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

[2016] AATA 612

Iliadis and Secretary, Department of Social Services (Social services second review) [2016] AATA 612 (13 July 2016)

Division	GENERAL DIVISION
File Number	2015/0405
Re	George Iliadis
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member P Britten-Jones
Date	13 July 2016
Date of written reasons	17 August 2016
Place	Adelaide

The decision under review is affirmed.

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Senior Member P Britten-Jones

CATCHWORDS

SOCIAL SECURITY - disability support pension - whether conditions fully diagnosed treated and stabilised - whether applicant has 20 points or more under the Impairment Tables - whether applicant has participated in a program of support - decision under review affirmed.

LEGISLATION

Social Security Act 1991, s 94

Social Security (Administration) Act 1999

SECONDARY MATERIALS

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

Social Security (Requirements and Guidelines - Active Participation for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Senior Member P Britten-Jones

17 August 2016

1. Mr Iliadis worked as a supervising carpenter and joiner until he sustained a workplace injury in March 2007.  As a result of not being able to work he has become increasingly depressed and anxious.  This, together with associated financial problems as a result of not working, caused stress in his marriage which ended in divorce.  He has two daughters who used to come and stay with him every second weekend, but that is no longer the case.  He currently lives on his own.

2. Mr Iliadis lodged a claim for Disability Support Pension (DSP) on 5 August 2014.  This was not accepted by the respondent at first instance and on review, and on 21 January 2015 the Social Security Appeals Tribunal affirmed the department’s decision to reject Mr Iliadis’ claim for DSP.  On 28 January 2015 Mr Iliadis applied to this tribunal for review of the SSAT’s decision.

3. The issue in this case is whether Mr Iliadis was qualified for DSP as at the date of his claim on 5 August 2014 or within 13 weeks of that date, namely, a period ending on 4 November 2014.  Mr Iliadis gave limited evidence because he is suffering from a poor memory.  He relied mainly on what was contained in numerous reports from Dr Karina Jaeschke who has been his general practitioner since 2007.  Mr Iliadis also relies on other medical reports which have been tendered into evidence.

4. The department contends that at no time during the relevant claim period did Mr Iliadis qualify for the DSP.  Any deterioration subsequent to his claim is not to be relied upon for the purpose of determining this claim.  The relevant legislation is the Social Security Act 1991 (the Act) and the Social Security (Administration) Act 1999 (the Administration Act). Section 94 of the Act provides that in order to be qualified to receive DSP the applicant must have a physical, intellectual or psychiatric impairment (s 94(1)(a) of the Act), an impairment rating of at least 20 points (s 94(1)(b) of the Act) and a continuing inability to work (s 94(1)(c) of the Act).

5. A person has a continuing inability to work because of an impairment if the Secretary is satisfied in a case where the person’s impairment is not a severe impairment that the person has actively participated in a program of support within the meaning of subs (3C) of s 94 of the Act. Subsection (3C) says that a person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.

6. The issue for my determination based on that legislative framework is:

   6.1   whether the applicant, as at the date of his claim or within 13 weeks of that date, had a physical, intellectual or psychiatric impairment; 

   6.2   whether the applicant had an impairment rating of at least 20 points or more under the Impairment Tables;

   6.3  whether the applicant has a continuing inability to work.

   An Impairment

7. The department accepts that the applicant suffers from impairments arising from the following conditions, and therefore satisfies s 94(1)(a) of the Act. Those conditions are a spinal disorder, an adjustment disorder with anxiety and depression, a neck disorder, a shoulder/upper arm disorder and a liver disease.

   The Impairment Rating

8. I am next required to consider whether, within the relevant period, the applicant’s impairments can be assigned an impairment rating of 20 points or more under the Impairment Tables, as required by s 94(1)(b) of the Act.

   The Spinal Disorder

9. The department accepts that the applicant’s spinal condition was fully diagnosed, fully treated and fully stabilised as at the date of the claim, and contends that the functional impairment arising from that condition attracts a rating of 10 points under Table 4 (Spinal Function). 

10. Dr Karina Jaeschke provided the supporting medical report dated 4 August 2014 on which the application for DSP was based. 

11. The first condition diagnosed by Dr Jaeschke in her report related to the left lower back and buttock pain. 

    11.1It required treatment by analgesia, physiotherapy and massage.

    11.2Mr Iliadis was seeing an occupational physician, Dr Graham Wright. 

