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

[2016] AATA 1097

Krasniqi and Secretary, Department of Social Services (Social services second review) [2016] AATA 1097 (23 December 2016)

Division:GENERAL DIVISION

File Number:              2016/3528

Re:Iqbal Krasniqi

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member P Nolan

Date:23 December 2016

Date of written reasons:        20 January 2017

Place:Brisbane

The decision under review is affirmed.

........................[Sgd]................................................

Senior Member P Nolan

CATCHWORDS

SOCIAL SECURITY – disability support pension - lower limb conditions – psychiatric condition – whether conditions permanent – whether 20 points under Impairment Tables – whether eligible within relevant period – decision under review affirmed.

LEGISLATION

Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth) Sch 2, s 4

SECONDARY MATERIALS

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

Social Security (Active Participation for Disability Support Pension) Determination 2014

REASONS FOR DECISION

Senior Member P Nolan

20 January 2017

INTRODUCTION

1. Mr Iqbal Krasniqi (“the Applicant”) seeks review of a decision of the Secretary of the Department of Social Services (“the Respondent”). The decision was reviewed by Social Services and Child Support Division of the Administrative Appeals Tribunal (“SSCSD”), and dated 15 June 2016, which affirmed the decision to reject his claim for disability support pension (“DSP”).[1]

   [1] Exhibit 1, T Documents, T2 p.6-13.

2. The Applicant lodged a claim for DSP on 1 September 2015.[2] The following conditions were listed on the applicant’s claim form:

   (a)an “open fracture left leg” (caused by a fall);

   (b)depression.

   [2] Exhibit 1, T Documents, T16, pages 77-105.

   ISSUES

3. The first issue for consideration is whether the Applicant has a physical, intellectual or psychiatric impairment. The second issue is whether the Applicant’s impairment can be assigned an Impairment Rating of 20 points or more under the Impairment Tables. The third issue is whether the applicant has a continuing inability to work.

4. The relevant period for considering these issues is between the date the claim for DSP was lodged and 13 weeks thereafter.[3] As stated above, the Applicant lodged a claim for DSP on 1 September 2015.[4] Therefore, the period in which these issues are to be assessed is from that date to 1 December 2015 (the “Relevant Period”).

   [3] See, Social Security (Administration) Act 1999 (Cth) Sch 2, s 4.

   [4] Exhibit 1, T Documents, T16, pages 77-105.

   LEGISLATIVE FRAMEWORK

5. The relevant legislation is the Social Security Act 1991 (Cth) (“the Act”) and the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”). The qualification requirements for DSP are contained within s 94 of the Act.

6. Section 94(1)(a) of the Act requires that the claimant had an impairment at the relevant time. The impairment can be physical, intellectual or psychiatric.

7. Section 94(1)(b) of the Act requires that the claimant’s impairment is of 20 points or more under the Impairment Tables. To be given an impairment rating the condition causing impairment must be considered permanent and not temporary. To be permanent the condition must be fully diagnosed, treated and stabilised, and must be more likely than not to persist for more than two years.

8. In relation to mental health conditions the diagnosis of the condition must be made by an appropriately qualified medical practitioner, such as a psychiatrist, with evidence from a clinical psychologist if the diagnosis was not made by a psychiatrist.

9. Section 94(1)(c) of the Act requires that the claimant has a continuing inability to work. In order to satisfy this requirement, the claimant must either have a severe impairment within the meaning of s 94(3B) or have activity participated in a program of support. Section 94(3B) of the Act states that a claimant has a severe impairment if he or she has an impairment of 20 points or more under a single Impairment Table. Another requirement of s 94(1)(c) is that the impairment is of itself sufficient to prevent the claimant from doing 15 hours of work per week independently of a program of support within the next two years. Finally, s 94(1)(c) requires that the impairment is either sufficient of itself to prevent the claimant from undertaking a training activity during the next two years. Alternatively, the training activity is unlikely to enable the claimant to do any work independently of a program of support within the next two years because of the impairment.

   CONSIDERATION

10. The first requirement is that the Applicant had an impairment during the Relevant Period. This is not contentious in this matter as the Respondent concedes, and the Tribunal agrees, that during the Relevant Period the Applicant suffered from an impairment, in the form of a fracture to the left calcaneus and depression, for the purpose of s 94(1)(a) of the Act.

11. The Tribunal must consider whether the Applicant’s claimed conditions are permanent before considering an Impairment Rating under the Impairment Tables. For an impairment to be considered permanent, under the Determination, it must have been fully diagnosed, fully treated and fully stabilised within the Relevant Period. It must also be more likely than not, with consideration of the available evidence, to persist for more than two years.

