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

[2019] AATA 416

Caldaras and Secretary, Department of Social Services (Social services second review) [2019] AATA 416 (2 March 2019)

Division:GENERAL DIVISION

File Number(s):      2018/2814

Re:Todor Caldaras

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Bill Stefaniak AM RFD, Senior Member

Date:2 March 2019

Place:Sydney

The decision under review is affirmed.

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

Bill Stefaniak AM RFD, Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether applicant qualified during claim period – multiple conditions – whether conditions fully diagnosed, treated and stabilised – whether the impairments attract 20 points or more – Impairment Tables – continuing inability to work – program of support – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

SECONDARY MATERIALS

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

REASONS FOR DECISION

Bill Stefaniak AM RFD, Senior Member

2 March 2019

1. The applicant had been on a disability support pension (DSP) from 2011 when, in early August 2017, he went into his local Centrelink office and was advised by an apparently well-meaning staff member that as he was caring for his severely disabled son, he was entitled to carer payment and carer allowance which would give him $120 per fortnight more pay.

2. Accordingly on 4 August 2017 his DSP was cancelled and he was transferred to carer payment (with the same benefits) plus carer allowance ($120 per fortnight).

3. In October 2017, the applicant, who is not a well man, decided that he might be able to get a kidney transplant from his brother in France and that he should go back on DSP because if he got 20 points for any one ailment he could go overseas without a time limit, have the operation and then recuperate before returning home.

4. He applied for DSP on 30 October 2017 and was unsuccessful and that is why he finds himself before this tribunal.

5. As 2018 progressed, he found it more and more difficult to care for his adult son.

6. He initially stayed on carer payment and allowance but it seems after being assured by a departmental officer to try again for DSP, because this time he was told he would be successful, he cancelled his carer allowance and payment on 11 October 2018 and went onto newstart allowance. On 15 October 2018 he then lodged a further claim for DSP which was also it seems knocked back and he is going through the appeal process again.

   THE LAW

7. The law in relation to DSP is a lot harder now than it was in 2011 when the applicant last got one.

8. Paragraphs 94(1)(a), (b) and (c) of the Social Security Act 1991 (Cth) (the Act) state that to qualify for DSP a person first has to have an impairment. (There is no problem there as the applicant has several.)

9. Further, the person’s impairment/s is/are of 20 points or more under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables or Tables) and finally the person has a continuing inability to work (i.e. that they are unlikely to be able to work for 15 plus hours a week at award or above wages anywhere in Australia independently of a program of support (POS)).

10. If a person gets 20 plus points under the Tables in total, but fails to get 20 points for any one Table then he/she has to have undertaken a POS for at least 18 months during the three year period immediately prior to his/her application for a DSP.

11. An applicant also has to provide medical evidence from a Doctor or in the case of Table 5 (Mental Health Function) from a psychiatrist or clinical psychologist to state that the impairment has been fully diagnosed. A health professional then has to indicate that it is fully treated and stabilised and provide evidence to corroborate what the person says about their ability to do, or not be able to do, certain activities.

12. Unfortunately for the applicant, the respondent felt it needed further medical evidence to back his contentions about his conditions and as that was not forthcoming they submitted to this tribunal that his conditions could not be said to be fully treated and stabilised.

    EVIDENCE AND DISCUSSION

13. The applicant and respondent provided evidence of a number of ailments. Indeed, the applicant takes 27 different types of medicine for his various conditions.

14. Whilst I appreciate the respondent’s contention that there is not a lot of recent documentation to back up the applicant’s 30 October 2017 claim I will nevertheless proceed to allocate points to all the conditions which troubled him as at the claim period (30 October 2017 to 29 January 2018).

15. It should be further noted that he had not done a POS and indeed had no idea what a POS was or the need to do one until the hearing.

16. As the applicant has not done a POS, he will need to get 20 points for any one of his impairments to qualify for DSP.

17. The final requirement is for an applicant to demonstrate that he/she is unlikely to be able to work for 15 hours plus a week within two years, independently of a POS.

    THE FACTS

18. The applicant came to Australia in 1988. He was a hard worker and worked in a number of jobs in several states. He is a qualified truck driver and was a mechanical engineer in his native Romania. He has supervised at various times up to 170 people in Australia.

19. In 2005 he stopped work due to heart issues and stress caused by his eldest son’s near death.

20. He has been on DSP before, notably the one granted in 2011 as referred to earlier.

21. He also suffers from injuries caused by a car accident in 1997.

22. He has vertigo and whilst he does not drink he does smoke five or six cigarettes each day.

23. He is separated from his wife and has a friend living with him who helps him on a daily basis. He does not cook or do housework or do the washing. He can go to the shops and push a trolley around both now and as at the claim period.

24. Another friend who gave brief evidence to that effect drives him to the shops. This witness also said as he too has disabilities they can park right up next to the shops so they don’t have to walk far and confirmed that the applicant uses the trolley for support whilst shopping.

