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

[2016] AATA 760

Kettul and Secretary, Department of Social Services (Social services second review) [2016] AATA 760 (29 September 2016)

Division	GENERAL DIVISION
File Number(s)	2016/0163
Re	Najah Kettul
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member A Poljak
Date	29 September 2016
Place	Sydney

The decision under review is affirmed

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Senior Member A Poljak

CATCHWORDS

SOCIAL SECURITY – disability support pension – cancellation of applicant’s pension – whether applicant’s conditions were fully diagnosed, treated and stabilised – whether applicant’s impairments are rated 20 points or more under the Impairment Tables – depression and PTSD – diabetes – osteoarthritis – shoulder condition – whether criteria for unlimited portability are met – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) ss 94, 1218AAA

Social Security (Administration) Act 1999 (Cth) ss 80, 118(13)

SECONDARY MATERIALS

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

REASONS FOR DECISION

Senior Member A Poljak

29 September 2016

1. On 11 December 2015, the Administrative Appeals Tribunal, Social Services and Child Support Division (“SSCSD”), affirmed the decision of the Department of Human Services (“Department”), made on 12 August 2015, to cancel the applicant’s disability support pension (“the Decision”).

2. The basis of the decision was that the applicant, Mr Kettul, ceased to satisfy the criteria for the disability support pension set out in section 94 of the Social Security Act 1991 (Cth) (“the Act”) at the date of cancellation on 12 August 2015 (“Date of Cancellation”). Mr Kettul seeks review of this decision.

3. Section 94 of the Act provides that to qualify for payment, a person must have a physical, intellectual or psychiatric impairment, or impairments, which rate 20 or more points according to the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Impairment Tables”); and a continuing inability to work as defined in the Act.

4. Mr Kettul had to satisfy these criteria at the date of cancellation.

5. In assessing Mr Kettul’s continued qualification for the disability support pension in 2015, the Department was required to apply the Impairment Tables, pursuant to sections 27(3) and (4) of the Act. The Impairment Tables are stricter than the tables which applied when Mr Kettul was first granted the disability support pension from December 2004.

6. The power of the Secretary to cancel Mr Kettul’s disability support pension is contained in section 80 of the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”). Pursuant to section 118(13) of the Administration Act, the cancellation decision takes effect on the day on which it was made, in this case, on the date of cancellation.

7. The Secretary accepts that Mr Kettul suffered from a number of conditions at the date of cancellation, the main conditions being depression, diabetes, osteoarthritis in his hips, knees and spine and a shoulder condition. He therefore satisfies section 94(1)(a) of the Act.

8. The issue to be determined in these proceedings is whether Mr Kettul satisfied sections 94(1)(b) and (c) of the Act at the date of cancellation, 12 August 2015, and at no other time.

9. In addition to the T-documents, lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth), a number of additional documents and medical reports were tendered at hearing including Medicare and PBS records which I have read and considered.

   IMPAIRMENT TABLES

10. The Impairment Tables include rules for assigning ratings to determine the level of functional impact of impairment. Impairment is defined in section 3 to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition”. 

11. Sections 6(3) and 6(4) provide that impairment can only be given a rating on the Impairment Tables if the condition is considered permanent. A condition is permanent if it has been fully diagnosed by an appropriately qualified medical practitioner, fully treated, fully stabilised, and it will more likely than not persist for more than two years.

12. In assessing whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, section 6(5) instructs that a decision-maker must consider whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred; and whether treatment is still continuing or is planned in the next two years.

13. Section 6(6) defines fully stabilised to mean that it is unlikely that there will be any significant functional improvement in a condition, with or without reasonable treatment, within the next two years.

14. Section 11 of the Impairment Tables instructs that an impairment rating can only be assigned in accordance with the ratings in each table and a rating cannot be assigned between consecutive impairment ratings. Significantly, section 11(1)(c) provides:

    (c) if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied (emphasis added).

15. For multiple conditions causing a common problem, sections 10(5) and 10(6) of the Impairment Tables provide:

    (5) Where two or more conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.

    (6) …it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once.

    DEPRESSION AND PTSD

16. The Secretary contends that at the date of cancellation, Mr Kettul did not suffer from a mental health condition which had been diagnosed by an appropriately qualified medical practitioner. I agree for the following reasons.

