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

[2017] AATA 888

Kasum and Secretary, Department of Social Services (Social services second review) [2017] AATA 888 (30 January 2017)

Administrative Appeals Tribunal

File Number:            2016/3848
Date:  30 January 2017

ADMINISTRATIVE APPEALS TRIBUNAL               )
  )         No: 2016/3848
GENERAL DIVISION  )

Re: Zvonko Kasum
Applicant

And: Secretary, Department of Social Services
Respondent

DIRECTION

TRIBUNAL:               Mr D. J. Morris, Member

DATE:   9 June 2017

PLACE:                     Melbourne

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:

1. In paragraph 40 of the Reasons for Decision, remove the sentence

In this discussion, Dr Minogue records that Dr King conceded in regard to several of his previous assessments that a 30 point assignment probably does apply

and replace it with the sentence

In this discussion, Dr Minogue records that Dr King conceded in regard to several of his previous assessments that a 30 point assignment probably does not apply.

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

Mr D. J. Morris, Member

Division	GENERAL DIVISION
File Number	2016/3848
Re	Zvonko Kasum
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Mr D. J. Morris, Member
Date	30 January 2017
Place	Melbourne

The Tribunal affirms the decision under review.

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

D. J. Morris, Member

SOCIAL SERVICES – Disability Support Pension (DSP) – whether qualified – whether impairments fully diagnosed, fully treated and fully stabilised – Impairment Tables Determination requires both diagnosis and assessment of functional impact – relevant period for assessing qualification – possible deterioration – later medical reports not able to be taken into account – not qualified – decision affirmed.

Legislation

Administrative Appeals Tribunal Act 1975 s 37

Social Security Act 1991 s 94

Social Security (Administration) Act 1999 sch 2, cl 4

Secondary Materials

Social Security (Requirements and Guidelines-Active Participation for Disability Support Pension) Determination 2011
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

REASONS FOR DECISION

D. J. Morris, Member

30 January 2017

BACKGROUND DATES AND EVENTS

1. Mr Zvonko Kasum (the Applicant) applied for Disability Support Pension (DSP) on 23 November 2015.

2. Mr Kasum underwent a Job Capacity Assessment (JCA) on 13 January 2016 in connection with his application.

3. The Department of Social Services (the Department) rejected his claim on 25 January 2016.

4. He sought a review of that decision by an Authorised Review Officer (ARO), an officer in the Department not involved in the original decision.  On 9 April 2016 the ARO affirmed the original decision, on the grounds that the Applicant was not medically qualified for DSP.

5. Mr Kasum made an application to the Social Services and Child Support Division of the Tribunal for review of the decision.  That hearing took place on 1 July 2016 (AAT1) and the Tribunal affirmed the original decision.

6. On 20 July 2016 Mr Kasum then lodged an application for a second-tier review in the General Division of the Tribunal.

7. The hearing was held on 14 December 2016.  Mr Kasum represented himself, gave affirmed evidence and was cross-examined by the solicitor for the Respondent, Mr Lessing.  An interpreter in the Croatian language assisted the Tribunal.

8. The Respondent submitted documents under section 37 of the Administrative Appeals Tribunal Act 1975 (T-documents), which were admitted into evidence (Exhibit R3).

9. The Applicant submitted the following document which was admitted into evidence:

   ·Medical report dated 15 August 2016 from Dr Irina Kolesnikova, psychiatrist (Exhibit A1).

10. The Respondent lodged the following documents which were admitted into evidence:

    ·Medical report from Dr Michael King, clinical psychologist, dated 18 April 2016 (Exhibit R1).

    ·Centrelink Health Medical Professional Advisory Unit report of Dr Christopher Minogue, specialist occupational physician, dated 14 November 2016 (Exhibit R2).

11. Subsequent to the hearing, the Tribunal received a further written submission from the Respondent dated 10 January 2017 relating to the calculation of Mr Kasum’s active participation in a program of support in the period before he lodged his DSP application.

    THE LAW

    Qualification for DSP under the Act

12. The law applicable to the grant of DSP is the Social Security Act 1991 (the Act) and in particular section 94 of that Act.

