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

Kontossis and Secretary, Department of Social Services (Social services second review) [2018] AATA 1846 (21 June 2018)
Division:GENERAL DIVISION
File Number: 2017/7622
Re:Vasilios Kontossis
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Ms Anna Burke, Member
Date:21 June 2018
Place:Melbourne

The Tribunal sets aside the decision under review and in substitution determines that Mr Kontossis satisfies all the requirements of s 94 of the Social Security Act 1991 and thereby qualified for the Disability Support Pension as at the date of his claim.
[sgd]........................................................................
Ms Anna Burke, Member
Catchwords
SOCIAL SECURITY – application for disability support pension –– whether qualified – right shoulder, secondary chronic pain and cervical spine, and mental health conditions- whether impairment attracts rating of 20 points or more under Impairment Tables – whether program of support had been undertaken – decision under review set aside and substituted
Legislation
Administrative Appeals Tribunal Act 1975
Social Security (Administration) Act 1999
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Social Security Act 1991
Secondary Materials
Guide to Social Security Law
REASONS FOR DECISION
Ms Anna Burke, Member
21 June 2018
INTRODUCTION

Mr Kontossis (the Applicant) is seeking a second tier review of the decision made by the Secretary, Department of Social Services (the Respondent) to refuse to grant the Applicant a Disability Support Pension (DSP) pursuant to s 94 of the Social Security Act 1991 (the Act).
On 9 May 2017 Centrelink found that Mr Kontossis was not entitled to DSP as he did not meet the requirements of the Act. Centrelink is the service provider for the Department of Human Services.
The application was heard on 4 May 2018 via telephone. Mr Kontossis was self‑represented and Mr Pietro Nacion, Solicitor with Sparke Helmore Lawyers appeared for the Respondent.
THE ISSUES IN CONTENTION
The issues in contention are whether Mr Kontossis:
(a)had a physical, intellectual or psychiatric impairment;
(b)has a diagnosed condition which has been fully diagnosed, treated and stabilised and is likely to continue for at least two years;
(c)has a fully diagnosed, treated and stabilised condition or conditions which attract 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables); and
(d)has a continuing inability to work.
BACKGROUND
Mr Kontossis, who is now 57 years of age, divorced and currently living with his elderly parents, being estranged from his ex-wife and children. Mr Kontossis left school at year 10 to commence an apprenticeship as a motor mechanic which he successfully completed. He worked for many years in the automotive industry as a motor mechanic both self‑employed and for a large tyre business. In 2001 Mr Kontossis suffered a workplace injury, when he was in the process of removing a truck tyre from a rim, it was in fact the fourth wheel he had addressed and while lifting the tyre to slam on the ground to release the bead he felt a sudden crack associated with pain in his right shoulder region rapidly followed by a hot and cold sensation affecting the shoulder. He had two weeks off work and was able to resume his normal duties as a manager but was unable to perform any hands-on work. This injury was accepted under WorkCover for which Mr Kontossis received payment for medical expenses and a lump sum payment was finalised in 2007. In 2002 because of a business restructure he was retrenched from his employment and subsequently obtained finance to reopen the business and operated as an owner operator but was still restricted as he could not undertake any physical work. In 2003 Mr Kontossis underwent further surgery on his shoulder and has not worked since. In 2009 Mr Kontossis sold the business due to financial issues.
On 9 May 2017 Mr Kontossis made an application for DSP, citing his medical conditions as chronic right shoulder condition, (A/C joint, collar bone, shoulder bone, kidney, 2 ribs, urine tube, pipes – ETC. removed from body), depression, anxiety, clavicle excised, alcohol dependence, osteo arthritis, hear voices, ear druming [sic], blur vision, in pain 24/7, Paraesthesia, neuropathic pain and right shoulder in corner pops.
On the 31 January 2017 Centrelink had a job capacity assessment (JCA) conducted on Mr Kontossis. The JCA report found that:
·     Mr Kontossis’s shoulder/upper arm and psychiatric disorder were fully diagnosed but not fully treated or stabilised as Mr Kontossis may benefit from additional medical intervention, as such nil points were awarded.
·     Mr Kontossis’s kidney disorder was consider to be fully treated, stabilised and treated but caused no functional impairment so nil points were awarded
