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

[2015] AATA 917

Karagiannis and Secretary, Department of Social Services (Social services second review) [2015] AATA 917 (27 November 2015)

Division	GENERAL DIVISION
File Number	2015/0053
Re	Chris Karagiannis
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Miss E A Shanahan, Member
Date	27 November 2015
Place	Melbourne

The Tribunal affirms the decision under review.

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

Miss EA Shanahan, Member

SOCIAL SECURITY – claim for disability support pension – chronic fatigue syndrome and sleep apnoea with symptomatic overlap – impairment rating of 10 points attracted – other conditions not fully diagnosed, treated and stabilised – decision affirmed

Legislation

Social Security Act 1991

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

Cases

Re Fanning and Secretary, Department of Social Services [2014] AATA 447

REASONS FOR DECISION

Miss E A Shanahan

30 November 2015

1. Mr Karagiannis completed a claim for a disability support pension (DSP) on 10 June 2014.  His claim was supported by a DSP medical report completed by Dr Jonathan Burdon, consultant respiratory physician, dated 16 June 2014.  The medical conditions considered to be causing his incapacity for work were: chronic fatigue syndrome, obstructive sleep apnoea and three further conditions certified as causing minimal or limited impact on Mr Karagiannis’ ability to function.  These were periodic limb movement syndrome, depression and a peripheral neuropathy. Centrelink, the service provider for the Secretary, Department of Social Services, received Mr Karagiannis’ claim on 20 June 2014.

2. When Mr Karagiannis lodged an earlier claim for DSP, on 9 May 2013, the only medical condition cited was anxiety and depression of three years’ duration. According to the reporting general practitioner Dr Bond, this had been diagnosed by Mr Karagiannis’ previous general practitioner.  This claim was rejected.

3. Following a job capacity assessment (JCA) on 4 July 2014, Mr Karagiannis received a recommended impairment rating of 10 points arising from chronic fatigue syndrome. However, no other reported condition was assessed as  fully diagnosed, treated and stabilised as required by the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables).  Accordingly, Centrelink rejected Mr Karagiannis’ claim for DSP. At his request this decision was reviewed by a Centrelink authorised review officer (ARO) who affirmed the rejection on 3 October 2014. 

4. Mr Karagiannis lodged an application for review of the ARO’s decision with the Social Security Appeals Tribunal (SSAT) on 23 October 2014 and the matter was heard by telephone on 4 December 2014.  The SSAT affirmed the reviewable decision.

5. Mr Karagiannis submitted an application for review of the SSAT decision by the Administrative Appeals Tribunal on 7 January 2015.  The matter was listed for hearing on 16 September 2015.  Mr Karagiannis, who was to represent himself, sought an adjournment on 10 September as the person who had planned to assist him at the hearing was no longer available.  The request for adjournment was refused as the reasons Mr Karagiannis gave did not meet the Tribunal’s procedural requirements for adjournment.  Mr Karagiannis expressed his extreme disappointment at the refusal of his request but chose to have the matter proceed on the papers.  The Secretary, Department of Social Services (the Secretary) agreed to have the matter heard on the papers but requested a three week interval to allow for written submissions to be prepared.  The Tribunal made its deliberations, based on the documentary evidence, on 6 October 2015. 

6. Documentary evidence consisted of the T-documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Exhibit R1), a more recent report from Dr Jonathan Burdon dated 19 February 2015 (Exhibit A1), and a further report from Dr Jeff Wilcox, general practitioner, dated 2 March 2015 (Exhibit A2). 

   BACKGROUND TO THE APPLICATION

7. In his first claim for DSP lodged on 9 May 2013, Mr Karagiannis listed his disabilities as depression, fatigue, inability to concentrate, insomnia, communication issues and an avoidant personality disorder.  He also advised that he was shortly to undergo a septoplasty and inferior turbinectomy at The Royal Victorian Eye and Ear Hospital to assist with his breathing.  The supporting medical report from Dr Allan Bond, then his general practitioner, stated: patient reports depression + anxiety for more than three years.  The current treatment was stated to be NIL although Avanza an anti-depressive, had been prescribed in 2011.  Mr Karagiannis ceased taking the Avanza because of its side effects. 

8. The major symptoms documented were fatigue, lack of energy and poor motivation.  This claim was rejected on the basis that no diagnosis of a mental disorder had been made by a psychiatrist or a clinical psychologist, as the legislation requires.

