Kumar and Secretary, Department of Social Services (Social services second review) - [2021] AATA 1823

Kumar and Secretary, Department of Social Services (Social services second review) [2021] AATA 1823 (21 June 2021)
Division:GENERAL DIVISION
File Number(s):2020/5419
Re:Nitesh Kumar
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Mr S Evans, Member
Date:21 June 2021
Place:Sydney

The decision under review is affirmed.
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Mr S Evans, Member
CATCHWORDS
SOCIAL SECURITY – disability support pension (“DSP”) – applicant seeking review of decision by Social Security & Child Support Division – issue to be determined: whether the applicant is entitled to DSP according to section 94 of the Social Security Act 1991 (Cth) (“the Act”) – provisions of the Act considered – provisions of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) considered – medical reports, surveillance reports and other records and material considered – decision under review affirmed.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
CASES
Fanning and Secretary, Department of Social Services [2014] AATA 447
Kumar and Secretary, Department of Social Services (Social services second review) [2020] AATA 1248
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
REASONS FOR DECISION
Mr S Evans, Member
21 June 2021

Nitesh Kumar (“Mr Kumar”) seeks review of a decision of the Social Services & Child Support Division (“AAT1”) of the Administrative Appeals Tribunal (“the Tribunal”) dated 17 August 2020 which affirmed a decision of a delegate of the Secretary for the Department of Social Services (“the Secretary”) to reject his claim for Disability Support Pension (“DSP”).
INTRODUCTION
Mr Kumar was working as a taxi driver in January 2001 when his taxi was involved in a motor vehicle accident. The airbag deployed and injured his right thumb. He also sustained soft tissue injuries to his lower back and both knees. He returned to work and in 2011 he injured his back when lifting a passenger’s luggage. It appears that he has not worked since.
Mr Kumar has made multiple claims for DSP including on 14 September 2015, 9 November 2015, 25 January 2016 and 10 May 2016. Each of Mr Kumar’s DSP claims were rejected by the Secretary and Mr Kumar subsequently sought to appeal the decisions.
The 14 September 2015, 9 November 2015 and 10 May 2016 decisions were reviewed by this Tribunal during a hearing held on 26 July 2019 (“the 2019 hearing”). On 8 May 2020 the Tribunal handed down its decision in Kumar and Secretary, Department of Social Services (Social services second review) [2020] AATA 1248 (“the 2020 Decision”). The 2020 Decision determined that Mr Kumar did not satisfy the requirements for the grant of DSP on 14 September 2015, 9 November 2015 and 10 May 2016 or within 13 weeks thereafter respectively.
The reviewable decision I am to consider relates to Mr Kumar’s application for DSP lodged on 25 January 2016 and rejected by the Secretary on 1 July 2016. The decision to reject this application was subsequently affirmed by an authorised review officer (“ARO”) and Mr Kumar sought review of that decision at the AAT1. The decision was affirmed by the AAT1 on 17 August 2020 (“the reviewable decision”). On 7 September 2020 Mr Kumar sought review of the AAT1 decision by the General Division of the Tribunal.
In his 25 January 2016 application for DSP Mr Kumar lists his disabilities, illnesses or injuries as “injuries to right hand, back, both knees, both hips, sciatica and suffer from depression etc”.
The relevant period and additional evidence
When reviewing the decision I am to consider the evidence as it relates to the 13 week period following application for DSP (“the relevant period”). The relevant period for the purposes of the reviewable decision is 25 January 2016 to 25 April 2016. Any evidence is relevant only in so much as it relates to Mr Kumar’s conditions during this time.
This is consistent with the approach outlined by Deputy President Handley in Fanning and Secretary, Department of Social Services [2014] AATA 447 in which he observed at [31]:
Evidence, such as medical reports, that come into being after the relevant period may still be relevant, but only in so far as they are referrable to the applicant’s condition during the relevant period.
Between making his application and the reviewable decision being made, the Secretary introduced new evidence relating to Mr Kumar’s DSP claims.
The Secretary commissioned a specialist in occupational medicine, Dr Keith Adam, to assess Mr Kumar in relation to his claims for DSP. Dr Adam consulted with Mr Kumar and considered the materials relating to his injuries and applications for DSP and prepared a report dated 28 June 2018 (“Dr Adam’s report”).
Surveillance reports dated 29 March 2018 and 8 June 2018 prepared by Procare are also in evidence (“the surveillance reports”). The surveillance reports were prepared following observation of Mr Kumar over the period 12,13 and 24 March 2018 and 4 and 5 June 2018.
