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

[2016] AATA 627

Konopka; Secretary, Department of Social Services and (Social services second review) [2016] AATA 627 (23 August 2016)

Division	GENERAL DIVISION
File Number	2014/4250
Re	Secretary, Department of Social Services
APPLICANT
And	Danielle Konopka
RESPONDENT

DECISION

Tribunal	Deputy President K Bean
Date	23 August 2016
Place	Adelaide

The decision under review is set aside and in substitution for that decision, it is decided that Ms Konopka was not qualified for disability support pension at the date of her claim or within 13 weeks of that date.

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Deputy President K Bean

CATCHWORDS

SOCIAL SECURITY – Disability support pension – Whether respondent satisfies qualification requirements for DSP – Whether respondent had a continuing inability to work within the meaning of section 94 of the Social Security Act 1991 – Definition of “designated provider” – Whether treatment to maintain self-employment amounts to “program of support” – Decision under review set aside.

LEGISLATION

Social Security Act 1991, s 94

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

Deputy President K Bean

23 August 2016

1. In March 2010, the respondent in this matter, Ms Konopka, unfortunately sustained serious injuries to her right leg, knee and ankle. She suffered these injuries as a result of falling into an open Telstra inspection/work pit on the footpath at night outside her family home.[1] She is currently pursuing a common law claim against Telstra in respect of the injuries she sustained as a result of falling into the pit, which it seems was inadequately fenced off and/or marked.

   [1]     Exhibit 1, T22/276.

2. Unsurprisingly, this incident has had a very significant effect on Ms Konopka’s life, although she has done her best to minimise this. She has continued to pursue her goals and aspirations, and has continued to work in her chosen occupation of hairdressing, albeit with considerable support from her family.

3. Nevertheless, having regard to the significant impact of her injuries upon her earning capacity, on 28 March 2014, Ms Konopka lodged a claim for disability support pension (DSP).

4. That claim was rejected both initially and upon review by Centrelink. However, on 23 July 2014, the then Social Security Appeals Tribunal (SSAT) decided that Ms Konopka was eligible to receive DSP from the date of her claim on 28 March 2014. That Tribunal accordingly set aside the decision of Centrelink, and substituted a decision that Ms Konopka satisfied the applicable requirements.

5. However, on 18 August 2014, the Secretary, Department of Social Services (the Secretary) lodged an application with this Tribunal for review of that decision, contending that the SSAT was in error and Ms Konopka did not satisfy the qualification requirements for DSP.

   ISSUE

6. It follows that the issue for me is whether Ms Konopka was qualified for DSP as at the date of her claim on 28 March 2014 or within 13 weeks of that date (the assessment period).[2]

   [2]     Social Security (Administration) Act 1999, Schedule 2, cl 4.

   LEGISLATION

7. Qualification for DSP is governed by s 94 of the Social Security Act 1991 (the Act) and in order to qualify for DSP, Ms Konopka must establish that, as at the assessment period:

   (a)She had a physical, intellectual or psychiatric impairment;

   (b)That impairment rated at least 20 points under the Impairment Tables;[3] and

   (c)She had a “continuing inability to work” within the meaning of s 94 because of the impairment.

   [3]     This is reference to the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011.

8. In the circumstances of this matter, there is no dispute and I also accept that at the relevant time Ms Konopka satisfied criteria (a) and (b) set out above. It is agreed, and I accept, that at the relevant time, Ms Konopka was suffering from conditions including a pain syndrome, depression and degenerative changes in her back resulting in impairments of 10 points under Table 3, 5 points under Table 5 and 5 points under Table 4, giving a total of 20 points.

9. What is in dispute, however, is whether at the relevant time Ms Konopka had a “continuing inability to work” within the meaning of s 94 because of her impairments.

   DID MS KONOPKA HAVE A CONTINUING INABILITY TO WORK?

   The requirements

10. Where a claimant does not have a “severe impairment” (meaning an impairment attracting 20 points under one Table) subs 94(2)(aa) of the Act requires that in order to satisfy this requirement, they must have “actively participated in a program of support within the meaning of subs 94(3C)”. In addition, they must establish that their impairment is “of itself sufficient to prevent” them from working at least 15 hours per week in any employment independently of a program of support “within the next 2 years”.[4] They must also show that their impairment is sufficient to prevent them from undertaking a training activity during the next 2 years, or that such a training activity is unlikely to enable them to do any work independently of a program of support within the next 2 years.[5]

    [4] See subs 94(2)(a).

    [5] See subs 94(2)(b).

11. I will first consider the program of support requirements before turning if necessary to the question of whether Ms Konopka’s impairments prevented her from working at least 15 hours per week within 2 years.

    Did Ms Konopka meet the program of support requirements?