13. In order to qualify for DSP, a person’s claim must be assessed under section 94(1) of the Act and the qualification criteria for DSP must be satisfied. For this reason, it must be established that the person applying has –

    (a)a physical, psychiatric or intellectual impairment; and

    (b)the impairment or impairments must attract a rating of 20 or more points under the Impairment Tables; and

    (c)a continuing inability to work.

14. The Impairment Tables referred to in section 94(1)(b) are found in a ministerial determination called the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Determination).  This Determination came into effect on 1 January 2012 and is applicable to assessments of qualification for DSP from that date.

15. The applicable provision relating to the Applicant’s ability to “work” under subsection 94(1)(c) and section 94(5) of the Act is work that is for at least 15 hours a week.

16. So, therefore, for a person to be qualified for DSP, the person must have impairment within the meaning of the Act.  Secondly, the impairment, or impairments if there is more than one, must be assigned a rating of 20 or more points under the Impairment Tables.  Thirdly, the person must have a continuing inability to work.

17. An important additional requirement is, if a person is assigned 20 or more points under one Impairment Table, that means the impairment is assessed to be a ‘severe’ impairment under section 94(3B). If a person is assigned 20 or more points under more than one Impairment Table, then the provisions of section 94(2) of the Act are applicable, which relate to a person participating in an approved program of support.

    What is the relevant period for considering the claim?

18. The Social Security (Administration) Act 1999 (the Administration Act) provides, at clause 4(1) of Schedule 2, as follows:

    If:

    (a)  a person (other than a detained person) makes a claim for a relevant social security payment; and

    (b)  the person is not, on the day on which the claim is made, qualified for the payment; and

    (c)  assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and

    (d)  the person becomes so qualified within that period;

    the claim is taken to be made on the first day on which the person is qualified for the social security payment.

    QUESTION AT ISSUE

19. Was Mr Kasum eligible for DSP on the date he lodged his claim (23 November 2015) or, applying the provisions of clause 4(1) of Schedule 2 of the Administration Act, if he was not eligible on that date did Mr Kasum become eligible on a date in the thirteen week period after the day of lodging the claim, which ended on 23 February 2016 (claim period)?

    APPLYING THE LAW

    Does the Applicant have a physical, intellectual or psychiatric impairment?

20. Dr Vu Le, general practitioner, in his medical report dated 17 November 2015 in relation to Mr Kasum’s DSP application listed Major Depression as the condition which has the most effect on the Applicant.  He cited a date of onset of this condition as February 2012.  Dr Le said Mr Kasum’s second condition was ‘moderately severe osteoarthritis of both knees’.  Dr Le also listed other medical conditions which he said were well-managed and caused minimal or limited impact on Mr Kasum’s ability to function, namely Type 2 diabetes mellitus; obstructive sleep apnoea; angina; and morbid obesity.

21. The Respondent in his submission accepted that Mr Kasum suffers from the following impairments: coronary heart disease and angina; depression; osteoarthritis of the knees; lower back pain; morbid obesity; non-insulin dependent diabetes; sleep apnoea; hypertension; hypercholesterolemia; and helicobacter gastritis.

22. On the basis of the medical evidence before the Tribunal, I find that Mr Kasum did satisfy section 94(1)(a) of the Act in the relevant period. He did have impairment, namely osteoarthritis of the knees; a heart condition; morbid obesity; type 2 diabetes; sleep apnoea; hypertension; hypercholesterolemia; helicobacter gastritis; lower back pain; and the condition which on the written medical evidence has the most impact, a depressive condition.

    If so, what is the correct rating under the Impairment Tables?

23. When considering how the Impairment Tables apply in a particular person’s case, the Tribunal must do so with reference to the Rules for applying the Impairment Tables set out in Part 2 of the Determination.

24. In particular, Rule 6(3) provides that an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent and the impairment that results from that condition is more likely than not, in the light of available evidence, to persist for more than 2 years.

25. In considering whether a condition is “permanent”, Rule 6(4) requires that a condition must be fully diagnosed by an appropriately qualified medical practitioner (and the criteria are different for some assessments), the condition must be fully treated and fully stabilised, and the condition is more likely than not, in light of available evidence, to persist for more than 2 years.

