Kontossis and Secretary, Department of Social Services (Social services second review)
[2016] AATA 892
•10 November 2016
Kontossis and Secretary, Department of Social Services (Social services second review) [2016] AATA 892 (10 November 2016)
Division
GENERAL DIVISION
File Number
2016/1618
Re
Vasilios KONTOSSIS
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Member D. J. Morris
Date 10 November 2016 Place Melbourne The Tribunal affirms the reviewable decision.
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D. J. Morris, Member
SOCIAL SERVICES – Disability Support Pension (DSP) – whether qualified – whether impairments fully diagnosed, fully treated and fully stabilised – whether impairments attract 20 points or more on Impairment Tables – historical impairment assessment under State legislation not relevant – diagnosis after relevant period – not qualified for DSP – decision affirmed
Legislation
Accident Compensation Act 1985 (Victoria)
Social Security Act 1991 s 94(1) – s 94(1)(a) – s (94)(1)(b) – s (94)(1)(c) - s 94(2) – s 94(5)
Social Security (Administration) Act 1999 Schedule 2 Cl 4(1)
Secondary Materials
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
D. J. Morris, Member
10 November 2016
BACKGROUND DATES AND EVENTS
Mr Vasilios Kontossis applied for Disability Support Pension (DSP) on 9 June 2015.
His application was rejected by the Department of Social Services (the Department) on 6 October 2015.
He sought a review of that decision by an Authorised Review Officer (ARO), an independent officer within the Department. On 17 November 2015 the ARO affirmed the original decision.
Mr Kontossis made an application to the Social Services and Child Support Division of the Tribunal. That hearing took place on 17 February 2016 (AAT1). On 3 March 2016 AAT1 affirmed the original decision.
The Applicant then lodged an application for a second-tier review in the General Division of the Tribunal.
The hearing was held on 17 October 2016. Mr Kontossis represented himself and made submissions and gave evidence on his own behalf under affirmation. The Respondent Secretary was represented by Mr James Henderson. The Respondent chose not to cross-examine the Applicant and relied on oral and written submissions.
The Respondent submitted documents under section 37 of the Administrative Appeals Tribunal Act 1975 (T-documents), which were admitted into evidence.
The Applicant submitted the following documents which were admitted into evidence:
·Medical report dated 25 June 2016 from Dr Johnny Lin of Guardian Medical Centre in East Burwood (Exhibit A1); and
·Medical certificate dated 21 March 2016 from Dr Andrew Bahardeen of Eastern Health (Exhibit A2).
THE LAW
Qualification for DSP under the Act
The law applicable to the grant of DSP is the Social Security Act 1991 (the Act) and in particular section 94 of that Act.
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 has –
(a)a physical, psychological or mental 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.
The Impairment Tables referred to in section 94(1)(b) are to be found in subordinate legislation, namely a ministerial determination called the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011. This Determination came into effect on 1 January 2012 and is applicable to assessments of qualification for DSP from that date.
The applicable provision relating to the Applicant’s ability to “work” under subsection 94(1)(c) and section 94(5) of the Act is defined as work that is for at least 15 hours a week.
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.
An important additional requirement is, if a person is assigned 20 or more points under one Impairment Table, which means the impairment is assessed to be a ‘severe’ impairment. If a person is assigned 20 or more points total 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. A person who does not have 20 or more points under one Table must have participated in a program of support in compliance with the Act and the Social Security (Active Participation for Disability Support Pension) Determination 2014.
What is the relevant period for considering the claim?
The Social Security (Administration) Act 1999 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.
Therefore the ‘window’ for assessing qualification for DSP in the case of Mr Kontossis is the period starting on 9 June 2015 and ending on 8 October 2015. This is described as the ‘relevant period’.
QUESTION AT ISSUE
The Tribunal must determine whether the Applicant was eligible for DSP on the date he lodged his claim (9 June 2015) or, applying the provisions of clause 4(1) of Schedule 2 of the Social Security(Administration) Act 1999, if he was not eligible on that date whether he became eligible on a date within the thirteen week period after lodging the claim, which ended on 8 October 2015.