12. In regards to the psychiatric condition, there is, before me, a complete absence of any reports from psychologists or psychiatrists regarding the mental health conditions as are required under the Act.

13. The Applicant has mental health issues, mainly depression, noted in a report from Dr Tun diagnosing depression, anxiety and panic attacks.[5] According to the report these conditions have existed since 12 December 2014. Dr Tun further reports the diagnosis was confirmed by a psychologist at the Mackay Base Hospital, but there are no reports available, to this Tribunal, to confirm this and I have seen nothing in the documentation that even refers to a psychological examination.[6]

    [5] Exhibit 1, T Documents, T14, page 68.

    [6] Exhibit 1, T Documents, T14, page 68.

14. In my opinion, due to the lack of present supporting evidence, no points can be assigned to the depression diagnosis without a report from a qualified psychiatrist or clinical psychologist to confirm it. A reference to a report by Dr Tun without the ability to sight that report is of no use. The condition cannot be considered fully diagnosed, fully treated and fully stabilised and will therefore not be assigned an Impairment Rating.

15. In regards to the lower limb condition, the Applicant’s fractured leg, to determine the Applicant’s position during the Relevant Period I have to look at the medical reports during that period and in the time leading up to it.

16. Dr Dorgeloh in a report dated 17 May 2016 says the Applicant now has severe arthritis of his subtalar joint and his ability to function in the foreseeable future is compromised.[7] Dr Dorgeloh  regards further treatment at the Mackay Base Hospital for subtalar fusion as being necessary.

    [7] Exhibit 1, T Documents, T27, page 129.

17. Dr Dorgeloh performed the initial surgery upon the Applicant after the injury. If the doctor is effectively saying that this further treatment at the Mackay Base Hospital is necessary then the condition is not fully treated or fully stabilised, as such the Applicant cannot succeed in their present claim for DSP.[8] Alternatively, if I were to take a more generous view in my interpretation of the doctor’s opinion in that the doctor was simply saying the treatment could relieve pain but not improve functionality, then at best the Applicant still only receives 5 points for the reasons that follow, and as such the Application must fail.

    [8] Exhibit 1, T Documents T27, page 129.

18. The Applicant gave oral evidence in person at the hearing and called two witnesses. In his evidence he spoke of an inability to move himself around and other problems with movement. He said he could stand for ten minutes but not much more. He was also able to be driven around various churches to collect charitable donations of food and things of that sort. He avoids leaving the house he lives in but can do so if necessary. He is able to move around but with difficulty and with pain and after some minutes he has to stop. He could only stand for a short period of time without having to prop himself up or sit down.

19. He called Tara Moore, the author of a Job Capacity Assessment report, but mainly to ask her about her qualifications which was of no assistance to the progress of the matter.

20. He also called Dr Tun, his treating GP, as a witness. Dr Tun, in a letter dated 12 September 2016,[9] maintained the Applicant should be granted 20 points under Impairment Table 3. When questioned by the Respondent as to whether he was referring to the period from 1 September 2015 (the date of the claim) to 1 December 2015 (the Relevant Period), the doctor became somewhat bewildered and ultimately conceded that he had meant the diagnoses to be as at the present time, which was the time when he signed the letter i.e. September 2016.

    [9] Exhibit 3, Photograph of Applicant’s foot.

21. I was given the impression that the Applicant’s treating GP, Dr Tun, did not appreciate the need to be able to assess the Applicant within the Relevant Period and as such his opinion is of no benefit for the purpose of the hearing at this Tribunal. There is no doubt that the Applicant’s condition has worsened over time and as it stands to date he may very well attract 20 points, under the Impairment Tables, but cannot do so in the context of an assessment within the Relevant Period.

22. The Applicant’s evidence before the Tribunal as to his inability to stand up for ten minutes or more and to get around the house, to get into a car and to be driven around to access church areas for donations, in my view leaves him with no more than a rating of 5 points under Table 3. There is no basis for assigning a higher rating.

23. As I have found that the Applicant does not satisfy s 94(1)(b) of the Act for either his physical or psychiatric condition within the Relevant Period, or in the alternative satisfies section 94(1)(b) of the act for his physical condition but is only able to achieve 5 points under the relevant Impairment Table, it is not necessary to consider whether the Applicant has a continuing inability to work as he does not qualify for DSP.

    CONCLUSION

24. For the reasons given at the hearing, and outlined above, the decision to reject the Applicant’s claim for DSP is affirmed.

I certify that the preceding 24 (twenty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member P Nolan

........................[Sgd]................................................

Associate

Dated:  20 January 2017

Date of hearing:	23 December 2016
Applicant:	In person
Solicitors for the Respondent:	Department of Human Services