John Karabatsos and Secretary, Department of Social Services

[2014] AATA 213

[2014] AATA 213

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/2200
Re	John Karabatsos
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Ms N Isenberg. Senior Member
Date	11 April 2014
Place	Sydney

The decision under review is set aside and substituted with a decision that the applicant was qualified to receive disability support pension on the date of his claim, being 15 October 2012, or within 13 weeks of that date.

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

Ms N Isenberg, Senior Member

CATCHWORDS

SOCIAL SECURITY – pensions – disability support pension – irritable bowel syndrome – whether the applicant had an impairment rating of 20 points or more under the impairment tables – whether the applicant had a “continuing inability to work” – decision under review set aside

LEGISLATION

Social Security Act 1991 s 94

Social Security (Administration) Act 1999 ss 13, 41, 42, Sch 2

CASES

Re Crossland and Secretary, Department of Family and Community Services [2004] AATA 864

Re Hamal and Secretary, Department of Social Services (1993) 30 ALD 517
Re Li and Secretary, Department of Employment and Workplace Relations (2007) 96 ALD 769
Re Secretary, Department of Family and Community Services and Bell (1998) 52 ALD 472

Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444

SECONDARY MATERIALS

Guide to Social Security Law

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

REASONS FOR DECISION

Ms N Isenberg, Senior Member

11 April 2014

1. On 15 October 2012, the applicant, John Karabatsos, lodged a claim for DSP.  His application was refused.  That decision was affirmed on internal review and upon review by the Social Security Appeals Tribunal (“SSAT”).  The applicant seeks review of that decision.

   ISSUES

2. The issue before the Tribunal is whether the applicant was qualified or became qualified to receive DSP within the period 15 October 2012 (the date of claim) to 14 January 2013 (13 weeks from the date of claim). This depends on whether the applicant satisfied s 94 of the Social Security Act 1991, in particular:

   ·Whether some or all of the applicant’s impairments were permanent, and, if so;

   ·Whether his impairment/s attracted an impairment rating of at least 20 points, and, if so;

   ·Whether he had a continuing inability to work.

   THE LEGISLATION

3. The legislation relevant to this decision is contained in the Social Security Act 1991 (the Act) and the Social Security (Administration) Act 1999 (the Administration Act). Policy advice contained in the Guide to Social Security Law (“the Guide”) is also relevant.

4. Section 94 of the Act provides the qualification criteria for DSP. Relevantly, the person must have a physical, intellectual or psychiatric impairment (s 94(1)(a)), which attracts an impairment rating of at least 20 points (s 94(1)(b)) and the person must have a continuing inability to work (s 94(1)(c)(i)). A continuing inability to work (“CITW”) is defined in s 94(2) of the Act.

5. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination) took effect from 1 January 2012.  The Determination contains the Impairment Tables (“the Tables”) and the rules for their application.  The Tables are function-based and describe functional activities, abilities, symptoms and limitations.  They are designed to assign ratings to determine the level of functional impact of impairment.  Impairment is defined to mean a loss of functional capacity affecting a person’s ability to work that results from the person’s condition: s 3 of the Determination.  A claimant’s impairment is to be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person:  s 6(1) of the Determination.

6. The Tables may only be applied after the person’s medical history has been considered.  An impairment rating can only be allocated if a condition is permanent, that is, fully diagnosed, treated and stabilised, and likely to persist for more than two years: s 6(2)-6(4) of the Determination.

   THE RELEVANT PERIOD

7. The Administration Act provides that ordinarily the start day for DSP is the date of claim (ss 13, 41, 42, Schedule 2 clause 3). This means that qualification and impairment ratings must be determined at the date of claim. The only exception is where the person is not qualified on the day of claim but “will ... become qualified” and “becomes so qualified” within thirteen weeks of lodging a claim, in which case their start day is the day they became qualified: Schedule 2 clause 4(1).

8. The applicant lodged a claim for DSP on 15 October 2012. By virtue of ss 13, 41, 42 and Schedule 2 clause 3 of the Administration Act, the issue is whether the applicant is qualified to receive DSP on the date of claim, or if not, whether he became so qualified within 13 weeks, that is, 15 October 2012 to 14 January 2013.

   DOES THE APPLICANT SUFFER A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT?