12. The Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (the Determination) made on 23 August 2011 is the legislative instrument which, pursuant to subs 94(3C) specifies the requirements for a person to have “actively participated” in a program of support. The most relevant requirements of the Determination are as follows:

    5.      Requirements for active participation

    (1)     A person has actively participated in a program of support if:

    (a)     the person has:

    (i)    complied with the requirements of the program of support; and

    (ii)participated in a program of support during the 36 months ending immediately before the relevant date of claim; and

    (b)subsection (2), (3), (4) or (5) is satisfied in relation to the person and the program of support; and

    (c)subsection (6) is satisfied in relation to the person and the program of support.

    (2)This subsection is satisfied in relation to a person and a program of support if the person participated in the program of support for at least 18 months.

    …

    (6)This subsection is satisfied in relation to a person and a program of support if the person provides the Secretary with the following in relation to the program of support:

    (a)     the details of the designated provider of the program;

    (b)the dates when the person began the program and, if applicable, ceased the program;

    (c)the reason for ceasing the program (if any);

    (d)any period of non-participation in the program including exemptions, reliefs, or suspensions from the program;

    (e)the reason for any period of non-participation in the program;

    (f)the terms of the program that were specifically tailored to address the person’s level of impairment, individual needs, barriers to employment and capacity to work;

    (g)the terms with which the person had to comply in order to satisfy the program requirements and the level of compliance with those terms;

    (h)the vocational, rehabilitation or employment activities the person participated in as a part of the program;

    (i)the frequency of contact that the person had with the designated provider of the program.

    Part 3Guidelines

    6.Program of support

    In deciding whether the Secretary is satisfied that a person has actively participated in a program of support for the purposes of paragraph 94(2)(aa) of the Act, the Secretary must consider whether the program of support:

    (a)     was provided by a designated provider; and

    (b)was specifically tailored to 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 (including self-employment); and

    (d)     includes at least one of the following activities;

    (i)    job search;

    (ii)   job preparation;

    (iii)  education and training;

    (iv)  work experience;

    (v)   employment;

    (vi)  return to work;

    (vii) vocational or occupational rehabilitation;

    (viii)  injury management;

    (ix)an activity designed to assist the person to return to, maintain or obtain employment.

13. Section 3 in Part 1 of the Determination defines “designated provider” as follows:

    designated provider means any of the following:

    (a)  a Job Services Australia provider;

    (b)  a Disability Employment Service;

    (c)  an Australian Disability Enterprise;

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

    (e)  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;

    (f)    a provider authorised by an insurer as a result of a claim under a contract of insurance for an accident (including a motor vehicle accident), sickness of other trauma;

    (g)  a provider that provides a program that satisfies paragraph (a) and subparagraph (b)(ii) of the definition of program of support in subsection 94(5) of the Act.

    Ms Konopka’s case

14. As I understand the position, Ms Konopka does not claim to have participated in a program of support to which she was referred by Centrelink, or a program provided by a “designated provider” of the kind set out at subss 3(a) to (e) of the Determination. However, it is contended on behalf of Ms Konopka that treatment and support provided to her by an entity known as “Pain Medicine of South Australia”, and supervised by Dr Matthew Green, a musculoskeletal, rehabilitation and pain physician, amounts to a program of support provided by a designated provider “as they have been providing Ms Konopka with a program designed to assist her to maintain her employment as a self-employed hair dresser”.[6]

    [6] Statement of Facts, Issues and Contentions for the respondent [14].

15. In support of that contention, Ms Konopka has supplied a number of “management plans” prepared by Pain Medicine of South Australia, with the earliest dated 11 November 2013.[7] These management plans record medication recommendations, rehabilitation recommendations, work recommendations and other comments, and in each case appear to have been sent to Ms Konopka’s general practitioner, Dr Neroni, presumably to assist in his management of her conditions. It appears from the management plans that copies were not given to Ms Konopka at the time these were prepared.

    [7]     Exhibit 2.

16. Also before me is a copy of a report from Dr Green dated 15 June 2012, in which he sets out the nature of Ms Konopka’s injuries and impairments and addresses other issues, including the impact of the injury on her work capacity.[8] In her evidence, Ms Konopka indicated that she had seen Dr Green every few months since her injury and at each appointment they would discuss how much she could or should be working.

    [8]     Exhibit 1, T22/293.

17. In his oral submissions on behalf of Ms Konopka at the conclusion of the hearing, Ms Konopka’s advocate, Mr Shepley, contended that Dr Green potentially satisfied either subss 3(f) or 3(g) of the definition of “designated provider” in the Determination. With respect to subs 3(f), he contended that Ms Konopka had been referred by her lawyer to Dr Green, and Dr Green would be required to provide evidence to Telstra in respect of Ms Konopka’s injuries in the common law proceedings.