17. Table 5 of the Impairment Tables is to be used when a person has a permanent mental health condition resulting in functional impairment. Self-reporting of symptoms alone is insufficient and there must be corroborating evidence of the person’s impairment. The Introduction to Table 5 of the Impairment Tables provides (inter alia) that a diagnosis of a condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).

18. Dr Benjamin, consultant psychiatrist, opined in his report dated 31 August 2015:

    Najah has suffered with Posttraumatic Stress Disorder (PTSD) and depression in the past. These conditions appear to have settled down over the past ten years. He is currently upset about the cancellation of his Disability Support Pension, but his symptoms do not amount to a diagnosable psychiatric disorder. I did not prescribe him psychotropic medications nor did I make further arrangements to see him in the future (emphasis added).

19. In a report dated 29 January 2016, Dr Tsang, consultant psychiatrist, did not provide diagnosis for depression or PTSD. He did however note that Mr Kettul suffered from a residual grief reaction as a result of the death of his son.

20. It was plain at hearing, that Mr Kettul was very saddened by the loss of his son. While I am sympathetic to Mr Kettul’s grief, it is not a factor that I can take into account in determining his eligibility for the disability support pension. If he was suffering from a mental health condition as a result of his loss, I would expect to have before me a report from an appropriately qualified medical practitioner diagnosing the condition. I do not.

21. Mr Kettul’s general practitioner, Dr Said, has provided a number of reports to the Tribunal. He mentioned PTSD and depression on numerous occasions in his reports however as I have already stated, for me to consider the conditions fully diagnosed I need corroborating evidence by an appropriately qualified medical practitioner pursuant to the introduction to Table 5 of the Impairment Tables.

22. For these reasons I find Mr Kettul’s mental health condition was not fully diagnosed at the date of cancellation and therefore I am not required to determine whether or not the condition was fully treated and stabilised at that time.

    TYPE 2 DIABETES

23. The Secretary accepts, and I am satisfied, that at the date of cancellation Mr Kettul’s diabetes had been fully diagnosed, treated and stabilised. This is supported by the evidence of Dr Hoffman, endocrinologist, and Dr Said, Mr Kettul’s treating general practitioner.

24. The question is then what functional impact the condition has on Mr Kettul’s physical exertion and stamina. In assessing this functional impairment, Table 1 of the Impairment Tables is to be applied.

25. The bulk of the medical evidence shows that Mr Kettul’s diabetes is poorly controlled however, in a report dated 5 February 2016, Dr Donnelly states that Mr Kettul’s diabetes would not prevent him from working.

26. Mr Kettul undertook a job capacity assessment (“JCA”) on 23 April 2015. He reported at that time that his activity levels included daily visits from grandchildren with whom he plays games, taking his wife shopping, going out for coffee, going to the cemetery weekly and to church every Sunday, and travelling overseas.

27. At hearing, Mr Kettul advised that he could drive for only 10 to 15 minutes and would often go to the local coffee shop to see his brother for half an hour. When asked why he could only drive for 10 to 15 minutes he said that it was because that is how far away the coffee shop was from his house. He confirmed that he was able to take his wife shopping, played with his grandchildren on a daily basis and was able to go to church and the cemetery every Sunday. Mr Kettul confirmed at hearing that he was able to travel overseas, the most recent trip being in April 2016. Although Mr Kettul told the SSCSD that he travelled alone to Turkey and Indonesia in January 2015, at hearing he disputed this fact. However when pressed in cross examination, he was unable to provide details of his travelling companion. This was also the case for his most recent travel in April 2016. In any event, he said that on the last occasion he travelled from Turkey to Indonesia alone and stayed in Indonesia for 10 days. He said that during that trip he did usual tourist activities. He went shopping, to the beach, out to eat and caught taxis to tourist spots without any reported issues.

28. Based on this evidence and having regard to the descriptors contained in Table 1 of the Impairment Tables, I am satisfied that Mr Kettul’s functional impact as a result of his Type 2 diabetes warrants zero points under Table 1 of the Impairment Tables.

    OSTEOARTHRITIS IN HIPS, KNEES AND SPINE

29. The Secretary contends, and I am satisfied, that Mr Kettul’s osteoarthritis was not fully diagnosed, treated and stabilised at the date of cancellation. My reasons follow.