·     Mr Kontossis was assessed as having a baseline work capacity 8-14 hours per week and 15-22 hours per week in 2 years with intervention.
On 31 May 2017 Centrelink wrote to Mr Kontossis to inform him that his DSP had been refused as he did not have an impairment rating of 20 points or more under the Impairment Tables.
On 2 August 2017, on internal review, a departmental authorised review officer (ARO) affirmed the early JCA report finding that Mr Kontossis’s total impairment rating was nil for all his conditions, as his medical condition had not been fully treated and stabilised. They also found that Mr Kontossis had a continuing ability to work and had not met the program of support requirements because he had not actively participated in the program of support for 18 months in the last 36 months.
On 1 December 2017 the Social Services and Child Support Division of the Tribunal (AAT1) affirmed the decision of the ARO to reject Mr Kontossis’s DSP claim and found:
·he was suffering from right shoulder injury which he considered was fully diagnosed, treated and stabilised, however at the time of claim the condition was having a moderate impact on activities involving the lower limbs and therefore awarded 10 points under Table 2 –Upper Limb Function;
·that the condition of right nephrectomy was fully diagnosed, treated and stabilised but was not causing functional impact so nil points were awarded;
·that his personality disorder was not fully diagnosed, stabilised or treated at the time of the claim; and
·did not make a finding in respect of undertaking a program of support as Mr Konstossis was not found to have a severe impairment.
On 20 December 2017 Mr Kontossis sought a review of the AAT1 decision by the General Division of the Tribunal, as he believes the decision by the tribunal is wrong, he claims to have 60 points and “the law says 20 points so your Tribunal Members have made the wrong decision”.
In accordance with Schedule 2, s 4(1) of the Social Security (Administration) Act 1999 (Administration Act) Mr Kontossis’s qualification for DSP is to be determined from the date of his claim to a date 13 weeks thereafter, that being 11 August 2017.
Relevant Legislation and Issues
Section 94(1) of the Act provides that a person is qualified for a DSP 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;
…
It is agreed that, at the time of application, Mr Kontossis suffered from right shoulder, secondary chronic pain and cervical spine, mental health, alcohol dependence, kidney and ribs, knee, ankle, elbow, wrist, thumb, bronchitis and pneumonia conditions that caused impairment and he therefore satisfied s 94(1)(a) of the Act.
The Impairment Tables require that an impairment rating can only be assigned if the condition causing that impairment is “permanent”.[1]
[1] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011; section 6(3)(a)
Section 6(4) of the Impairment Tables states that a condition is “permanent” if:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)the condition has been fully treated; and
…
(c)the condition has been fully stabilised; and
…
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
The introduction to each relevant Impairment Table requires that “self-report of symptoms alone is insufficient” and that “there must be corroborating evidence of the person’s impairment”.
Section 6(5) of the Impairment Tables states:
Fully diagnosed and fully treated
(5)In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
Section 6(6) of the Impairment Tables states:
Fully stabilised
(6)For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Reasonable Treatment
(7)For the purposes of s 6(6), reasonable treatment is treatment that:
(a)is available at a location reasonably accessible to the person; and
(b)is at a reasonable cost; and
(c)can reliably be expected to result in a substantial improvement in functional capacity; and
(d)is regularly undertaken or performed; and
(e)has a high success rate; and
(f)carries a low risk to the person.
The determinative issue in this review is whether, at the time, Mr Kontossis suffered an impairment of 20 points or more under the Impairment Tables and, if so, whether he had a continuing inability to work.
The Impairment Tables are function-based rather than diagnosis-based and describe functional activities, abilities, symptoms and limitations. They are designed to enable the assignment of ratings to determine the level of functional impact of impairment and not to assess conditions (s 5(2) of the Impairment Tables).
Section 6(1) of the Impairment Tables sets out that, when assessing functional capacity, a person’s impairment must be assessed on the basis of what a person can, or could do, not on the basis of what a person chooses to do or what others can do for the person.