    11.3Past treatment included analgesia, physiotherapy, massage, acupuncture and a program of gym and swimming.

    11.4Specialist consultation included Dr Colin Mills, Dr Orso Osti and Dr Clothier, a pain specialist.

    11.5The current symptoms relating to the lower back and buttock pain was numbness most days, and significant left lower back pain and left buttock and left knee and heel pain.

    11.6Mr Iliadis had difficulty with respect to his memory due to the pain, and he suffered from back stiffness.

    11.7With respect to the impact on ability to function Dr Jaeschke said that Mr Iliadis had difficulty at times with driving, sitting or standing for more than 10 minutes, had difficulty with concentration and memory when the pain was bad, and had difficulty doing housework, such as vacuuming, mopping or washing of dishes. 

    11.8With respect to the impact of this condition on the patient’s ability to function it was said that it was expected to persist for more than 24 months, and that it would remain unchanged for the next two years.

12. In the Job Capacity Assessment Report dated 25 September 2014 an impairment rating of 10 points was given under Table 4 of the Impairment Tables.  This table includes the neck disorder.  I agree with the 10 point rating under Table 4.

    Adjustment Disorder

13. The next condition reported by Dr Jaeschke is the adjustment disorder with anxiety and depression: 

    13.1Dr Jaeschke set out in her August 2014 report the details of the current treatment and that specialists, Dr Peter Herriot and Dr Blakemore, had given reports. 

    13.2The report of Dr Jaeschke referred to ongoing psychological support being required. 

    13.3The current symptoms of the disorder with anxiety and depression included headaches, fatigue, trouble concentrating, being forgetful, being depressed when the pain is worse, being emotional and irritable.

    13.4With respect to the impact on ability to function Dr Jaeschke referred to Mr Iliadis having trouble concentrating and making decisions, and he can put himself in danger due to not thinking clearly, for example, when crossing a road.  He is forgetful, he is emotional and irritable, which affects his relationship with others.  Those conditions were said to expect to persist for more than 24 months and to remain unchanged for a period of two years.

    13.5With respect to the adjustment disorder with anxiety and depression the treating doctor in September 2014, namely Dr Jaeschke, reported that this condition is expected to remain unchanged over two years.  However, the psychiatrist, Dr Herriot, had recommended some changes in management, including redemption of the WorkCover claim, a change in medication and attention to sleep patterns. 

14. There is a question that was raised on this review as to whether this condition is fully stabilised.  Dr Herriot recommended significant changes in management, including a comment on the role of the WorkCover claim by Mr Iliadis in perpetuating the mental health condition. 

15. It is my finding that at the time of the claim the condition of adjustment disorder with anxiety and depression was not fully diagnosed, treated and stabilised because a psychiatrist has indicated significant improvement can be expected with changes in management of the condition.  An impairment rating cannot be assigned to it.

    Shoulder or Upper Arm Disorder

16. The next condition is the shoulder or upper arm disorder.  This was referred to in the report of Dr Jaeschke of August 2014. 

17. I agree with the rating of five points (Table 2 – Upper Limb Function). 

18. Mr Iliadis gave evidence that he cannot grip or pick things up with his left hand; he does everything with his right arm.  He cannot do up buttons with his left hand.  As at the second half of 2014 Mr Iliadis was receiving cortisone injections for his hand.  This is supported by the letter from Dr Jaeschke dated 12 December 2014.  It refers to weakness in his left hand and being unable to move, and cannot grip or open the hand fully, together with severe pain in his left upper back, neck, shoulder and pain to the left elbow and hand.  This letter from Dr Jaeschke dated 12 December 2014 also refers to the need for a cortisone injection or surgery.  It is also supported by a letter from Dr Graham Wright dated 10 December 2014 which refers to very reduced wrist extension, to a lesser extent wrist flexion and all fingers being weak.

    Liver Disorder

19. The next condition is the liver disorder.  I agree with the department’s contention that this condition was not fully diagnosed in 2014.  There is no medical evidence except for a brief mention in the report of Dr Jaeschke dated 18 September 2014.

    Total Impairment

20. With respect to total impairment, I find a rating of 15 points. Therefore s 94(1)(b) of the Act is not satisfied and Mr Iliadis fails to satisfy the statutory criteria.