APPLYING THE LAW
Does the Applicant have a physical, intellectual or psychiatric impairment?
Dr Johnny Lin, general practitioner, stated in a medical report dated 5 July 2015 that the Applicant injured his shoulder in 2001 and that the injury was confirmed by specialist medical opinion from Dr Malcolm Brown, occupational physician, Mr Peter Battlay, FRACS, general surgeon, and Mr Brian Davie, FRACS, orthopaedic surgeon.
The Respondent did not dispute that the Applicant has an impairment.
Taking into account the medical evidence, I find that Mr Kontossis did satisfy section 94(1)(a) of the Act in the relevant period.
If so, what is the correct rating under the Impairment Tables?
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 Minister’s Determination.
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.
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 a person must have a continuing inability to work.
Shoulder condition
The Applicant suffered a shoulder injury in 2001 for which he has had a number of treatments. After seeing various doctors, including orthopaedic surgeons who had difficulty pinning down a confirmed diagnosis, he saw Mr John Salmon, FRACS, orthopaedic surgeon, in 2003 who, on the basis of examination and an x-ray, diagnosed severe acromioclavicular (AC) joint arthritis. Mr Salmon performed surgical excision of the right AC joint.
Dr Lin in his medical report of 5 June 2015 states that the Applicant suffers from a loss of function and continuing pain from his shoulder injury. His opinion was that the condition was expected not to change within the next 2 years.
A face to face Job Capacity Assessment (JCA) was conducted on 17 September 2015 by a registered psychologist with support from a rehabilitation counsellor. The JCA reported that the Applicant could manage most daily activities requiring the use of his hands and arms but has difficulty with lifting heavier objects over 10 kilograms and in handling very small objects. Mr Kontossis said that he was right-handed and, as a result of his injury and the pain in his right shoulder he has worked to become ambidextrous.
After his injury he was no longer able to continue in his previous automotive shop work. He then re-trained himself and learned to use a computer keyboard, and undertook office work.
In the JCA, the Applicant said he was able to use public transport without assistance. In answers to questions from the Tribunal, he described some difficulties with personal care owing to loss of function in his right arm. He said that he lived independently in an apartment and had an arrangement whereby his laundry and some cleaning is done for him. He said he would not be able to do laundry himself, because of difficulties with his arm.
The correct table in the Minister’s Determination to assess shoulder impairment is Table 2 – Upper Limb Function. On the information in the JCA, the specialist opinion and the Applicant’s own self-reporting, and applying the Descriptors in Table 2, I hold that there is a ‘mild’ functional impact on Mr Kontossis as a result of his injury. He may satisfy some of the Descriptors in the ‘moderate’ functional impairment part of that Table, but the Determination requires most of the Descriptors to be satisfied in that part, and except for the AAT1 conclusion on this point (with which I respectfully disagree), there was no evidence before the Tribunal to support that requirement being met.
It would seem to me, applying the Descriptors and on the evidence before me, that an allocation of 5 impairment points under this Table is appropriate, and I so find.
Mental health condition
Dr Lin also refers to the following condition: Depression/Anxiety/Alcohol Dependence, which he says has the most impact on the Applicant. In these reasons I will first consider the Depression/Anxiety issue alone, and then separately assess the alcohol dependence condition.
Dr Lin said that the condition is confirmed but not supported by specialist opinion and that the Applicant was currently undergoing counselling and had been prescribed antidepressants.
Dr Lin said that future treatment was “SSRI [selective serotonin reuptake inhibitor], psychologist, rehabilitation”. He stated that the condition was expected to persist for up to 2 years and there was an uncertain/fluctuating effect of this condition on the Applicant’s ability to function.
The difficulty for Mr Kontossis is that he presented no evidence of a corroborative diagnosis of his depressive and anxiety condition in the relevant period by a psychiatrist or a clinical psychologist. That is a mandatory requirement for the assignment of impairment points under Table 5 – Mental Health Function.