Section 6(8) of the Impairment Tables further provides that the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating can be assigned. In other words, a person may be diagnosed with a condition but, with appropriate treatment, the impairment rating from the condition may not result in any functional impact.
It is necessary, therefore, to consider the Applicant’s medical conditions with reference to the applicable Impairment Tables.
THE TRIBUNAL’S CONSIDERATION AND FINDINGS
Evidence before the Tribunal
The evidence before the Tribunal included documents provided pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, referred to as the “T‑documents”, and additional medical reports were provided by Mr Kontossis.
Does Mr Kontossis have a physical, intellectual or psychiatric impairment?
Section 94(1)(a) of the Act provides that to qualify for DSP, in the first instance, that a person suffers from an impairment.
The parties accept that Mr Kontossis is suffering from right shoulder, secondary chronic pain and cervical spine, mental health, alcohol dependence, kidney and ribs, knee, ankle, elbow, wrist, thumb, bronchitis and pneumonia conditions. Accordingly, the Tribunal finds that Mr Kontossis is suffering from these conditions and meets the requirements of s 94(1)(a) of the Act.
As noted above, s 94(1)(b) of the Act states that the second requirement to qualify for disability support pension is that the person’s impairments rate 20 points or more under the Impairment Tables.
Does Mr Kontossis have medical conditions that can be rated at 20 points or more under the Impairment Tables?
Right shoulder, secondary chronic pain and cervical spine
Mr Neil Cullen, presiding member for and on behalf the medical panel constituted pursuant to the Accident Compensation Act 1985 in report 29 May 2004 concluded that:
... the worker is suffering residual right shoulder dysfunction due to an unresolved surgically treated injury to the acromio-clavicular joint of the right shoulder and a persisting soft tissue injury of the neck, …
The Panel acknowledged the worker had some impairment of the spine and some loss of the use of the right arm, the Panel considers the impairment and loss of use are not severe enough to be regarded as effectively either a total impairment of the spine or a total loss of the use of the right arm, or the greater part of the right arm. ...
Dr Mark Martakis, general practitioner in a medical report of 20 August 2005 opined:
Essentially his symptoms of R shoulder pain, restrictors of stability continue. He continues to require Physiotherapy services which help to maintain his level of functionality, but do not result in cure.
Mr John Salmon, Orthopaedic Surgeon, in a medical report of 27 February 2007 opined:
He still describes anterior pain and popping of the shoulder with a fairly constant ache. His clinical examination is still fairly unrewarding and I have explained to him that I feel no further surgery is going to help him.
Dr Johnny Lin, general practitioner in a medical report of 25 July 2016 opined that Mr Kontossis suffered permanent impairments which will affect his ability to perform in the workforce. He stated in the report:
1. Right shoulder rotator cuff ligamentous injury with secondary chronic regional pain syndrome
This injury was diagnosed in October 2001. From this injury Bill experienced pain and limitation of movement of his right upper limb. According to the correspondence letters from Bills medical record, I note that Bill underwent an arthroscope and also had hydrodilatation to his shoulder by Mr Greg Hoy (Orthopaedic surgeon). Following this he had decompressive surgery over his acromio-clavicular joint by Mr John Salmon (Orthopaedic surgeon).
Secondary to his injury Bill also developed chronic regional pain syndrome. This was diagnosed in 2007 under the review of Mr Chris Xenos (Neurosurgeon). Bill experience paraesthesia, neuropathic pain which also contributed to his loss of function and mobility of his right upper limb.
Bill continues to have ongoing limitation of function with his right arm and will require further treatment. At this stage this will involve physiotherapy predominantely [sic]. I also believe that he will benefit from comprehensive pain management plan to manage his chronic regional pain syndrome which may need the consultation of a pain specialist. Depending on his response to this treatment, his condition may improve and he may be able to undertake training for employment and then to take up employment.
...
Bill suffers significant pain and limitation of movement with his right arm. As a result he has difficulty lifting heavy objects greater than 5kg and bulky objects. Bill also notes that there is at least moderate difficulty with self care activities despite having adapted to doing some things with his non dominant left arm. As per the tables Bill would have severe difficulty operating a keyboard.