9. The second claim was lodged on 10 June 2014.  Dr Jonathon Burdon, respiratory physician, completed the supporting medical statement.  Dr Burdon also provided a letter addressed TO WHOM IT MAY CONCERN dated 16 June 2014 (T13) expanding on the content of the DSP form.  Dr Burdon provided the diagnosis of chronic fatigue syndrome present for many years, on 14 October 2013.  Mr Karagiannis’ current symptoms were described as chronic tiredness + fatigue despite treatment (successful) for sleep disorders.  The chronic fatigue syndrome had resulted in reduced endurance [the] need to rest regularly and the need for daytime naps.  Whilst the prognosis was considered uncertain in terms of Mr Karagiannis’ ability to function it was thought unlikely to improve. 

10. Dr Burdon also considered the obstructive sleep apnoea to have been present for many years, the diagnosis having been confirmed by himself.  On 14 March 2014 Mr Karagiannis started treatment with continuous positive airways pressure (CPAP) therapy which was to continue indefinitely.  A repeat sleep study was to be performed in approximately six weeks’ time.  The symptoms ascribed to Mr Karagiannis’ sleep apnoea were tiredness and daytime sleepiness.  Dr Burdon considered that the continuing use of CPAP would result in Mr Karagiannis’ sleep apnoea being controlled without it affecting the underlying chronic fatigue syndrome.  The other conditions were considered to be of minimal or limited impact on Mr Karagiannis’ ability to function.  Dr Burdon certified Mr Karagiannis temporarily unfit for work or study from 12 June 2014 to 31 December 2014. 

11. In his letter of the same date, Dr Burdon had noted that Mr Karagiannis had not worked for two years for a variety of reasons, including his having been a carer for both his parents. Mr Karagiannis reported significant snoring and fatigue.  A sleep study performed on 27 February 2014 showed moderately severe obstructive sleep apnoea and significant periodic limb movement syndrome (also known as restless legs syndrome). The periodic limb movement was treated with Madopar (Benserazide Hydrochloride) and Levodopa, a drug used to control symptoms like those caused by Parkinson’s disease. As a result of this medication, Mr Karagiannis noted improvement in his restless leg syndrome.  Moreover, monitoring of his CPAP therapy has revealed that this controls his sleep apnoea.  Despite this, Mr Karagiannis’ tiredness and fatigue during the day did not improve. (The Tribunal notes that Madopar should be used with caution in persons with depression.) 

12. Dr Burdon had referred Mr Karagiannis to the neurology clinic at St Vincent’s Public Hospital for further investigation of his peripheral neuropathy.  Dr Burdon provided a further report on 19 February 2015 but did not state when he actually saw Mr Karagiannis.  The specialist once more confirmed the presence of moderate to severe obstructive sleep apnoea, periodic limb movement syndrome, and chronic fatigue syndrome. He stated that these conditions were ongoing and permanent.

13. Dr Wilcox provided a short report on 31 October 2014 (T17). Dr Wilcox appears to be Mr Karagiannis’ current general practitioner.  This report,  entitled Information needed for Disability Support Pension medical appeal provides a diagnosis of obstructive sleep apnoea and chronic fatigue syndrome, which, in the doctor’s opinion, would attract an impairment rating of 20 points under Table 1 of the Impairment Tables − that is, a severe impact rendering Mr Karagiannis unable to work a continuous shift of three hours.  Dr Wilcox also certified that Mr Karagiannis would never be able to work 15 hours per week, nor would his condition improve over the next two years.  Dr Wilcox provided a further report of 2 March 2015 (Exhibit A2), the contents of which is identical to that of his earlier report except that it states that Mr Karagiannis is now unable to perform light household duties like laundry, without having frequent rest breaks.

14. In his evidence before the SSAT Mr Karagiannis informed the Tribunal that he had ceased using the CPAP machine as he had difficulty tolerating the mask and the noise generated.  It would appear that he had not informed Dr Burdon that he had ceased using the CPAP by 4 December 2014 as, in his report of 2 February 2015, Dr Burdon was under the impression that Mr Karagiannis’ CPAP use was continuing.

15. The Tribunal notes that Adrian Pappas, the Centrelink ARO, spoke with Mr Karagiannis at 11.30am on 3 October 2014.  Mr Pappas says the duration of the telephone conversation was 30 minutes.  Mr Karagiannis reported that he was fully independent with daily living activities and was responsible for household tasks although his father occasionally assisted him.  He was able to drive, did his own shopping and could walk for between 30 to 60 minutes.  Mr Karagiannis did however say that the Medopar he was taking for his restless legs syndrome tended to make him feel groggy (T16, p159).