Exhibit A1, the medical report from Dr Lin dated 25 July 2016, included the following:
2. Axis 2 diagnosis of Narcissistic and anti social personality disorder.
Bill [the Applicant] has been reviewed by a psychiatrist in August 2016 (Dr Prasana). The psychiatrist has diagnosed Bill with an axis 2 diagnosis of narcissistic and anti social personality disorder.
I asked the Applicant if he had any written report from Dr Prasana, and he advised that it had been sent direct to his general practitioner, Dr Lin.
Dr Lin went on in Exhibit A1 to say that the Applicant experiences significant issues with social interactions and as such he has difficulties with interpersonal situations. In addition “he also lacks concentration and is unable to maintain concentration for greater than 30 minutes”.
Dr Lin assesses Mr Kontossis’s psychological impairment rating at “10” according to the impairment tables. Without reflecting at all on Dr Lin’s professional opinion as a treating general practitioner, there is no flexibility in the Minister’s Determination. It would be necessary for the Applicant to bring forward independent evidence of this diagnosis to satisfy the requirements of a corroborative diagnosis by a psychiatrist or a clinical psychologist either before the claim for DSP or in the thirteen week relevant period thereafter, before consideration can be given to the assignment of any impairment points under Table 5. Dr Prasana’s diagnosis fulfils this requirement in terms of corroborative diagnosis, but he made his diagnosis in August 2016, well after the relevant period, and I cannot take it into account in relation to this claim (the diagnosis may however be relevant for a future claim).
Accordingly, no impairment points are able to be allocated for the Applicant’s depressive/anxiety condition.
Alcohol dependence condition
As noted Dr Lin also diagnosed “alcohol dependence” in his medical report. The correct impairment table to assess the functional impact of this condition is Table 6 – Functioning relating to Alcohol, Drug and Other Substance Use.
The JCA and the ARO both concluded that this condition was fully diagnosed, but as evidence based treatment which is likely to enhance functional impact had yet to be undertaken in the relevant period, it could not be regarded as “fully treated and fully stabilised”.
AAT1 allocated 5 impairment points to this condition based, in part, on the evidence the Applicant gave at that hearing. In his submissions to this hearing, the Respondent said that the alcoholism had been noted as a symptom of the Applicant’s depressive condition and as the latter had not been confirmed by expert opinion, the former could not be unlinked and assigned an impairment rating.
The JCA reported that the Applicant traced the advent of this condition to 1991 and told the Assessor he had attended a two week residential detoxification programme in June 2015. I asked the Applicant whether he had written evidence of this participation, but he did not have any and said that the Department “could get it” from those that administered the program. I pointed out that in applying for a benefit such as the DSP, the onus is on the Applicant to gather as much material together as he or she can to support their claim. The obligation to marshal medical or other information to support a person’s claim does not reside with the Department.
In addition, the proximity of Mr Kontossis’s participation in this programme to the 9 June 2015 date he made his claim weighs against considering that the condition is fully treated or stabilised in terms of the Rules in the Determination for assigning impairment points.
Rule 6(5) is applicable when considering whether a condition is fully diagnosed and fully treated and, at paragraph (c) provides that whether treatment is continuing or is planned within the next 2 years is to be taken into account.
Accordingly, I find that no impairment points can be allocated for the applicant’s alcohol dependence in the relevant period because there was no evidence before me that this condition was fully treated or fully stabilised at the time.
Other conditions
AAT1 referred to the Applicant giving evidence of having a kidney removed, but the presiding Member said she did not have evidence before her to verify the claim. I did have such evidence confirming that the Applicant had had a kidney removed in 2003 because of a congenital condition, but no functional impact was cited as a result of this condition and so, applying Rule 6(8) in the Determination, no impairment rating may be assigned for it.
Equally, in his application and in evidence before AAT1, Mr Kontossis referred to the removal of two ribs, but no functional impact was advanced by the Applicant, except to say that because he had “body parts missing” that should be considered in his claim. However, the Determination makes clear at Rule 11(5) that where no impairment results from a condition, the impairment should be assessed as having no functional impact and a zero rating must be applied.