Dr Russell Hamilton, General practitioner, in a medical report of 26 August 2017 opined that Mr Kontossis is unable to work because of: “Chronic Right shoulder pain and major loss of strength in dominant arm that significantly interferes with manual handling.”
The Tribunal explored Mr Kontossis functional impact under Table 2 - Upper Limb Function of the Impairment Tables as Mr Kontossis’s accepted condition primarily impacts his upper limbs. His capacity in respect of the severe functional impact was explored.
Table 2 – Upper Limb Function
There is a severe functional impact on activities using hands or arms.
(1)Most of the following apply to the person:
(a)the person has limited movement or coordination in both arms or both hands, or has an amputation rendering a hand or arm non-functional;
(b)the person has severe difficulty handling, moving or carrying most objects even when using or wearing any prosthesis or assistive device that they have and usually use;
(c)the person has difficulty using a computer keyboard despite appropriate adaptations;
(d)the person has severe difficulty using a pen or pencil;
(e)the person has severe difficulty turning the pages of a book without assistance.
Mr Kontossis advised the Tribunal that:
·he is in constant pain has undergone five operations, his shoulder pops on movement, he has had part of his shoulder and collarbone removed - there is a gaping hole in his shoulder, he can’t grab things, he relies on medication (patches), rest and drinks plenty of water to get through the day;
·he is living with his parents who he relies upon for his daily living activities with his mother performing all housework, washing his clothes and cooking all his meals;
·he cannot wipe his backside, hang clothes on a line, put pressure on his hands or wash his hair, in fact he has no hair having lost it to cancer;
·he cannot carry shopping bags;
·he cannot hold a pen, he gets the shakes and feels like electricity is going through his arm;
·he cannot use a computer keyboard or read a book; and
·he is very protective of his arms, particularly his left as he is tries to preserve its strength and power, he now finds both arms are deteriorating and is terrified if he has another injury he would loss all function in both arms.
In the respondent’s Statement of Issues, Facts and Contentions they contend that:
… The Applicant’s right shoulder condition was not fully treated and stabilise. While the Applicant has undertaken both conservative and surgical treatment, the Secretary contends that there is insufficient evidence that the Applicant has undergone pain management treatment or seen a pain management specialist – which was first recommended by Mr Hoy (in February 2002) and more recently by Dr Lin who believed that the Applicant’s condition and ability to undertake employment may depend on his response to pain management treatment and consultation with the pain specialist.
Given the pain management treatment and specialist review was recommended by Dr Lin, the treatment was likely to lead to significant functional improvement in the Applicant’s condition with the next two years and there is no evidence to suggest the Applicant had undertaken that treatment, the Secretary contends that the upper right when condition cannot be fully treated and stabilised. ...
The Secretary notes the corroborating medical evidence as at the qualification period supports that the Applicant:
(e)was able to perform personal tasks and had soreness when getting dressed (Dr Brown [T14/38]),
(f)lifted light items when shopping and had a lifting restrictions of 10 kg (Dr Brown [T14/38]),
(g)had difficulty lifting heavy objects heavier than 5 kg and bulky items (Dr Lin [T21/92]);
(h)would have severe difficulties operating keyboard (Dr Lin [T21/92]
(i)was able to wash hair, hang washing, handle coins, do up buttons and type with non-affected left arm (Dr Lin [T23/107]),
If the Tribunal finds that the Applicant’s right shoulder and secondary chronic pain conditions were FDTS (which is not conceded), the Secretary contends that the Applicant does not meet the criteria for “moderate functional impact” for “most” descriptors for 10 points under Table 2 of the Impairment Iables, namely the Applicant having difficulty with criteria:
(a)(1)(a)     picking up 1 L carton for liquid
(b)(1)(d)     adoing up buttons or tying shoelaces
(c)(1)(f)      unscrewing the lid on a soft drink bottle
The Secretary contends that based on the available medical evidence the Applicant has met only three descriptors from moderate impairment and therefore does not meet most of the descriptors.