25. The applicant watches TV at home a lot, does not go out as he can’t afford to, but says he has a number of friends.

26. On 24 April 2017 he was diagnosed with cancer in his left kidney. As I have related above he is keen to have a kidney transplant and intends to do so (preferably overseas). He is still on a waiting list in Australia as well for a new kidney.

27. Other operations that may be helpful are problematic because of his diabetes.

28. He needs help in the shower because of his vertigo. He also uses a chair in the shower.

29. In recent years he has on a number of occasions collapsed to the ground, both in the street and at home.

30. This is because of his diabetes/heart and vertigo.

31. On several occasions an ambulance was called and gave him an injection for the diabetes and he then recovered within five minutes. His not irregular collapsing spells worry him and make him nervous if he goes out.

32. He has had two stents put in his heart in 2013 and again in 2018.

33. He has metallic screws in his spine and has bulging discs, numbers 2,3,4,5, and 6 in his back.

34. He also has trouble with his left elbow which he has injections for and several months ago (September 2018) he fell and badly broke his right elbow.

35. This was in a brace during the hearing which he took off to show the tribunal the scars and muscle wastage that resulted from the injury. He then put the brace back on without difficulty (it had adhesive straps).

36. The applicant said he could drive but hadn’t since 2016 as he felt he might kill someone because he had no feeling in his lower legs and in his feet. The tribunal thinks that this is a fair and responsible comment by him in his circumstances.

    DR GIRGIS

37. The applicant’s GP Dr Girgis gave evidence by phone.

38. The doctor has been the applicant’s GP for over 10 years.

39. He said the applicant has the following ailments:

    Kidney disease, diabetes, back issues, ankle problems, problems now with both arms, heart issues, mental health issues and prostate issues

40. His ailments cause him to not sleep well, and impact on his ability to walk very far - the doctor estimated during the claim period the applicant could walk about two to 300 metres only before needing to stop. He had trouble climbing two flights of stairs to the doctor’s surgery.

41. Sleep apnoea makes him tired, he takes medication for pain in relation to his back and knees and ankle.

42. He can drive but not for long as he can’t sit for long. He has no feeling in his legs and feet below the knee and does not feel anything if he drops something on his foot.

43. This is because of his diabetes.

44. The doctor felt he really couldn’t do much at all and was at a loss as to what job he could do. The doctor was not aware of his qualifications.

45. He felt “collectively, he is unable to be gainfully employed”.

    SUBMISSIONS

46. The respondent submitted that because of the lack of medical evidence in recent times none of the conditions, even if diagnosed, were fully treated and stabilised.

47. Regarding his mental health condition, whilst he had various treatments for his mental health problems there appears to be no formal diagnosis of that condition (as there needs to be by law) by a psychiatrist or a clinical psychologist.

48. The respondent therefore contended that no points could be awarded and the decision under review was correct.

49. The applicant submitted he was a very sick man and pointed to the fact that he took 27 different pills a day, plus Dr Girgis’ evidence and he also showed the tribunal his ankle injury, his left and right arm injuries and demonstrated muscle wastage as well.

50. He also had a real problem with a departmental doctor on 5 December 2018 which the tribunal told him he could complain about if he wished to take it further.

    TRIBUNAL’S OBSERVATIONS

51. The applicant was very emotional and demonstrative in giving his evidence which he gave in a forceful, enthusiastic way.

52. The tribunal observed he could concentrate, obviously had friends, was able to get out of his chair and walk around, was able to move his body without difficulty and could raise his hands above his head.

53. He was also able to take off his arm brace and put it back on.

54. The tribunal nevertheless is of the view that he would have difficulty holding down any job of 15 hours plus a week because of his aliments and also because of what may well be mental health issues. Whilst unable to come to a definitive view on this issue the tribunal tends to agree with Dr Girgis on this point.

    IMPAIRMENT POINTS

55. Putting to one side the question of whether the applicant was fully treated and stabilised, I have rated him against the Tables as at the claim period.

    Table 1 (Functions requiring Physical Exertion and Stamina) – Diabetes, Heart, Kidney

56. I would rate him 10 points as the evidence shows that during the claim period he experienced frequent shortness of breath and he needed to drive to the shops but was able to mobilise around the shops using a trolley for support.

57. He cannot get 20 points as he could as at the claim period get out of his car and walk around the shops without human assistance, use public transport without a person having to physically help him on and off a bus or train and he can (even though his friend does it) perform light household tasks such as putting clothes in a washing machine (which he does occasionally).

    Table 2 (Upper Limb Function) – Left elbow

58. The tribunal notes that this may have changed now due to his nasty accident in September 2018 that broke his right elbow, but as at the claim period it would appear he could pick up, handle, manipulate and use most objects encountered on a daily basis without difficulty.