    Continuing Inability to Work

21. It is not necessary for me to consider whether Mr Iliadis has a continuing inability to work, as required by s 94(1)(c) of the Act, but I do make a finding that Mr Iliadis fails to satisfy subs (3C) because there is no evidence of a program of support, as required by s 94(2)(aa).

22. The legislative framework with respect to a program of support includes the Social Security (Requirements and Guidelines - Active Participation for Disability Support Pension) Determination 2011 (Determination) made by the Minister on 23 August 2011 which sets out both the requirements which must be met, in order for a person to be regarded as having actively participated in a program of support, and also the guidelines that the Secretary, or the Tribunal standing in the Secretary’s shoes, must comply with in deciding whether a person has actively participated in a program of support.

23. Part 2 of the Determination, which sets out the requirements which must be met, relevantly provides that a person has actively participated in a program of support if the person has, firstly, complied with the requirements of the program of support and, secondly, participated in a program of support during the 36 months ending immediately before the relevant date of claim.  In this case that would be a period from August 2011 to August 2014. 

24. Part 3 of the Determination contains the Guidelines that I must follow in determining whether Mr Iliadis has actively participated in a program of support for the purposes of subs 94(2)(aa). Those guidelines require me to have regard to whether the program of support:

    (a)was provided by a designated provider; and

    (b)was specifically tailored to a address the person’s level of impairment, individual needs and barriers to employment; and

    (c)provided vocational rehabilitation or employment services, with a particular focus on developing skills the person requires to improve the person’s capacity to find, gain or remain in employment, and includes at least one of certain listed activities.

25. “Designated provider” is also defined in Section 3 of Part 1 of the Determination to mean any one of the following:

    (d)a Job Services Australia provider;

    (e)a Disability Employment Service;

    (f)an Australian Disability Enterprise;

    (g)a provider authorised by a State or Territory government to conduct a transition to work program;

    (h)a provider authorised by the relevant workers’ compensation authority of the Commonwealth, or of a State or Territory, as a result of a claim made under the relevant legislation of the Commonwealth, State or Territory, and other authorised entities, which I will not detail.

26. Mr Iliadis contends that the evidence of participation in a program of support is contained in the medical reports.  There is a report from Dr Jaeschke dated 27 January 2015 in the form of a letter.  It refers to Mr Iliadis attempts to conduct recent rehabilitation and work hardening for his back in October to December 2014 where he attempted to do more and increased hours of duty in his home.  Prior to this, the letter from Dr Jaeschke referred to various attempts, including doing some work in or around May 2007 to March 2008, which was then ceased due to increased pain and depression, and doing a computer course from late-May 2009 to around July 2010 up to five hours a week and some rehabilitation work for one to two months with Richmond Demolition, which was organised by himself.  The letter says that Mr Iliadis thought that this was prior to early 2011.

27. Mr Iliadis says he participated in a WorkCover rehabilitation program for three months but he was unable to give any more detailed evidence about this, and no supporting documentation has been provided.  I note also a report entitled “Suitable Employment Options Report” dated 17 February 2010 which refers to activities undertaken as part of rehabilitation and return to work process.  It then refers to work hardening placements and includes the work done with Richmond Demolition for a few months, including duties estimating prices of jobs, which Mr Iliadis says did not work out due to his back and, because he did not like the work. 

28. The Suitable Employment Options Report refers to Mr Iliadis originally having Gary Ulmer as his rehabilitation consultant and then Gabrielle Moore.  The report says that the case manager states that there is not currently a rehabilitation consultant allocated to Mr Iliadis’ file.  The report refers to Mr Iliadis currently undertaking computer training at Trison Business College twice a week, and Mr Iliadis states that Dr Jaeschke had approved his attendance for five hours in total per week, but that was restricted to no more than about two hours.

29. I confirm my finding that Mr Iliadis did not participate in a program of support, and therefore does not satisfy the legislative requirements in that regard. 

30. I conclude that Mr Iliadis does not qualify for the Disability Support Pension in respect to his 5 August 2014 application. 

31. My decision is to affirm the decision under review.

I certify that the preceding 31 (thirty -one) paragraphs are a true copy of the reasons for the decision herein of Senior Member P Britten-Jones

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Administrative Assistant

Dated 17 August 2016

Date(s) of hearing	13 July 2016
Applicant	In person
Advocate for the Respondent	Mr A Hay
Solicitors for the Respondent	Department of Human Services