Mr Kontossis told the Tribunal he was damaged goods and simply burnt out. He said that he was sick of seeing doctors and that he had seen hundreds of doctors, specialists and the like over the years. He further said that he had seen a pain management specialist for four years and had been doing physio but could no longer continue to afford such treatment as WorkCover no longer met his medical expenses. He also stated that the numerous treatments had provided temporary relief from his pain but no treatment had cured his condition, his condition was deteriorating, he took issue with Dr Lin’s advice to Centrelink, had switched doctors and now simply wanted a peaceful life. He was now incredibly protective of his shoulders and arms fearing that any treatment would diminish the capacity further and to date no procedure or pain management had alleviated his condition.
The Tribunal found that Mr Kontossis’s condition had been fully diagnosed, treated and stabilised as he had had numerous surgical and conservative treatments over many years with any current or future treatment leading to alleviation of pain but not a return of functionality.
The Tribunal found Mr Kontossis had extensive difficulties with performing activities requiring use of his hands and arms and it was satisfied that these difficulties were extensive enough to award 10 impairment points under Table 2 as he was not able to perform the majority of the functions outlined.
Mental health
Dr Johnny Lin, General Practitioner, in a medical report of 25 July 2016, opined that Mr Kontossis suffered permanent impairments which will affect his ability to perform in the workforce. He stated in the report:
Bill has been reviewed by a psychiatrist in August 2016 (Dr Prasana). The psychiatrist has diagnosed Bill with an axis 2 diagnosis of narcissistic and antisocial personality disorder.
Bill has admitted that he does have difficulty with interpersonal relationships. Some examples which he has noted include his divorce and his complicated relationship with his family.
Bill is currently undergoing treatment by regular sessions with a mental health nurse and there is a mental health plan in place with a plan to have Bill see a psychologist.
Whilst this condition is permanent hopefully Bill will respond to psychology and identify some coping strategies with which to improve his interpersonal skills which are important in most lines of work
Bill experiences significant issues with social interactions and as such he has difficulties with interpersonal situations. This includes social activities, travel and social functions. In addition to this he also lacks concentration and is unable to maintain concentration for greater than 30 minutes. Whilst it is not part of his formal diagnosis, from my observations I would say the Bill would have great difficulty in handling complex tasks.
In regards to work and training capacity the above issues would make it very difficult for Bill to undertake training as would be most likely that there will be conflicts at work or with supervisors.
Dr Russell Hamilton, General Practitioner, in a medical report of 26 August 2017 opined that Mr Kontossis is unable to work because of: “Psychiatric illness that requires psychiatric treatment and impairs his functioning and interpheres [sic] with interpersonal and work place relationships.” ...
At the hearing, Table 5 – Mental Health Function was explored in respect of the impact of Mr Kontossis’s mental health conditions, with a focus on whether she has a possible severe impairment:
There is a severe functional impact on activities involving mental health function.
(1)The person has severe difficulties with most of the following:
(a)self care and independent living;
Example: The person needs regular support to live independently, that is, needs visits or assistance at least twice a week from a family member, friend, health worker or support worker.
(b)social/recreational activities and travel;
Example: The person travels alone only in familiar areas (such as the local shops or other familiar venues).
(c)interpersonal relationships;
Example 1: The person has very limited social contacts and involvement unless these are organised for the person.
Example 2: The person often has difficulty interacting with other people and may need assistance or support from a companion to engage in social interactions.
(d)concentration and task completion;
Example 1: The person has difficulty concentrating on any task or conversation for more than 10 minutes.
Example 2: The person has slowed movements or reaction time due to psychiatric illness or treatment effects.
(e)behaviour, planning and decision-making;
Example: The person’s behaviour, thoughts and conversation are significantly and frequently disturbed.
(f)work/training capacity.
Example: The person is unable to attend work, education or training on a regular basis over a lengthy period due to ongoing mental illness.
When questioned by the respondent about his mental health condition Mr Kontossis was incredulous in his reply stating “you know I am constantly losing it” and was cognisant of the fact he had made numerous phone calls to the Tribunal and the respondent venting his frustration with this whole proceeding. Mr Kontossis commenced the proceedings with a tirade about the process that he was completely fed up with having to explain his situation yet again, he simply couldn’t cope and if he was not successful in securing the disability support pension this time he would take the matter to the Federal Court of Australia. He does not take any medication having found it was not beneficial, that what he needs is peace and quiet having found that the best way to deal with the situation is to cut himself off and get as much sleep as possible.