    RELEVANT LEGISLATION

16. The qualifications for DSP are outlined in s 94 of the Social Security Act 1991 (the Act):

    94  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.

17. A severe impairment − that is, an impairment rating of 20 points or more for a single condition under a single Impairment Table − will excuse the applicant for DSP from active participation in a Program of Support as required under legislation introduced with effect 1 January 2012 (Social Security (Requirements and Guidelines – active participation for Disability Support Pension) Determination 2011).

    SUBMISSIONS

    Mr Karagiannis

18. In his written submissions of 15 September 2015, Mr Karagiannis expressed his disappointment at the refusal of his request for an adjournment, stating this was a further example of the level and extent of ignorance of [his] primary physical condition and the associated non-physical condition.  Mr Karagiannis acknowledged that his submissions had been prepared with the assistance of Mr Patrick Carson. 

19. Mr Karagiannis contended that his medical condition was both widely misunderstood and treatment resistant.  He asked the Tribunal to take a non-objective approach by considering and preferring his subjective evidence as to the debilitating effect of his illness.  Mr Karagiannis argued that only the sufferer of chronic fatigue syndrome was in any position to know and understand its impact and in his opinion it was worthy of at least 20 impairment points.  He referred the Tribunal to Emerge Australia, a website dealing with chronic fatigue syndrome, as well as to a chapter in a book by Professor John Dwyer entitled The Body at War.

20. Mr Karagiannis also contended that his credibility in relation to his conditions should not be in issue. In addition, he drew the Tribunal’s attention to the unfairness of refusing the request for an adjournment when the Secretary had postponed two recent appointments (the nature of which has not been revealed) leading to a delay of what appears to be a more recent claim for the DSP.  Mr Karagiannis concluded by asking the Tribunal to depart from the evidentiary norm given the unusual and unique factual circumstances of his case. 

    THE SECRETARY

21. The Secretary relied on the content of his Statement of Facts and Contentions and responded to Mr Karagiannis’ written submissions. In the Statement of Facts and Contentions the issue before the Tribunal was stated to be whether Mr Karagiannis qualified for the DSP in accordance with s 94 of the Act, namely, on 10 June 2014 (the date of his application) or within 13 weeks of that date.

22. In response to Mr Karagiannis’ submissions the Secretary contended that the Tribunal was unable to determine the level of functional impairment resulting from his chronic fatigue syndrome based on Mr Karagiannis’ evidence alone. There is case law to that effect and the rules for applying the Impairment Tables clearly state that self-reported symptoms alone are insufficient in determining the appropriate level of impairment and that corroborating evidence is required.

23. The Secretary identified Emerge Australia as a private organisation that seeks to raise the awareness and advocate on behalf of people that suffer chronic fatigue syndrome.  The Secretary could not comment on The Body at War, the book to which Mr Karagiannis referred, as it is not publicly available and no copy has been lodged with the Tribunal or served on the Secretary.   

24. The Secretary was unable to comment on Mr Karagiannis’ submission regarding his credibility, other than to point to the legislative requirement for corroborating evidence of any impairment.  This statement also applies to Mr Karagiannis’ contention that only the sufferer of a condition is in a position to know its impact and therefore its worth in terms of impairment point ratings.  In his Statement of Facts and Contentions the Secretary outlined the history of the application which corresponds to the detail provided under BACKGROUND TO THE APPLICATION and accepted Dr Burdon’s diagnosis of chronic fatigue syndrome, while noting that no treatment of this condition has been provided. 

25. The Secretary also pointed out that the symptoms of chronic fatigue syndrome and the sequelae of obstructive sleep disorder are similar in terms of producing daytime sleepiness and fatigue.  While Dr Burdon stated that Mr Karagiannis’ obstructive sleep disorder is completely controlled by CPAP he seemed to be unaware that Mr Karagiannis has ceased using the CPAP machine.  As a result, his sleep apnoea cannot be considered fully treated and stabilised.   Based on Mr Karagiannis’ evidence to the SSAT and to the ARO on 3 October 2014, he did not meet the criteria of Table 1 of the Impairment Tables for an impairment rating of 20 points on the relevant date.  The Secretary reiterated that his other conditions − peripheral neuropathy, depression and periodic leg movement syndrome − have minimal or no impact on Mr Karagiannis’ capacity for work. 