Therefore, I find the total allocation of impairment points to the Applicant is 5 points, for his permanent shoulder condition.
Continuing inability to work
As Mr Kontossis failed to satisfy the requirements of section 94(1)(b) of the Act in the relevant period, it is not necessary for me to go on to consider whether he had a continuing inability to work in the relevant period.
The Respondent said that the Applicant’s shoulder condition was stable and had not worsened, that he has experience as a sales representative and can use a computer, and that there was no evidence the Applicant could not work for 15 or more hours per week.
Dr Malcolm Brown stated on 30 September 2008:
Mr Kontossis does have capacity for suitable employment but not for his pre-injury duties changing tyres and doing a full range of mechanical tasks. I think he could do mechanical work in a team with others, where he could avoid more strenuous and awkward tasks. There are a range of other lighter jobs that he could do.
…
The vocational assessment report from September 2008, lists suitable employment options of sales representative, retail manager, and retail sales assistant. Based on today’s assessment, Mr Kontossis does have capacity to do any of these tasks on a full-time basis, provided there is no heavy lifting of weights more than about 10 kg.
It may well be that the shoulder condition would rule out work as a mechanic, but the Applicant has (to his credit) re-trained himself to do other, office-based, work as a sales representative, and in fact he did so, full-time, from 2011 until he voluntary resigned in 2013. This work history is factual and militates against a finding, even if Mr Kontossis had hypothetically been able to be properly assigned 20 or more impairment points under more than one impairment table in the relevant period (for instance, if he had had a contemporary mental health diagnosis), that he had a continuing inability to work at the time of claim in satisfaction of section 94(1)(c).
I note that in the relevant period the Applicant had had at least eighteen months of active participation in a program of support.
CONCLUSION
The Applicant on a number of occasions during the hearing referred to a Victorian Medical Panel certificate of opinion under the Accident Compensation Act 1985 (Victoria) in relation to his shoulder injury. He contended that the Panel’s decision should override any other assessments in terms of his qualification for DSP.
I note that the Victorian Medical Panel found:
The Panel acknowledged that the worker has some impairment of the spine and some loss of 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 use of the right arm, or the greater part of the right arm.
In May 2004, that Panel assigned a “19 per cent total impairment rating” under the Victorian Act. However, I made it clear to Mr Kontossis that this certificate was only relevant in regard to his current claim in providing historical evidence of a medical condition and that for any person to qualify for DSP; they must satisfy all the requirements of section 94 of the Social Security Act. An assessment made under other, in this case State, legislation cannot be “imported” as somehow providing automatic qualification for DSP.
At the conclusion of the hearing, I was not satisfied that the Applicant clearly understood this distinction between a medical assessment in other circumstances and assessment for DSP under the Act.
Mr Kontossis expressed his frustration at the lack of success with his application for DSP at the hearing. It would be more productive, if he believes he is qualified for the benefit, to channel his energies into assembling contemporary and corroborative medical evidence to support a future claim. In his application for review dated 22 March 2016, he stated that he had organised a report from Dr George Mendelson, who according to the Australian Health Practitioner Regulation Agency site is a psychiatrist with speciality in pain management, in support of his claim. However no report from Dr Mendelson was provided to the Tribunal.
Section 94(1) is a conjunctive subsection of the Act – each part of it must be satisfied for a person to be qualified for DSP. As the Applicant did not satisfy each part of the subsection in the relevant period, the original decision was correct. Mr Kontossis was not qualified for DSP at that time.
DECISION
The reviewable decision is affirmed.
62. I certify that the preceding 61 (sixty-one) paragraphs are a true copy of the reasons for the decision herein of Member D. J. Morris.
[sgd].....................................................................
Associate
Dated 10 November 2016
Date of hearing 17 October 2016 Applicant In person Advocate for Respondent Mr James Henderson, Senior Government Lawyer, Department of Social Services
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