Mr Kontossis advised the Tribunal that:
·he is still able to look after himself but he was living with his parents who performed all daily activities of living for him such as cooking cleaning and gardening;
·That he preferred to keep to himself but did still have contact with friends and family but was cut off from his ex-wife and children;
·that he had difficulty with interpersonal relationships and preferred to avoid people;
·that he had great difficulty concentrating and had to read things numerous times in order to understand what he was reading;
·that he did not plan activities, had no interest in being social and simply wanted to be left alone and to have a peaceful life, he was sick of seeing doctors, and that many people particularly doctors had let him down; and
·that numerous doctors had said he had no ability to work or train.
In the respondent’s statement of issues, facts and contentions it is contended that:
... the condition was not fully treated and stabilised as at the qualification period. There is insufficient evidence that the Applicant was taking anti-depressant medication, had attended psychological counselling and sought psychiatric intervention regularly and systematically. It appears that further psychological counselling was planned.
...
As on the present evidence, while the Applicant may have met three descriptors for moderate difficulties, it does not meet “most” of the descriptors to meet the criteria for 10 points under table 5 the Impairment Tables. The Secretary contends that if the condition is found to be FDTS, at most, there is a mild functional impairment under Table 5.
The Tribunal found that Mr Kontossis’s mental health condition, described as an anti‑social personality disorder, had been fully diagnosed treated and stabilised and it was having a moderate functional impact on his activities. The Tribunal found it was difficult to distinguish between Mr Kontossis’s inability to perform activities such as self-care, independent living, and concentration because of the pain from his shoulder condition or as a result of his mental health condition.
The Tribunal found Mr Kontossis mental health condition was having a moderate impact on his functionality as he was still able to live independently but that he had great difficulty with:
·behaviour, having numerous outbursts of temper;
·socialising, preferring to avoid people and sleep;
·interpersonal relationships, having broken off all relationship with his ex-wife and children;
·concentrating and completing tasks; and
·working or training because of his difficulty with interpersonal skills and his tendency to engage in conflict.
The Tribunal therefore awarded points 10 under Table 5 of the Impairment Tables.
Alcohol dependence
Dr Mark Martakis, General Practitioner, in a medical certificate of 25 June 2009, recorded that Mr Kontossis suffered from depression. He listed the symptoms of this as alcohol abuse, depressed mood and emotional instability. He noted he was uncertain how long the symptoms would persist and that he was currently receiving counselling and rehabilitation.
Dr Johnny Lin, General Practitioner, in a medical report for an early disability support claim for Mr Kontossis of 5 June 2015, noted that he had been diagnosed with depression, anxiety and alcohol dependence, that he was currently receiving counselling, and that he had been taking anti-depressants. That future proposed treatment included a psychologist and rehabilitation. The impact of this condition was described as poor concentration, disorganisation, low mood, poor motivation and the impact of this condition on his functional ability would persist for two years.
Mr Kontossis advised the Tribunal that he drank a couple of beers once a fortnight as a way of dealing with his situation.
The respondent contended that there is insufficient corroborating medical evidence to support a finding that Mr Kontossis’s alcohol dependence was having a functional impact which could be assessed under the Impairment Tables.
The Tribunal found that at the time of claim Mr Kontossis alcohol dependence was not causing him any functional impact.
Kidney and ribs
Dr Johnny Lin, General Practitioner, was contacted on 31 January 2017 by phone and a record was taken on additional medical evidence for the DSP record for Mr Kontossis. The report states:
confirmed right nephrectomy in 1993, - confirmed no residual symptoms experience from nephrectomy, - confirmed there is no further follow-up treatment required, - confirmed as
left kidney function is normal lifespan would not be reduced, confirmed nephrectomy would have no effects in regard to fatigue/shortness of breath with no impacts on walking tolerance, ability to complete tasks, travel on public transport or ability to perform daily tasks such as climbing stairs, vacuuming etc.
Dr Russell Hamilton, General Practitioner, in a medical report of 26 August 2017, opined that Mr Kontossis is unable to work because of: “Ongoing pain from nephrectomy site that reduces normal range of movement requires him to avoid many activities”.
The respondent accepted that Mr Kontossis’s kidney and rib conditions were fully diagnosed, treated and stabilised at the qualification period based on the medical evidence, but contends that the condition caused minimal or no functional impact and should therefore be assigned an impairment rating of nil under the impairment tables. The Tribunal concurred with this finding.
Knee, ankle, elbow, wrist, thumb, bronchitis and pneumonia