18. With respect to subs 3(g), I note that for Dr Green to satisfy this aspect of the definition, it would need to be established that he had provided a program that was “designed to assist persons to prepare for, find or maintain work” and that it was “of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth”.[9] In his oral submissions, Mr Shepley contended that Dr Green and/or Pain Medicine of South Australia satisfied this definition as their treatment of and support for Ms Konopka was designed to assist her to maintain her employment.

    [9]     See subss 94(5)(a) and (b)(ii) of the Act.

    Was the program provided by a “designated provider”?

19. On my analysis, however, subs 3(f) of the Determination requires that the relevant provider be “authorised” by an insurer to provide relevant services to a claimant pursuant to an accepted insurance claim. I note there is no evidence before me to suggest this is the position with respect to Dr Green and, indeed, no evidence to suggest that at this stage, Telstra or its insurer have accepted liability for Ms Konopka’s injuries. For these reasons, I am not satisfied that Pain Medicine of South Australia or Dr Green satisfy the definition of “designated provider” as set out in subs 3(f) of the Determination.

20. With respect to subs 3(g), I accept that one of the goals of Dr Green’s treatment of Ms Konopka is to assist her to maintain her self-employment and that he monitors this and regularly discusses with Ms Konopka her capacity for work and how to optimise this. On balance, however, I am not satisfied that this amounts to a program “similar” to Commonwealth funded programs of support in the relevant sense.

21. Clearly, one of the purposes of pain management treatment in circumstances such as Ms Konopka’s is to give advice about work capacity and assist a person to optimise their sustainable work capacity. However, the treatment and advice provided by Dr Green to Ms Konopka was, in my view, fundamentally medical in nature and different from the services contemplated by the Determination. While he was clearly assisting Ms Konopka to manage her condition, including by reference to her work capacity, and providing recommendations to her general practitioner aimed at minimising the impact of her symptoms upon her and maximising her work capacity, I am not persuaded that Dr Green was providing a program to Ms Konopka of the kind which would be provided by a “Job Services Australia provider or a “Disability Employment Service” provider. I accept the Secretary’s contention that:

    The program provided by Dr Green and/or Pain Management (sic) of South Australia is one which is focused on the medical treatment and ongoing medical management of chronic pain conditions. It is not “similar to” programs of support funded by the Commonwealth as it does not have the broad focus on preparing people for employment in a range of occupations, suited to the person’s level of impairment, through retraining and reskilling in conjunction with ongoing rehabilitation.[10]

    [10]    Secretary’s Statement of Facts and Contentions [4.39].

    The other criteria

22. With respect to the other matters made relevant by s 6 of the Determination, for similar reasons, I am also not satisfied that the pain management “program” provided by Dr Green was, in the relevant sense “specifically tailored to address [Ms Konopka’s] level of impairment, individual needs and barriers to employment” or “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”.[11] I accept that it included “injury management” within the meaning of subs 6(d), and in particular, advice as to pain management in the context of her existing self-employment. However, I am not satisfied that it was sufficiently focussed on addressing general barriers to employment, or improving Ms Konopka’s capacity for employment so as to satisfy the descriptors at subss 6(b) or (c).

    [11]    Subsections 6(b) and (c) of the Determination.

23. I accept that Dr Green was providing advice and support to Ms Konopka with one of the goals of that support and advice being to assist her in managing her condition and maintaining her employment. However, on the evidence before me, the main focus of Dr Green’s treatment, advice and support was on pain management and supporting her to pursue her existing work activities. It does not appear to have included any exploration of other forms of employment and nor is there clear evidence before me that it involved a concerted and consistent attempt to increase Ms Konopka’s work capacity through both management of her condition and consideration of alternative forms of employment.

    Conclusion

24. I have accordingly concluded that although she was engaged in a pain management program provided by Dr Green for at least 18 months in the 36 months prior to lodging her claim for DSP, that pain management program was not a “program of support” of the kind contemplated by the Determination. I have therefore further concluded that at the time she lodged her claim, Ms Konopka had not actively participated in a program of support for the purposes of subs 94(2)(aa) of the Act, and was not qualified for DSP. In light of this conclusion, it is unnecessary for me to consider whether at the time she lodged her claim Ms Konopka met the other requirements of subs 94(2).

25. For the reasons given above, I have decided to set aside the decision of the SSAT dated 23 July 2014 and substitute a decision that as at her date of claim and within 13 weeks of that date, Ms Konopka did not satisfy the requirements of subs 94(1)(c) of the Act and therefore was not qualified for DSP.

    DECISION

26. The decision under review is set aside and in substitution for that decision, it is decided that Ms Konopka was not qualified for DSP at the date of her claim or within 13 weeks of that date.

I certify that the preceding 26 (twenty -six) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Bean

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Administrative Assistant

Dated 23 August 2016

Date of hearing	17 May 2016
Solicitors for the Applicant	Mr A Hay Department of Human Services FOI and Litigation Branch
Solicitors for the Respondent	Mr M Shepley Welfare Rights Centre (SA) Inc.