Amongst other observations, the surveillance reports revealed that Mr Kumar was able to drive from his home, shop at a supermarket, carry a basket in his left hand and bend to select a large bottle of milk from the fridge at the supermarket. He could also use a self-serve checkout, carry a grocery bag in each hand and place groceries inside his vehicle. He was also able to walk 9 minutes to a bus stop prior to boarding a bus.
The surveillance reports and Dr Adam’s report were both prepared in 2018, and when considering them I must do so as they relate to the relevant period.
Dr Adam examined Mr Kumar in June 2018. At the 2019 hearing Dr Adam was asked to explain why he considered that his findings related not just to that point in time, but extended back a number of years to include the relevant periods. Dr Adam confirmed that that the nature of Mr Kumar’s injuries and the evidence he had before him made him comfortable looking back and assessing Mr Kumar in relation to the relevant period.
Also in evidence before the Tribunal is the transcript of the 2019 hearing, which was conducted by the Tribunal in reviewing the September and November 2015 and May 2016 decisions, as well as the subsequent decision of the Tribunal.
Paragraph 33(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth) provides that the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such a manner as it thinks appropriate. Consistent with paragraph 33(1)(c), an earlier decision of the Tribunal is information or material with which the Tribunal may inform itself.
The Secretary submits that the relevant periods considered in the 2020 Decision were 14 September 2015 to 14 December 2015, 9 November 2015 and 8 February 2016 and 10 May 2016 and 9 August 2016, making them proximate and overlapping with the relevant period in this matter. I am satisfied that this is the case and the evidence provided during the 2019 hearing may be relevant to the current application.
That said, it is appropriate to note that this is a de novo merits review of Mr Kumar’s application. I am required to stand in the shoes of the original decision maker, consider the evidence anew, and make the correct and preferable decision on the present state of the evidence.
ISSUE TO BE DETERMINED
The issue to be determined is whether Mr Kumar is qualified to receive DSP in relation to his claim dated 25 January 2016.
CRITERIA TO BE APPLIED
Qualification for Disability Support Pension
DSP is an income support payment for people with a disability that prevents them from working at least 15 hours per week. Section 94 of the Social Security Act 1991 (Cth) (“the Act”) sets out the criteria for qualification for payment of DSP: Section 94(1) of the Act provides that to qualify for the DSP:
(a)a person must have a physical, intellectual or psychiatric impairment, or impairments; and
(b)the impairment(s) must be rated at 20 points or more in accordance with the Impairment Tables; and
(c)the person must have a continuing inability to work as defined in the Act.
The Secretary accepts that Mr Kumar suffered from impairments during the relevant period and that paragraph 94(1)(a) of the Act is satisfied. Based on the evidence I agree with this assessment.
IMPAIRMENT TABLES
The first issue for determination is whether Mr Kumar’s conditions were fully diagnosed, treated and stabilised during the relevant period, and if so, what rating may be assigned for functional impairment in accordance with the Impairment Tables.
The Impairment Tables are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (“the Determination”). The Impairment Tables include rules for assigning a rating to determine the level of functional impact of impairments.
Subsection 5(2) of the Determination sets out the purpose and general design principles of the Impairment Tables. Section 6 provides that a condition can only be assigned an impairment rating if it is considered permanent. A condition is permanent if it has been fully diagnosed, fully treated and fully stabilised.
When applying the Tables, subsection 6(1) requires that in assessing functional capacity:
(1) The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.
Subsection 8(1) provides that when applying the Impairment Tables, symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.
Depression – Table 5 – Mental Health Function
In his application Mr Kumar states that he is suffering from depression. On 7 January 2016 Mr Kumar attended a face-to-face assessment with a Job Capacity Assessor who produced a report dated 15 January 2016 (“the 2016 JCA”). The 2016 JCA provides further detail of Mr Kumar’s mental health condition, describing his condition as having “some feature of PTSD”. It records past treatment as psychological therapy and counselling with a general psychologist in August 2013.
The Secretary contends that as Mr Kumar’s mental health condition is not supported by adequate evidence for it to be assigned an impairment rating.
A separate Employment Services Assessment report dated 18 August 2015 states that Mr Kumar reported experiencing a “range of reactive depressive symptoms” and refers to a medical report dated 5 May 2015 by Dr Gilhotra. The 2016 JCA notes that Mr Kumar advised that his general practitioner had referred him to a psychiatrist but that no appointment had been made at that time. In January 2018 Mr Kumar was also referred to a clinical psychologist but there is no evidence that he attended.
Impairment Table 5 requires that for a mental health condition to be considered fully diagnosed:
[t]he diagnosis of the condition must be made be 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).
As there is no evidence of such a diagnosis applicable to the relevant period, this condition is not eligible to be assigned an impairment rating.