Mr Kontossis, in his application for the DSP and reiterated at the AAT1 hearing advised he:
·was diagnosed in 2001 with arthritis and osteoarthritis but does not take medication for these conditions;
·had an operation on his knee in 1992 but has no ongoing problems from this;
·gets aches in his knees, ankles elbows and wrists;
·has permanent bronchitis and pneumonia and is on two puffers for the rest of this life; and
·takes Echinacea each day and is sick of medications so is now taking herbal treatments.
The respondent contended that there is insufficient evidence to support that the knee, ankle, wrist, thumb or respiratory conditions that applicant suffers were fully diagnosed treated or stabilised or caused any functional impact under the Impairment Tables.
The Tribunal found no medical evidence corroborating these conditions and they were not explored at the hearing as Mr Kontossis and the respondent both concentrated on the conditions which are having the most significant impact upon his functional ability.
The Tribunal found there was insufficient medical evidence to consider these conditions and their functional impact upon Mr Kontossis. Therefore nil points were awarded under the impairment tables for these other conditions
Does Mr Kontossis have a continuing inability to work?
To qualify for the DSP Mr Kontossis must not only satisfy the requirement that he has an impairment or impairments with a rating of 20 points or more under the Impairment Tables, but also demonstrate he has a continuing inability to work. Mr Kontossis would be considered to have a continuing inability to work if he has actively participated in a program of support within the meaning of s 94(3C) of the Act prior to his claim for DSP and his impairment is of itself sufficient to prevent him from doing any work independently of a program of support. The Tribunal must strictly enforce the program of support requirement, finding that no power exists to dispense with its operation and it is irrelevant whether an applicant was aware of the requirement or not.
The Tribunal found Mr Kontossis had completed a program of support and does satisfy s 94(3C) of the Act.
A JCA report of 1 February 2017 undertaken by an exercise physiologist as a file assessment based on the evidence available, not a face-to-face or by phone interview (as Mr Kontossis was not able to be reached as his phone had been disconnected) found that Mr Kontossis had a capacity to work 15 to 22 hours per week within the next two years with intervention. The respondent submitted that the JCAs have specialist knowledge and experience in identifying barriers to employment, interventions, available programs and suitable occupations to determine a person’s work capacity.
The Tribunal notes that there seems to be no uniform preference in the decisions of the Tribunal on whether the conclusions in a JCA report or a medical report should be preferred for the purpose of assessing continuing inability to work. I do not think an absolute preference should be expressed for either report, rather, the preference should be made on a case by case basis, taking into account the usual matters relevant to assessing the probative value of a report. Such matters include the field of expertise and qualifications of the person who wrote the report (or who made assessments forming part of the report), the duration and frequency of the report writer’s relationship with the person who is the subject of the report and the reliability and depth of the analysis within the report.
The Tribunal placed little weight on the JCA which was conducted five months before Mr Kontossis submitted his current claim and was conducted as a file assessment with no current input from Mr Kontossis. The Tribunal preferred the findings of Mr Kontossis’s treating general practitioner Dr Hamilton and his previous treating general practitioner Dr Lin who both opined he was unable to undertake any work or training.
CONCLUSION
The Tribunal has awarded 10 points to Mr Kontossis under Table 2- Upper Limb Function as he has significant but not severe issues with his hands and arms. Additionally, the Tribunal awarded 10 points under Table 5 for his personality disorder as Mr Kontossis has a moderate functional impact arising from his mental health condition.
I am satisfied that, at the date of application, Ms Kontossis was qualified to receive the DSP, as his impairments attracted 20 impairment points under the Impairment Tables based of his right shoulder condition: 10 points for upper limb function and for his personality disorder: 10 points for mental health condition. Additionally, he satisfies s 94(1)(c) of the Act in that he had a continuing inability to work.
DECISION
The Tribunal sets aside the decision under review and in substitution determines that Mr Kontossis satisfies all the requirements of s 94 of the Social Security Act 1991 and thereby qualified for the Disability Support Pension as at the date of his claim.

I certify that the preceding 68 (sixty‑eight) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke, Member

[sgd].....................................................................
Associate
Dated: 21 June 2018

Date of hearing:

4 May 2018

Applicant: Self-Represented

Solicitor for the Respondent: Mr Pietro Nacion

Solicitors for the Respondent: Sparke Helmore Lawyers

[2018] AATA 1846

21 June 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Standing

Statutory Construction

Remedies

Date of hearing:	4 May 2018
Applicant:	Self-Represented
Solicitor for the Respondent:	Mr Pietro Nacion
Solicitors for the Respondent:	Sparke Helmore Lawyers