9. In his claim the applicant listed his disabilities/illnesses as “depression, anxiety, insomnia, irritable bowel syndrome, asthma, post traumatic stress disorder(s), severe weight loss, fractured clavicle”.  At the hearing the applicant conceded that he was unable to meet the criteria in order to have his psychiatric condition considered as permanent and the only condition he relied upon was his irritable bowel syndrome (“IBS”).

10. The respondent conceded that the applicant suffered IBS. Therefore I find the applicant satisfies s 94(1)(a) of the Act in relation to that condition.

    WAS, AT THE RELEVANT DATE, THE APPLICANT’S CONDITION PERMANENT, AS DEFINED?

11. There was no submission by the respondent that the applicant’s IBS was not permanent.  I accept, therefore, that by the end of the relevant period the applicant’s IBS was fully diagnosed, treated and stabilised and an impairment rating can therefore be made.

    WHAT IS THE APPROPRIATE RATING OF THE APPLICANT’S CONDITION?

12. Table 10 – Digestive and Reproductive Function provides relevant as follows:

Points

Descriptor

…

…

10

There is a moderate functional impact on work-related or daily activities due to symptoms or personal care needs associated with a digestive or reproductive system condition.

(1) At least two of the following apply to the person:

(a) the person’s attention and concentration on a task are often (at least once a day but not every hour) interrupted or reduced by pain or other symptoms or personal care needs associated with the digestive or reproductive system condition;

(b) the person is unable to sustain work activity or other tasks for more than 2 hours without a break due to symptoms of the digestive or reproductive system condition;

(c) the person is often (once per month) absent from work, education or training activities due to the digestive or reproductive system condition.

20

There is a severe functional impact on work-related or daily activities due to symptoms or personal care needs associated with a digestive or reproductive system condition.

(1) At least two of the following apply to the person:

(a) the person’s attention and concentration at a task is frequently (at least once every hour) interrupted or reduced by pain or other symptoms or personal care needs associated with the digestive or reproductive system condition;

(b) the person is unable to sustain work activity or other tasks for a total of more than 3 hours a day, even with regular breaks, due to symptoms of the digestive or reproductive system condition;

(c) the person’s condition may affect the comfort or attention of co-workers;

(d) the person is frequently (twice or more per month) absent from work, education or training activities due to the digestive or reproductive system condition.

…

…

1. The applicant contends that his condition attracts a rating of 20 impairment points whereas the respondent contends that a rating of 10 is appropriate.

2. The respondent relied on a Job Capacity Assessment (“JCA”) carried out by a Centrelink registered psychologist (“the first JCA”) on 5 November 2012.  As the assessor did not consider the condition to be permanent on the basis that it was not fully treated and stabilised, it did not attract a rating.  A further JCA was conducted by a Centrelink clinical psychologist and registered nurse on 9 January 2014 (“the second JCA”).  The assessors assigned an impairment rating of 10 points from Table 10.  The applicant submitted that the reports should be given little weight as the assessors were not qualified to assess his IBS.  As discussed at the hearing, I consider that the weight to be given to these JCA reports is limited when compared to the weight to be given to the evidence of the treating doctor, and even less if they were to be compared with a treating specialist, if any.

3. In support of his claim the applicant had provided a report from his GP, Dr Savoulis dated 24 October 2012.  The doctor reported in relation to the applicant’s IBS that the current symptoms were “bloating; abdo[minal] discomfort and pain”.  The treatment at that time was Mintec (an antispasmodic) and Metamucil (a natural fibre formula).  Past treatment was “antispasmodics” and future treatment was to be “conservative”.

4. The applicant’s evidence before me, and in his comprehensive written submissions, was broadly consistent with his evidence before the SSAT.  Unusually, his evidence was unchallenged.

5. He said that he always has the symptoms of IBS – an endless cycle of constipation and diarrhoea – and nothing more can be done to improve the condition.  He said that he regularly sees Dr Savoulis about the condition and is totally compliant with anything that is suggested he do to treat the condition, including going for specialist consultations.  He had an upper endoscopy in 2008, a colonoscopy in 2009 and again quite recently.  He has also had his gall bladder checked to eliminate any problems with his gall bladder.  He explained that the usual procedure to treat the condition is to eliminate the possibility of any other causes.  He produced medical evidence about these investigations.  If no other cause is found, as occurred in his case, then the complaint is considered to be IBS and the condition is treated accordingly.

