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

[2022] AATA 1237

Blazeski and Secretary, Department of Social Services (Social services second review) [2022] AATA 1237 (17 May 2022)

Division:GENERAL DIVISION

File Number(s):      2021/0078

Re:Ivan Blazeski

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Damien Cremean, Senior Member

Date:17 May 2022

Place:Melbourne

The decision under review is affirmed.

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

Dr Damien Cremean, Senior Member

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – several conditions including cardiomyopathy and chronic lower back pain – whether fully diagnosed, treated and stabilised – number of points to be assigned under Tables – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for DisabilitySupport Pension) Determination 2011 (Cth)

REASONS FOR DECISION

Dr Damien Cremean, Senior Member

17 May 2022

INTRODUCTION

1. The Applicant, Mr Ivan Blazeski, seeks review of a decision of the Social Services & Child Support Division of this Tribunal (Tier 1) given on 9 December 2020. That decision affirmed a decision of the Respondent to reject the Applicant’s claim for Disability Support Pension (”DSP”) under the Social Security Act 1991 (Cth) (“Act”) made on 3 November 2019, which was affirmed by an Authorised Review Officer on 20 August 2020.

2. A hearing in this matter was conducted by audio link on 29 September 2021.

3. The Applicant was self-represented and gave affirmed evidence via interpreter. The Respondent was represented by Ms Raveendiran, lawyer, of Services Australia.

4. No witnesses were called by either party.

   LEGISLATION 

5. DSP is governed by s 94 of the Act which, in s 94(1), materially reads as follows:

   Qualification for disability support pension

   (1)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.     one of the following applies:

   i.the person has a continuing inability to work;

   ii.the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and …

   ISSUES AND CONTENTIONS

6. The Applicant contends that the decision under review should be set aside.

7. He argues that his case falls within s 94 of the Act and that therefore he is entitled to receive DSP.

8. He elaborated on his argument in a separate submission lodged with the Tribunal and dated 8 October 2021.

9. The Respondent, however, maintains that the decision under review should be affirmed and that the Applicant has no entitlement to DSP.

10. In particular, it is in issue whether the Applicant meets the requirement in s 94(1)(b) of the Act and, if he does, whether he meets the requirement in s 94(1)(c) of the Act.

    CONSIDERATION

    Section 94(1)(a)

11. The qualification period under the Act in this matter is from 3 November 2019 to 2 February 2020.

12. As regards s 94(1)(a) of the Act, the Respondent concedes that this is satisfied by the Applicant in respect of medical conditions he suffers from. I am of the view that this is rightly conceded. The Applicant’s claimed conditions include cardiomyopathy, hypertension and chronic lower back pain and I accept that he does indeed suffer from these conditions. There has also been a claim made in respect of loss of hearing.

13. I am satisfied that the concessions made by the Respondent are justified and that the Applicant has an impairment for the purposes of s 94(1)(a) of the Act.

    Section 94(1)(b)

14. The issue under s 94(1)(b) of the Act is whether the Applicant’s impairment is of 20 points or more under the Impairment Tables (“Tables”). The Tables are set out in in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (“Determination”).

15. On the available evidence, I consider Table 1 addresses the medically documented impairments associated with the conditions of cardiomyopathy, hypertension and chronic lower back pain.

16. In that regard, I point out that the Applicant has not participated in a program of support as mentioned in the Act in the three years before he brought his claim so that if he is to satisfy s 94(1)(b) of the Act, one or more of his medical conditions must have a serious functional impact on his life under at least one of the Tables and that must be evident during the qualification period.

17. I have no doubt that the Applicant’s medical conditions do have a profound effect on the way he conducts his life and are painful and incapacitating.

18. Suffering painful and incapacitating conditions, however, is not enough in itself to meet the requirement in s 94(1)(b) of the Act. I made an effort to explain this to the Applicant in the hearing. The requirement in s 94(1)(b) of the Act is quite specific in what it sets out must be established.

    Cardiac condition

19. It is conceded by the Respondent that the Applicant’s cardiac condition is fully diagnosed, treated and stabilised for the purposes of the Tables. I regard this as including his hypertension.

20. I agree with this concession, but it is also a concession that his condition only warrants a finding of 10 impairment points under the Tables.

21. I agree also with that concession — that the Applicant’s condition does not warrant assigning more than 10 impairment points under the Tables.

22. In that regard, I too rely upon the written reports of Associate Professor David Clark dated 16 July 2019, 11 June 2020 and 18 March 2021 — despite none of them being prepared during the qualification period. But I regard the later ones as broadly relating to that period.

23. Associate Professor Clark’s report of 18 March 2021 is particularly decisive in stating that only 10 impairment points are warranted.