59. Even during the hearing he demonstrated his ability to take off and put on an arm brace without too much trouble.

    Table 3 (Lower Limb Function) – Ankle

60. I would award him 10 points during the claim period as he could not walk more than two to 300 metres without stopping for a rest and was driven to the local shops where he used a trolley or his walker to assist him in getting around. I note this may also relate to his vertigo and diabetes/heart problems.

61. He could not get 20 points because he could do all the things listed in the descriptors.

    Table 4 (Spinal Function) – Spine/Back

62. I would rate him nil points as he could, in the claim period, do all the things mentioned in the descriptors.

63. This still appears to be true today. He can perform overhead activities, he can bend to knee level and straighten up (he bent down to take off his shoes and socks to show the tribunal his bad ankle then bent down to put them back on) and he was turning his trunk and looking up and turning around to both sides at times during the hearing.

    Table 5 (Mental Health Function)

64. The respondent appeared to concede that the applicant’s mental health had been diagnosed in April 2018 which is outside the claim period. The tribunal agrees that the mental health issues were not diagnosed until April 2018 which is outside the claim period, and may not have been done by a psychiatrist or clinical psychologist.

65. Even if properly formally diagnosed for the purpose of the legislation no points can be awarded as it is outside the claim period.

66. The tribunal had a quick look at Table 5 and from its observations noted the applicant seemed to satisfy three and possibly four of the six descriptors for 10 points at present.

    Table 13 (Continence Function) – Incontinence/Bladder (prostate)

67. The tribunal would award 5 points as the applicant did (and still does) have to go to the toilet a lot and has lost control of his bladder on occasions. I note however that there is not a great deal of evidence in relation to this, nor has there apparently been much treatment as the applicant appears reluctant to have an operation because, he says, of his diabetes and is awaiting the possibility of having some other treatment administered.

    Summary

68. Whilst I believe the heart, diabetes, lower back, ankle and left elbow have all been fully diagnosed, stabilised and treated, and indeed were when he got his DSP in 2011 thus alleviating the need for further reports, his kidney issues cannot be said to be fully treated as he is awaiting a transplant and there needs to be further evidence of treatment in relation to his incontinence issues and he himself wishes to try some further treatment as well.

69. I also think it would be prudent for Dr Girgis to send him to a psychiatrist or clinical psychologist to get a formal diagnosis to tick that box and then do an updated assessment of him according to the descriptors in Table 5 (Dr Girgis can do the actual assessment using Table 5 but a psychiatrist or clinical psychologist needs to do the formal mental health diagnosis first. A psychologist or a GP such as Dr Girgis can do the assessment against the Tables).

70. Of course, a GP can do any other diagnosis and assessment under all of the other 14 Tables.

71. Accordingly, as at the claim period, I can allocate him 10 points each under Tables 1 and 3.

72. This makes it 20 points in all.

73. Were he fully treated and stabilised for his incontinence I could award him 5 points and had his mental health been diagnosed during or prior to the claim period he may well get 5 and possibly 10 points.

74. As he has not got 20 points for any one impairment, and as he has not participated in a POS, he cannot qualify for DSP as at the claim period.

    RECOMMENDATION

75. The applicant appears to have got worse and we now have significant evidence of mental health issues too.

76. I appreciate his frustration but the law is the law.

77. I suggest he gets a friend who speaks Romanian to translate this judgment for him,

78. It would be sensible if he saw Dr Girgis and:

    (a)Got a definitive diagnosis as suggested above from a psychiatrist or clinical psychologist of his mental health condition.

    (b)Gave Dr Girgis the Tables in the T documents (see pages 19 to 83 especially) so that Dr Girgis could then go through the Tables and rate him in accordance with the descriptors in each Table.

    (c)Dr Girgis, as he has done before, would also need to consider and then comment on whether each ailment is fully treated and stabilised and no other reasonable treatment is likely to see any significant improvement in the future. Regard should be had to the rules for applying the Tables as set out in the T documents (it seems that Tables 1, 2 and 5 deal with the worst impairments and are the ones that seem most relevant to his ongoing medical issues and the most likely to qualify him for 20 points).

79. If the doctor finds he has 20 points for any one Table, thus having “dotted the I’s and crossed the T’s” he could then approach his local Centrelink office with a view to applying for a new DSP. The applicant needs to remember that it has been very difficult to get DSP since the changes to the law on 1 January 2012, but a person can have as many goes at getting one as she/he likes. It is a matter of satisfying the criteria.

80. Many people have three or four goes before they are successful. However, many people, including it seems the applicant, do get worse with age which helps them qualify and the tribunal regularly sees this happen.

    DECISION

81. For the reasons given above, the applicant cannot get DSP as at the claim period and accordingly the order of this tribunal will be that the decision under review will be affirmed.

I certify that the preceding  81 (eighty–one) paragraphs are a true copy of the reasons for the decision herein of Bill Stefaniak AM RFD, Senior Member

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

Associate

Dated: 2 March 2019

Date(s) of hearing:	15 January 2019
Applicant:	In person
Solicitors for the Respondent:	A Zinn, Department of Human Services