6. The applicant’s evidence was that he experiences chronic pain and discomfort from the condition.  He also experiences sudden spasms which can be so gripping that he has injured himself because the suddenness and the intensity cause him to lose concentration on the activity to hand.  For example, a sudden pain while he had been bike riding caused him to let go of the handlebar and careen off the road, breaking his clavicle.  His symptoms include random passing of wind and constant visits to the toilet.  He sleeps poorly due to abdominal discomfort.  That makes him lethargic.  He has lost weight and is concerned about getting adequate nutrition due to his frequent diarrhoea.   He explained that the condition is worse in the morning and settles down later in the afternoon.  There is some relief before he eats and his best time of the day is between 3 pm/4 pm and 8 pm.  By this time, he has usually been able to evacuate his bowels.  Even so, he still feels impacted and this feeling is constant.  He feels bloated and he sometimes feels he cannot breathe.  He feels sick.  His symptoms become worse again after he has eaten.  The applicant told the Tribunal that he burps a lot.  He said he might need to urgently visit the toilet as often as 30 times per day.  He never passes a stool as such, and only passes watery motions, or, if constipated, none at all.  Up to four times a day he will soil his underpants.

7. He watches his diet and follows a FODMAP diet, although he was not completely sure what this exactly entailed.  He said he is unable to eat wheat, barley, rye, legumes and garlic.  He has been advised to eat leafy vegetables.  He can eat rice, quinoa, corn and bland food.  He also is unable to have caffeine or chocolate.  Although he does not like the diet, he sticks to it.

8. He described his use of medication.  He has previously taken a number of antispasmodics: Buscopan, Colese, and up to five Mintec tablets a day.  He sometimes uses Movicol but has to be careful when taking this because, while it helps him, it can produce urgent diarrhoea.  He also takes Ethical Nutrients Probiotics twice a day and other vitamins.

9. At the hearing the applicant said that he has not taken Colese for 3-4 months.  When the prescription ran out he did not bother obtaining another, because the medication did nothing for him anyway.  He prefers to self-medicate, and uses a variety of medication, some of which are natural remedies, and others are over-the-counter medication.  He has tried Chinese medicine without success.  Prior to attending the hearing, so as to ensure he had evacuated his bowels, he had taken Movicol (four sachets) the previous afternoon, two Ducolax (the maximum dose) the previous night, and Actilax (an osmotic containing lactulose used in the treatment of chronic constipation) on the morning of the hearing.  He said all of these are addictive and he regards himself as addicted to them.  His bowels do not ever function normally and he is in a constant cycle of constipation and diarrhoea.

10. The applicant provided a letter from Dr Savoulis dated 26 November 2013.  There the doctor wrote that the date of onset of the applicant’s IBS was 2004.  He listed symptoms of “Pain of varying severity most days. The pain is colicy [sic] lasting about ten minutes and recurs frequently during the day. Abdominal discomfort most days. Constipation three to four times a week with frequent faecal impaction. Bloating two to three days a week. Belching and flatulence. Insomnia due to pain. Fatigue”.  Dr Savoulis opined that the condition has a severe functional impact on the applicant’s ability to work.  The doctor also provided a number of (“one-line”) medical certificates issued during the period 12 September 2008 and 29 May 2009, although they did not specifically refer to his IBS.

11. Dr Savoulis gave evidence to the Tribunal by telephone.  He said that the applicant had been his patient since about 1976 and the applicant had first consulted him about his stomach problems in about 2004.  In 2009 he had referred him to a gastroenterologist for investigation.  Dr Savoulis confirmed that IBS is a condition diagnosed after other possible causes of the symptoms are eliminated.  He said the applicant had consulted him about the condition as recently as a week ago, and had previously seen him in mid-March and prior to that, in November last year.  When asked to direct his attention to the relevant period he said that the applicant was at that time suffering recurring abdominal pain, constipation, bloating, flatulence, and insomnia occasioned by his discomfort.  He said that from time to time he had prescribed Colese and Buscopan to be taken daily or as needed.  His last prescription was for Colese on 16 April 2013 which was for 30 tablets with two repeats.  He was aware the applicant has done a lot of research and takes non-prescription medication.  He did not specifically recall a conversation with the applicant about the interaction between prescription and non-prescription drugs.  In cross-examination he was asked about the Movicol and Actilax to which he had referred in his letter of 26 November 2013.  He said he had not prescribed those drugs but they could be obtained over-the-counter.  He was referred to his treating doctor’s report dated 24 October 2012 where he had written that the applicant was only taking Mintec and Metamucil at that time.  He did not agree that additional medication referred to in his letter of 26 November 2013 meant that the condition had worsened between the dates of the two reports such that the applicant required additional medication.  He said the condition fluctuates, but is chronic.