26. The Secretary submitted that as Mr Karagiannis did not have an impairment rating of 20 points or more he did not qualify for the DSP. But should the Tribunal find that he did attract a 20 point impairment rating, the Tribunal should consider whether he had a continuing inability to work as defined in s 94(2) and s 94(5) of the Act; and whether he has met the requirement to have actively participated in a Program of Support. Mr Karagiannis did participate in a Program of Support for a period of nine months within the three years before the qualification period. However, Part 2 of the Program of Support Determination in the Act requires that participation in a program must be for at least 18 months. 

27. The Secretary also contended that Mr Karagiannis had worked in customer service roles for more than seven years despite his claim that he had symptoms of fatigue throughout that time.  He had reduced his work hours in 2010 to care for his mother and ceased work in 2011.  No evidence had been tendered to suggest that his condition deteriorated in 2011.  The Secretary’s contention was supported by the JCA report of 4 July 2014 which found that the Applicant had the capacity to work 15 to 22 hours per week with intervention in the next two years.

    THE TRIBUNAL’S DELIBERATIONS

28. The Tribunal determines that Mr Karagiannis satisfies s 94(1)(a) of the Act as he has been diagnosed with chronic fatigue syndrome, obstructive sleep apnoea, depression, restless leg syndrome and a peripheral neuropathy. The restless leg syndrome and the depression have been assessed as not contributing to his incapacity for work and the cause of the peripheral neuropathy is still to be fully investigated.

29. While it is more common for rheumatologists to investigate, diagnose and certify the presence of chronic fatigue syndrome, the Tribunal accepts Dr Burdon’s confirmation of that diagnosis.  However, the Tribunal notes that Mr Karagiannis has had no treatment for this condition other than what is termed supportive and expectant.  The Tribunal takes this to indicate that there is a possibility that Mr Karagiannis’ chronic fatigue syndrome will improve, enabling him to return to work. This outcome has been reported in the medical literature in approximately 40 per cent of persons with this condition. 

30. Dr Burdon has pointed out the overlap in symptomatology between his chronic fatigue syndrome and Mr Karagiannis’ obstructive sleep apnoea, in that they both produce daytime fatigue and sleepiness.  Dr Burdon’s expert opinion supports the guidelines to the Act which provide for the symptoms of both conditions to be assessed under Table 1 of the Impairment Tables.

31. In light of Mr Karagiannis’ evidence before the SSAT and the information he provided to the ARO on 3 October 2014 about his levels of activity in daily living, his ability to drive his car, shop at supermarkets and walk for between 30 and 60 minutes, the award of 10 points under Table 1 of the Impairment Tables appears to be accurate, at least at the time of the decision and within the 13 weeks thereafter.

32. As Mr Karagiannis has only attracted a 10 point impairment rating he does not satisfy s 94(1)(b) and it is not necessary for the Tribunal to consider whether he has a continuing inability to work.

33. It may be appropriate for Mr Karagiannis to lodge a new application for DSP if he has now amassed further objective evidence regarding the various medical conditions that have been diagnosed.  Some of his communications suggest that he might already have done so.

34. There is a long-established precedent in decisions of this Tribunal and the Federal Court which have found that self-reported symptoms alone are not adequate for determining an impairment rating and that corroborative evidence is required. (Re Fanning and Secretary, Department of Social Services [2014] AATA 447).

35. The Tribunal has considered all of Mr Karagiannis’ submissions and, in accordance with precedent, it is required to make its decision on the basis of objective evidence rather than the Applicant’s own estimation of the severity of his impairment.  While Mr Karagiannis has referred the Tribunal to an internet website and a book, there is a large volume of medical research and guidelines from the Royal Australasian College of Physicians as to the incidence, aetiology, treatment and in particular the diagnosis by exclusion of chronic fatigue syndrome.  The volume of medical literature is such that the Tribunal does not accept Mr Karagiannis’ statement that the medical profession is ignorant with regard to the diagnosis of this condition.

1. The Tribunal is bound by the Act and the requirements outlined in the Guides, the Impairment Tables and the Program of Support regulations and must make its decision within the proper constraints of the legislation.

2. The Tribunal affirms the decision under review.

I certify that the preceding 37 (thirty -seven) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan

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

Associate

Dated 27 November 2015

Date of hearing	6 October 2015
Applicant	In person
Solicitors for the Respondent	Ms K Latta, Sparke Helmore