    Arthritis condition

26. The Tribunal had before it a radiology report dated 13 November 2015 prepared by Dr N. Tran for Dr Le which recorded “moderate bilateral knee osteoarthritis affecting especially both medial femorotibial compartment[s].”  Dr Le said that Mr Kasum’s knee problems caused him to resign from undertaking labouring work and that he was unable to walk or stand for prolonged periods of time.  He said that Mr Kasum would consider a total knee replacement.  Mr Kasum told the JCA he was taking prescribed medication and “plans to see a specialist”.  In the Determination, Rule 6 guides the application of the Impairment Tables. In terms of determining whether a particular condition is “fully stabilised”, I am required to consider whether the person has undertaken reasonable treatment.  Given the Applicant on his own evidence is planning to seek specialist advice on this condition and his general practitioner advises that Mr Kasum is considering knee replacement surgery, I find that his knee condition, although it clearly causes him significant discomfort, is diagnosed but not fully treated nor fully stabilised and so it cannot be assigned impairment points.

    Heart condition

27. Dr Le noted that Mr Kasum experiences intermittent chest pain on exertion.  Dr Le said that the Applicant’s angina condition is well-managed and causes minimal impact on his functional ability.  Mr Kasum told the JCA that he has some difficulty in household tasks such as cooking and has someone do ironing for him.  He sweats easily.  He told the hearing he washes dishes but “not properly” and can drive to Sunshine to shop.  He said he could no longer cook and when questioned about whether he could at the time of his claim, said he couldn’t then, but did not like to admit it.  He said he used to be able to hang washing on the line but finds he can do “less and less.”

28. On balance, I find that this condition is fully diagnosed, fully treated and fully stabilised.  The correct impairment table for considering this condition is Table 1 – Functions requiring Physical Exertion and Stamina.  Applying the Descriptors under this table to Mr Kasum’s oral evidence both to the JCA and at the hearing and the corroborating medical evidence, the descriptors for moderate functional impact are not met, and I find that there is a mild functional impact on his day to day activities and he should be assigned 5 points for this condition.

    Morbid obesity

29. Dr Le notes this condition and cites a body mass index (BMI) of 46 for Mr Kasum.  The Tribunal notes that a BMI over 40 classifies a person as “morbidly obese” on this index.  Mr Kasum reports breathlessness but it is not clear whether this may be linked to his angina or to his weight.  In any event, Dr Le cites this particular condition as having minimal impact on the Applicant’s functional ability.  On this evidence and on the evidence Mr Kasum gave at the hearing about the impact of this condition, while the Tribunal finds that it is fully diagnosed, fully treated and fully stabilised, the impact of this condition attracts zero points under the Determination.

    Diabetes condition

30. Dr Le’s medical report records that Mr Kasum has non-insulin dependent diabetes.  Dr Le states that in his opinion this causes lethargy but classifies it as a condition that, in his opinion, has minimal impact.  The Tribunal notes that Mr Kasum continues to take medication and finds that this condition is fully diagnosed, fully treated and fully stabilised but causes little impact on Mr Kasum’s ability to function day to day and so, under Rule 11(5) it must be assigned zero impairment points.

    Sleep apnoea

31. Dr Le’s medical report records Mr Kasum suffering from obstructive sleep apnoea and says that Mr Kasum experiences ongoing daytime somnolence and “will consider CPAP” [continuous positive airway pressure].  The Tribunal finds that, given the Applicant had not undertaken reasonable treatment in the relevant period for this condition and was still considering treatment options with his doctor, although diagnosed, it cannot be considered to be fully treated or fully stabilised, and so cannot be assigned impairment points under the Determination.

    Hypertension and hypercholesterolemia

32. Dr Le reported Mr Kasum’s blood pressure condition and that he was taking regular medication for it.  He also reported the Applicant’s hypercholesterolemia and also that he continues to take prescribed medication for that condition.  The Tribunal finds that these conditions are fully diagnosed, fully treated and fully stabilised and, noting the written evidence of Dr Le which was not disputed by Mr Kasum, finds that as they cause minimal functional impact on the Applicant, they must be assigned zero impairment points under Rule 11(5) of the Determination.