12. He was referred in cross-examination to having described the applicant’s condition in his letter of 26 November 2013 as “severe” in accordance with the Table.  He was asked about each of the descriptors.

13. Hourly interruptions to attention and concentration – The doctor said that the fluctuating nature of the applicant’s condition meant there may be a week or two when the symptoms reduce somewhat.  He thought, though, that the applicant was affected every hour.  He said he saw him on October 2012 and again in December 2012, February 2013, April 2013 and November 2013.  The applicant always complains of symptoms.

14. Inability to work more than 3 hours – The doctor said that the applicant often complains of pain and constipation.  He agreed that the nature of the condition is one which relies on self-reporting.

15. Condition may affect the comfort or attention of co-workers – As to the effect on co-workers, the doctor said that those around the applicant would be able to observe his pain.

16. Absent from work twice or more per month – The doctor referred to the many medical certificates he had provided in respect of the applicant’s absences from work.

17. In order to be rated as severe on Table 10, a person must satisfy at least two of the specified criteria.

    Hourly interruptions to attention and concentration

18. The respondent submitted that there is no objective evidence that the applicant’s attention or concentration on tasks was interrupted or reduced by pain or other symptoms or personal care needs at least once every hour.  The respondent took the fine point that whilst it could be accepted that the condition affected the applicant at least once an hour, there is no evidence that it affected him every hour.  The applicant’s evidence was of frequency and urgency when in the diarrhoea cycle.  When not in that cycle his evidence was of continual feelings of bloating and constipation.  I accept that the constant pain he described and the unpredictability of the diarrhoea symptoms is likely to affect his concentration at least once every hour.  I note Dr Savoulis’ view that the applicant was affected every hour.

    Inability to work more than three hours

19. The respondent submitted that there is also no objective evidence that the applicant was unable to work more than three hours.  The applicant’s evidence of frequency and urgency when in the diarrhoea cycle and continual feelings of bloating and constipation otherwise, as I have observed, was unchallenged.  I accept that these symptoms are likely to affect his ability to work more than three hours.  Even if he were able to access regular breaks, his condition does not conveniently allow toilet visits in accordance with any schedule.  Further, in his medical report of 24 October 2012 Dr Savoulis observed that the condition affects the applicant’s “endurance”.  I also note the applicant’s unchallenged evidence of sleeplessness, weight loss and nutritional concerns.

20. I find that it is unlikely that the applicant has the ability to sustain a work activity for more than three hours.

    Condition may affect the comfort or attention of co-workers

21. The applicant referred to his burping due to the IBS as being disruptive in his former workplace.  His symptoms include random passing of wind, and this was confirmed by Dr Savoulis.  This, in my view, may affect the comfort or attention of co-workers.  I also consider his frequent and urgent visits to the toilet would be likely to attract the attention of co-workers.

    Absent from work twice or more a month

22. The applicant provided medical certificates for the period 12 September 2008 to 29 May 2009 in relation to his claim that he meets this descriptor.  The certificates noted absences in during that period: September (3 days), October (3 days), November (3 days), December (1 day), January (nil), February (1 day), March (2 days), April (2 days) and May (2 days).  The applicant’s evidence before me and reported to the assessor in the first JCA was that his condition is aggravated by stressful events and the assessors who wrote the second JCA noted those certificates represent the period before the applicant’s work dismissal, where he was under significant stress.  The respondent did not appear to challenge his assertion.  The respondent submitted that as the date of onset of his condition was 2004, he suffered symptoms in the last five years of his employment, which concluded in 2009.  There was no evidence about his work attendances before or after the period to which the medical certificates relate.  Given the medical certificates are for a limited period of just over seven months, and relate to the stressful months leading up to his dismissal from work, the respondent contended that they cannot support a conclusion that the applicant was absent from work twice or more a month.  Somewhat inconsistently it seemed to me, the respondent nonetheless accepted that the applicant may have “often” been absent from work since his symptoms commenced.

