernia, diverticulosis and shoulder injury – supraspinatus tear tendon are not fully diagnosed, treated and stabilised. There is a lack of evidence confirming diagnoses for each of the conditions from medical specialists. Furthermore, there is a lack of evidence to confirm that all reasonable treatment has been explored, including specialist involvement. This means these conditions are not permanent and there are no impairment ratings.[18]

    [18] T21, 219.

25. The AAT1 also found a lack of evidence to support findings about these conditions. The Applicant conceded that while he had symptoms for these conditions, none were fully diagnosed, treated and stabilised, as required by the Act.

26. I am satisfied that the Applicant’s osteoarthritis of the spine, knee and foot, enlarged prostate and inguinal hernia were not fully diagnosed, treated and stabilised during the qualification period. There is no evidence from a relevant treating specialist in relation to any of these medical conditions.

27. Accordingly, there is no basis for awarding any impairment points for physical impairment under the relevant Tables.

    Claimed psychiatric impairments

28. The Applicant also claimed to be impaired by anxiety and depression.

    Anxiety

29. His anxiety appears to be of long standing. I note the following:

    ·Report by Dr Saker, psychiatrist, dated 20 August 2013 diagnosing anxiety and prescribing Moclobemide and Diazepam and recommending cognitive behavioural therapy.[19]

    ·Report dated 13 July 2015 by Dr Al-Shelh, General Practitioner, Liverpool Health Care Medical Centre, listing his medication as Muralex (30 mg), taken for anxiety.[20]

    ·Centrelink Medical Certificates dated 21 November 2017 and 19 December 2017 signed by Dr Al-Shelh, listing anxiety, insomnia, distress, and emotional difficulty coping.[21]

    ·Health Summary Report dated 20 April 2022 by Dr Annamuttu, General Practitioner, listing anxiety and depression, and noting the medications Alprazolam and Temaze.[22]

    [19] T7, 133-136 (duplicated at T4, 117).

    [20] T9, 146, 147.

    [21] T10, 150, 152.

    [22] T18, 207.

30. I am satisfied that the Applicant suffers from anxiety. However, no medical evidence has been provided to the Tribunal to support a finding that this condition is fully treated or stabilised.

    Depression

31. There is evidence that the Applicant has at various times suffered from depression. Some ten years ago, his General Practitioner, Dr Robertson, provided a letter dated 22 November 2013 in support of his application for DSP. Dr Robertson wrote:

    We write this letter to strongly support Mr Stanislaw Zych’s application for a Disability Support Pension. Stan has been attending this practice for the past 7 months. He had an injury at work over 5 years ago, slipping and hurting his right shoulder. Since that time he has developed crippling anxiety, anger management problems, a speech impediment and rotator cuff (shoulder) pain. Despite seeking and attending various medical and psychological appointments over a long period of time the complexity of his medical conditions has proved challenging to treat. He is currently homeless but paying rent to stay in a local residents garage.

    Earlier this year we referred him to psychiatrist Dr Stuart Saker for review who prescribed the medications Moclobemide and Diazepam and stated that if a course of cognitive behavioural therapy did not assist Stan to recover than he would support application for a disability support pension. Unfortunately despite continued treatment this course of action has failed to yield any significant improvement and we now ask that you would expediate his application for disability support pension.

32. The letter is co-signed by a Nurse Practitioner in Psychiatry.

33. The Impairment Table relating to mental health function[23] provides that a diagnosis 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 by a psychiatrist).[24] There must be corroborating evidence of the person’s impairment, such as a report from the person’s treating doctor, or supporting letters, reports or assessments relating to the person’s mental health or psychiatric illness.

    [23] See Table 5 - Mental Health Function.

    [24] T3, 52.

34. I am therefore unable to find that his depression has been fully diagnosed as required under the Act.

35. I am satisfied that there is no basis for awarding any impairment points for psychiatric impairment under the relevant Impairment Table.

36. Finally, I turn to the question of his continuing inability to work. An Employment Assessment was undertaken on 21 February 2022. The assessor considered the Applicant to have a baseline work capacity of 8 to 14 hours per week and a capacity for work of 15 to 22 hours per week within two years with intervention.[25]

    The claimant reported that he relocated to Australia from Poland in 1984. He reported that he completed high school and a four year trade as a fitter and turner, with associated work experience in this field. The claimant stated that most positions had only been for a period of around 6 months at a time before the job ended or he left that employment. Last employment was noted for approximately 3 months casual work in an engineering position in late 2017. The claimant reported that he last worked in approximately December 2019. The claimant reported that he believes he is unable to attain employment due to discrimination related to his age and nationality.

    [25] T14, 160.

37. I agree with the Respondent that the Applicant has failed to provide any corroborating medical evidence to show that his physical or mental impairments are sufficient to prevent him from doing any work or undertaking any training activity independently of a program of support within the next two years.

    CONCLUSION

38. It was clear to the Tribunal that the Applicant lacked familiarity with the eligibility requirements for DSP. He was not acquainted with the need to identify the degree of functional impairment under the Impairment Tables. No criticism of the Applicant is intended. It appears that when he received an unfavourable result in the AAT1, he simply exercised his right to apply for a second-tier review. He was convinced that the rejection was based on ageism or his nationality.

39. I am satisfied that the Applicant does not satisfy any of the requirements specified under subsection 94(1) of the Act.

    DECISION

40. The decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal made on 11 November 2022 is affirmed.

I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

........[SGD]................................................................

Associate

Dated: 5 October 2023

Date(s) of hearing:	6 September 2023
Applicant:	In person
Solicitors for the Respondent:	Ms S. Navaratnam, Services Australia