24. Nothing in the Applicant’s evidence satisfied me I should take a different view. Indeed, he admitted that around the time of his claim he was going for two walks a day of about 10 to 15 minutes each, admittedly slowly, but sometimes even on his own. He said he walks around the supermarket with his wife when shopping, although using a shopping trolley.

25. Nothing in the Applicant’s separate submissions altered my view either.

26. It may well be true that the Applicant’s cardiac condition (producing shortness of breath and fatigue), together with other ailments, has led to a decline in his ability and mobility. I accept that this is possibly right, but I make no finding to that effect. None of the criteria for severe functional impairment set out in Table 1 of the Determination are satisfied.

27. There is, moreover, the issue arising of self-reporting and I am unable to regard an impairment rating of more than 10 points as corroborated by the material.

28. I regard and find an assignment of 10 points as one corroborated by the evidence on file of the opinion of Associate Professor Clark. I prefer Associate Professor Clark’s view as a specialist cardiologist to any contrary or favourable view expressed by Dr Gorgioski, who is a general practitioner. I note that in evidence the Applicant said he had been under treatment from Associate Professor Clark for 20 years.

29. As I have indicated, I accordingly find the Applicant is entitled to 10 impairment points under the Tables.

    Lower back condition

30. The Respondent concedes that the Applicant has a fully diagnosed back condition under s 6(4)(a), but does not concede that it is fully treated under s 6(4)(b) and stabilised under s 6(4)(c) of the Determination.

31. I am prepared to accept the concession of the Applicant’s back condition being fully diagnosed pursuant to s 6(4)(a) of the Determination without enquiring further, but I would think the concession is one that should not have been so readily made. Notwithstanding this, I accept that the Respondent made this concession.

32. The fact, however, is — and the Applicant indicates some degree of confusion over this in his separate submissions — that there is no specialist report detailing his condition.

33. Such a report — if based on examination during the qualification period — would indicate to me in an expert way how his condition should be treated from a specialist’s perspective and whether it was then stabilised.

34. I have nothing of significance to go on — independent of the Applicant’s own opinion and that of Dr Gorgioski dated 25 November 2019 — to show me how it may be said or how I may find as a fact that during this period his condition was fully treated and stabilised.

35. It is true that Dr Gorgioski says in the report that the Applicant’s condition is “treated, stable and permanent”, but this is not the same as saying that the condition is fully treated and fully stabilised. A condition which is permanent, moreover, may not be fully stabilised.

36. In any event, as I have said, Dr Gorgioski is not a specialist and I would need expert opinion on the Applicant’s back condition before I could be confident about stating it was fully treated and fully stabilised.

37. I note that in his separate submission, the Applicant repeats his evidence that he did not pursue going to see a physiotherapist because of the cost involved. He did undertake some swimming sessions but stopped, I believe, because the warm water was affecting his heart he thought.

38. Without being able to make a finding that the Applicant’s lower back condition was fully treated and fully stabilised during the qualification period, I am unable to assign any points in respect of his lower back condition under the Tables.

39. This should be sufficient to explain why Tier 1 made the decision it did with respect to his back condition.

40. Accordingly, I assign no points under the Tables for the Applicant’s lower back condition.

    Other conditions

41. In his separate submission, the Applicant questions why the points he was awarded for hearing loss (five points) were removed.

42. My understanding is they were removed because the Applicant uses hearing aids and thus suffers no functional impact due to deafness.

43. There was nothing in the evidence given to me which satisfied me I should take any different view.

    
    
    
    
    

    Conclusion

44. Accordingly, the Applicant is only entitled to 10 impairment points under the Tables for his cardiac condition. The Applicant is not entitled to any impairment points for his lower back condition or hearing loss.

    Section 94(1)(c)

45. I have formed the view for the above reasons that the Applicant is entitled to be assigned a total of 10 impairment points.

46. This means that the Applicant’s impairment is not of 20 points or more as per s 94(1)(b) of the Act.

47. That being so, I have no need to consider whether the Applicant meets the requirement in s 94(1)(c) or not.

48. I have my doubts, however, that had he satisfied s 94(1)(b) of the Act, that he would also satisfy s 94(1)(c) of the Act, in that as at the qualification period, I am not clear that he had a continuing inability to work.

    CONCLUSION

49. The Applicant, having failed to meet the requirement in s 94(1)(b) of the Act, fails altogether to have any entitlement under the Act to DSP.

50. The decision under review therefore is affirmed.

I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of
D Cremean, Senior Member.

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

Associate

Dated: 17 May 2022

Date of hearing:	29 September 2021
Applicant:	Self-represented
Advocate for the Respondent:	Ms Aarabi Raveendiran
Solicitor for the Respondent:	Services Australia