1. The evidence in relation to the applicant’s absences from work over an extended period was equivocal.  There was, however, evidence that for at least two of the months in the relevant period the applicant had two days off work.

2. I find that the applicant’s IBS attracts an impairment rating of 20 points from Table 10 as he satisfies at least two of the relevant descriptors.

   DOES THE APPLICANT HAVE A CONTINUING INABILITY TO WORK (CITW)?

3. A person has a continuing inability to work if the Secretary (or the Tribunal on review) is satisfied that the person has actively participated in a program of support.  The respondent conceded that the applicant met the requirements of a program of support.

4. A person’s impairment must, of itself, be sufficient to prevent them from doing any work independently of a program of support, or undertaking a training activity, within the next two years. The availability of a training activity or work in the locally accessible labour market is to be disregarded when deciding if a person has a CITW: ss 94(2) and 94(3) of the Act.

5. Section 94(5) of the Act defines work as work that exists in Australia that is for at least 15 hours per week on wages at or above the relevant minimum wage.

6. The respondent contended that the applicant does not have a CITW to work for at least 15 hours per week as defined by s 94(5) of the Act, and so does not satisfy s 94(1)(c)(i) of the Act.

7. In the first JCA, dated 5 November 2012, the assessor, a registered psychologist, found that the applicant had a temporary work capacity of less than 7 hours per week but would, after 3 February 2013, have a baseline work capacity of 15-22 hours per week, and, within two years 23-29 hours per week with intervention.  In the second JCA he was assessed as having a baseline capacity to work of 15-22 hours per week, increasing to 23-29 hours per week within two years with intervention.  The respondent contended that there is no evidence that the applicant’s medical impairments would prevent him from doing work within the next two years.  Similarly, the respondent contended that there is no evidence that the applicant’s medical impairments would prevent him from undertaking training within the next two years.

8. In the process of determining whether a person has a continuing inability to work, the decision maker must be satisfied that the continuing inability to work is directly caused by the impairment that has been assigned an impairment rating under paragraph 94(1)(b) of the Act: see Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444 and Re Crossland and Secretary, Department of Family and Community Services [2004] AATA 864. Impairments that have not been assigned a rating under the Tables cannot be considered when assessing whether a person has a continuing inability to work. Factors not related to a person’s impairment also cannot be considered, such as motivation or preferences for a type of work. Hence in assessing whether the applicant has a continuing inability to work, only his IBS (which attracts a rating under the Tables) can be considered. I note the respondent made no submissions that the applicant’s psychological condition affected the applicant’s ability to work.

9. The respondent contended that the job capacity assessor is qualified to make an assessment of the applicant’s continuing inability to work.  Furthermore, the assessor has specialised knowledge and experience in identifying barriers to employment, interventions, available programmes, and suitable occupations to determine a person’s impairment rating and work capacity.  The respondent contended that the Tribunal should rely on the assessment by the job capacity assessor.

10. On the other hand, the applicant gave detailed and unchallenged evidence of the debilitating effects of his condition.  I have also accepted the applicant’s evidence of his poor sleep cycle, and his lethargy and lack of concentration.  In my view it is highly unlikely that any normal workplace could tolerate his symptoms: Re Li and Secretary, Department of Employment and Workplace Relations (2007) 96 ALD 769; Re Hamal andSecretary, Department of Social Services (1993) 30 ALD 517; Re Secretary,Department of Family and Community Services and Bell (1998) 52 ALD 472. He was dismissed by Centrelink, his former employer, but it is unclear about the reason for this and I have not taken his dismissal into account in coming to my decision. No training is going to overcome his problem.

11. Therefore, I find that the applicant has a CITW and therefore satisfies s 94(1)(c)(i) of the Act.

12. I therefore find that, in the relevant period, the applicant qualified for DSP.

    DECISION

13. The decision under review is set aside and substituted with a decision that the Applicant was qualified to receive disability support pension on the date of his claim, being 15 October 2012, or within 13 weeks of that date.

I certify that the preceding 47 (forty-seven) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member

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

Associate

Dated 11 April 2014

Date of hearing	1 April 2014
Applicant	In person
Advocate for the Respondent	Ms S Mantaring, Department of Human Services