    Helicobacter gastritis

33. Mr Kasum told the Job Capacity Assessor (JCA) on 13 January 2016 that he had been taking medication for his gastritis, which caused him stomach upsets and caused him to avoid certain foods, but he had ceased taking his medication one year ago.  As such, while I find that this condition is fully diagnosed, I cannot find that it is fully treated or fully stabilised in the relevant period as Mr Kasum is not undertaking what would be regarded as reasonable treatment.  It therefore cannot be assigned points under the Impairment Tables.

    Lower back pain condition

34. This condition was considered by the JCA in January 2016.  It is not mentioned as a medical condition suffered by Mr Kasum by Dr Le in his medical report of 13 November 2015.  Mr Kasum told AAT1 that he had had treatment in the past from a chiropractor and he had had Thai massage and found this helped him.  He told AAT1 he was conscious that he should lose weight and “may need an operation”.  While I accept Mr Kasum’s evidence that his back causes him significant pain, I am not satisfied that this condition is fully diagnosed, fully treated or fully stabilised in the relevant period owing to the continuing and intermittent nature of the treatment Mr Kasum is undergoing and his own evidence that losing weight may assist in relieving elements of this condition.  I therefore find that his back condition cannot be assigned impairment points under the Determination.

    Depressive condition

35. The Applicant submitted to the Tribunal that his mental health condition has the most impact on his ability to function.  He cited it as the main reason he had given up his plastering business and ceased to work, although his knee arthritis also made labouring a significant challenge.  As mentioned above, Dr Le recorded Major Depression as the condition which has the most impact on Mr Kasum. 

36. The Determination specifies Table 5 – Mental Health Function, as the relevant Impairment Table for assessing functional impairment due to a mental health condition.  The Determination stipulates that the diagnosis must be made by an appropriately qualified medical practitioner, including a psychiatrist, with evidence from a clinical psychologist if the diagnosis has not been made by a psychiatrist.

37. The Tribunal had before it a medical letter to Dr Le dated 7 November 2012 from Dr Ashok Singh, consultant psychiatrist.  In that letter, Dr Singh said after examining Mr Kasum his assessment “suggests that Zvenko suffers from Adjustment disorder associated with depressed mood” and that his physical health, obesity and unemployment is affecting his MSE [mental status examination].  Dr Singh started Mr Kasum on medication (Pristiq and Largectil) and told Dr Le he would write to him about Mr Kasum’s progress periodically.

38. It is not evident that Mr Kasum continued to see Dr Singh.  He told the January 2016 JCA that he was “taking his medication on and off and ceased taking this medication one year ago as it does not work”. 

39. The Tribunal had before it a psychological report from Dr Michael King, clinical psychologist, dated 28 October 2015.  He states that Mr Kasum was referred to him on 14 September 2015 for psychological review. However, in a subsequent document dated 18 April 2016 Dr King wrote “Mr Kasum first attended the clinical psychological practice on 26 February 2014.”   Mr Kasum in evidence before the Tribunal said his recollection was that he first saw Dr King sometime in 2013.  The Tribunal considers that the date of 26 February 2014 is likely to be the accurate date of the first consultation with Dr King. 

40. Dr King wrote in his October 2015 report that Mr Kasum’s “level of disability is assessed as greater than 30 points”. The Tribunal had before it a report by Dr Christopher Minogue, a specialist occupational physician engaged by the Department, dated 14 November 2016.  Dr Minogue was asked to review all the medical reports relating to Mr Kasum.  In the course of undertaking this review, Dr Minogue contacted Dr King to discuss his view of a “30 point” assignment under the impairment tables in the light of evidence from Mr Kasum himself to the JCA.  In this discussion, Dr Minogue records that Dr King conceded in regard to several of his previous assessments that a 30 point assignment probably does not apply.  He further records that the discussion indicated that, in Dr King’s opinion, an impairment rating of 20 points under Table 5 does apply.

41. Dr Minogue concluded that, even if Dr King’s assessment that Mr Kasum’s depressive condition is fully diagnosed, fully treated, and fully stabilised, he considered that the available evidence on the level of functional impact is not sufficiently consistent for a reliable impairment rating under Table 5 to be assigned.