30. In a report dated 29 February 2016, Dr Hanna reported that Mr Kettul’s MRI of his cervical and lumbar spine revealed very minimal spondylitic changes. He reported that his total body bone scan revealed some osteoarthritic changes but no evidence of inflammatory arthritis or metastatic disease. Dr Hanna opined that the management plan at present is conservative and Mr Kettul should lose weight and have physiotherapy and hydrotherapy. At hearing, Mr Kettul advised that he did not follow up with hydrotherapy or physiotherapy as recommended.

31. In Westmead Hospital discharge notes from 14 January 2016, it is noted that Mr Kettul was admitted due to acute or chronic lower back pain with associated atypical chest pain. He underwent a lumbosacral spine x-ray which demonstrated mild early degenerative changes. There is no record of osteoarthritis.

32. Dr Said stated in a report dated 20 January 2016, that Mr Kettul suffered from osteoarthritis in his knees. There is no corroborating evidence before me to support such a diagnosis.

33. Since I am not satisfied that Mr Kettul’s osteoarthritis was fully diagnosed at the date of cancellation, I am therefore not required to determine whether or not the condition was fully treated and stabilised at that time. It follows that an impairment rating cannot be given to this condition.

    SHOULDER CONDITION

34. The Secretary contends, and I am satisfied, that Mr Kettul’s shoulder condition was not fully diagnosed, treated and stabilised at the date of cancellation. This is due to insufficient medical evidence.

35. Dr Said states in his report dated 18 May 2016, that Mr Kettul suffers from bilateral shoulder pain and that it is a long-standing condition. He reports that Mr Kettul is receiving treatment for his shoulders in the form of analgesia as needed. In a report dated 6 July 2016, Dr Said opined that Mr Kettul’s shoulder injury and limitation of his shoulder movements warranted five points. There are also a number of earlier reports of Dr Said which record bilateral shoulder pain as a condition from which Mr Kettul suffers, namely, reports dated 25 November 2004, 23 February 2005, 8 February 2008 and 18 August 2015. 

36. I do not have before me any corroborating evidence confirming a diagnosis of a shoulder condition, for instance a report from an allied health professional such as a physiotherapist or any results of diagnostic tests. I am therefore not satisfied that Mr Kettul’s shoulder condition was fully diagnosed at the cancellation date. It follows that a functional impairment rating cannot be given for this condition

    OTHER CONDITIONS

37. There are a raft of other conditions that Mr Kettul allegedly suffers from, including extensive psoriasis, hypertension, benign prostate hypertrophy, grief reaction, renal colic, dizziness, asthma, hyperlipidaemia, moderate hearing loss, cataracts and a head injury.

38. The Secretary contends, and I am satisfied, that there is insufficient medical evidence before me to determine whether, at the date of cancellation, any of these other conditions were fully diagnosed, treated and stabilised. I also note that even if these conditions were fully diagnosed, treated and stabilised at the cancellation date, there is no medical evidence that any of these conditions have a functional impact on Mr Kettul. It follows, that none of these other conditions warrant an impairment rating under the impairment tables.

    CONTINUING INABILITY TO WORK

39. As Mr Kettul’s impairments do not rate 20 or more points on the Impairment Tables it is not necessary to consider whether he had a continuing inability to work at the date of cancellation.

    UNLIMITED PORTABILITY

40. The qualification criteria for unlimited portability are contained in section 1218AAA of the Act. The section provides, inter alia, that a person must have a severe impairment for at least the next five years to qualify for unlimited portability.

41. Severe impairment is defined in section 94(3B) of the Act which provides that the person’s impairment is severe if the impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table. For all the reasons given above, it is plain that Mr Kettul does not have a severe impairment.

42. Having failed this qualification criterion, it is not necessary for me to consider any of the other criteria contained in section 1218AAA of the Act. Mr Kettul cannot be found to have unlimited portability.

    CONCLUSION

43. For all of the reasons given above, I affirm the decision under review.  Mr Kettul may apply for the disability support pension again at any time. 

I certify that the preceding 43 (forty -three) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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Associate

Dated 29 September 2016

Date(s) of hearing	19 September 2016
Applicant	In person
Solicitors for the Respondent	G Heggen, Department of Human Services