42. The Tribunal notes that Mr Kasum lives alone, although he said he does have a carer-friend who visits him most days.  He has travelled several times abroad to Croatia and once to Thailand in recent years, accompanied by his carer-friend.  He told the Tribunal that he drives to the local shops for groceries and can undertake certain regular household tasks.  He said he previously could cook and hang washing on the line, but no longer could undertake these tasks.  It would seem that there is, on this evidence, deterioration in his ability to cope since the time of his DSP claim.

1. Dr King’s original assignment of “30 points” under Table 5 with respect to its descriptors is not plausible on Mr Kasum’s own evidence to the Tribunal about his independent living (albeit with regular visits and support) and his travel abroad and the fact that he was actually working full-time at the time Dr King assessed he was unable to work.  It would therefore be understandable for Dr King to concede many of these individual assessments should be lower in any subsequent discussion with Dr Minogue.  The Tribunal understands that Dr King performed psychometric testing and he may well be right in concluding that Mr Kasum has a significant psychological condition, but in deciding whether a person is qualified for DSP I must take into account not solely medical diagnoses but also an objective assessment of functional impact.  These must be married together in considering a person’s inability to work before an assignment of impairment points can be properly made under the Determination.  Dr Minogue’s evidence of Dr King’s more recent verbal concession that 20 points are nevertheless still assignable to the Applicant under Table 5 is still not sustainable in satisfying the Determination which requires that a person must have severe difficulties with most of the tasks listed in the Descriptors for the impairment to have a severe functional impact on mental health function.  On the evidence Mr Kasum did not have such difficulties in the claim period.

2. On balance, I am not persuaded that Mr Kasum’s mental health condition could be said to be fully treated and fully stabilised in the claim period and it therefore cannot be given an impairment rating (see Rule 6(3) and (4)).  He has a range of other health conditions which medical reports state contribute adversely to his mental state, including obesity and sleep apnoea (and Mr Kasum gave evidence about his wakefulness) and pain from his knee arthritis.

3. Mr Kasum also saw Dr Irina Kolesnikova, consultant psychiatrist, for medical assessment and the Tribunal had her report dated 15 August 2016.  She diagnosed Major depressive disorder with anxious distress and poor anger management. However, there is no evidence that Dr Kolesnikova had seen the Applicant in the relevant period and so, while I accept her professional opinion, I cannot take this more recent assessment into account under the provisions of the Administration Act, although it may be important medical evidence relevant to a fresh claim for DSP.

   CONCLUSION

4. I find that Mr Kasum should be allocated a total of 5 impairment points under the Impairment Tables (Table 1 – Functions requiring Physical Exertion and Stamina). Section 94(1)(b) requires that for a person to be qualified for DSP he or she must be assigned 20 or more impairment points. If not, the application cannot succeed.

5. For completeness, I record that the Respondent corrected evidence submitted to the Tribunal in his Statement of Issues, Facts and Contentions after checking the Department’s records of Mr Kasum’s participation in a program of support.  The analysis showed that the Applicant had actively participated for 483 days in the 36 months prior to the date of his DSP application, which is less than the requirement of at least 18 months under the Social Security (Requirements and Guidelines-Active Participation for Disability Support Pension) Determination 2011.  So even if I was to find that Mr Kasum accumulated 20 more points under more than one Impairment Table (which I have not), he did not satisfy section 94(1)(c) of the Act in relation to having a continuing inability to work because he had not actively participated in a program of support under section 94(3C) of the Act.

6. Section 94(1) is a conjunctive subsection of the Act. That means that each part of it must be satisfied for a person to be qualified for DSP. The disappointing outcome for the Applicant is that this claim for DSP fails. As Mr Kasum did not satisfy each part of the subsection in the claim period, the original decision was correct; he was not qualified for DSP at that time.

   DECISION

7. The Tribunal affirms the decision under review.

50.      

51.     I certify that the preceding 49 (forty-nine) paragraphs are a true copy of the reasons for the decision herein of Member D. J. Morris.

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

Associate

Dated 30 January 2017

Date of hearing	14 December 2016
Date of last submission	10 January 2017
Applicant	In person
Solicitor for Respondent	Sparke Helmore, Mr J Lessing