Thumb injury – Table 2 – Upper Limb Function
Mr Kumar listed the injury to his right thumb on his DSP application and currently contends that it should be allocated 5 points under Impairment Table 2. The 2016 JCA records that he received treatment for his thumb in 2011 and 2012 and that he continues with home exercises for this condition. It was also noted that Mr Kumar was not anticipating any further treatment at that time.
The Secretary accepts that Mr Kumar’s thumb injury was fully diagnosed, treated and stabilised during the relevant period and based on the evidence I accept this to be the case.
Regarding the functional impact of his thumb injury, the 2016 JCA records that Mr Kumar is right hand dominant and unable to write for more than two minutes. Should he persist in using his hand for longer than two minutes Mr Kumar reported experiencing pain and swelling in his thumb.
Dr Henry Stenning is a musculoskeletal medicine practitioner who reported on 3 May 2001 that following the January 2001 accident a “K-wire was put in for a fracture on the proximal part of the thumb” and remained in place for approximately four weeks. Following a physical examination, Dr Stenning reported that Mr Kumar was tender at the base of his right thumb and had difficulty with his flexion and extension movements which he could not do fully.
Dr Adam considered the status of Mr Kumar’s thumb injury during the relevant period. He concludes that there is “inconsistency in the clinical findings” in relation to his injury and determines that his thumb injury is eligible for 0 points under Table 2, which is consistent with the findings of the April 2016 Health Professional Advisory Unit (“HPAU”) report.
The 2016 JCA records that Mr Kumar advised he could not write for more than two minutes, can use a mouse, cannot do up buttons or shoe laces or hold anything (glasses or cups) in his right hand.
Dr Adam opines that the mild restriction in the range of flexion in the joint is evidence Mr Kumar has developed some post-traumatic osteoarthritis in the joint. He considers that further treatment is not required.
Mr Kumar gave evidence that the joint in his right hand is broken and “badly crushed”. He reported that he continues to experience difficulties with writing, coordination and tasks which require using both hands. He claims to be restricted to using just the four fingers in his right hand, noting that he is right hand dominant.
The Secretary submits that the objective evidence before the Tribunal supports a finding that Mr Kumar is able to pick up, handle, manipulate and use most objects encountered on a daily basis without difficulty which would result in an impairment rating of 0 points.
During the 2019 hearing Mr Kumar described the impact of his spinal condition as preventing him from doing “many things” but conceded that he had no difficulty in overhead activities.
Time to time, I was lying on the bed, completely bedridden, so I did not attempt to pick up the shopping bag or go out from my home, time to time. So, saying that I went to pick up a shopping bag, because of my hand was good. I didn’t try to even pick up anything, because walking from my bedroom to the toilet was very difficult for me. So, I didn’t go to pick up anything. Okay? However, if you are saying that throughout this period, whether I was able to pick up, yes.
For the allocation of 5 points under Table 2, it is required that a person can manage most daily activities requiring the use of the hands and arms, but has some difficulty with most of the listed activities which include picking up heavier objects, such as a 2 litre carton of liquid or carrying a full shopping bag, handling very small objects, doing up buttons and reaching up or out to pick up objects.
Regarding Mr Kumar’s functional abilities, the surveillance reports indicate that Mr Kumar was able to carry on the activities of daily life without the impairments which he has previously reported. The observation of Mr Kumar which formed the basis of the surveillance reports took place in March and June 2018, approximately two years subsequent to the relevant period. Asked during the hearing if his conditions had worsened in the period following his application, Mr Kumar gave evidence that they had stayed the same, but that the conditions themselves varied from day to day.
I note that the 2016 JCA records Mr Kumar’s functional impairments resulting from his thumb injury as reported by Mr Kumar, rather than a medical practitioner. Mr Kumar’s self-reported impairments are broadly inconsistent with Dr Adam’s report and the activities he was observed to perform in the surveillance report. I agree with Dr Adam’s observation that there is no objective evidence to support the level of disability claimed by Mr Kumar. The introduction to Table 2 states that there must be corroborating evidence of impairment and self-reporting alone is not sufficient evidence.
Consequently, I am satisfied that appropriate impairment rating is 0 points for this condition.
Spinal condition – Table 4 – spinal function
The Secretary accepts that Mr Kumar’s lower back pain was fully diagnosed, treated and stabilised during the relevant period and relies on the findings of Dr Adam, who described the condition as degenerative osteoarthritis in the lumbar spine. However the Secretary considers that Mr Kumar’s spinal condition causes less than a mild functional impact on Mr Kumar and the appropriate impairment rating is 0 points.
Mr Kumar submits that he should be allocated 10 points under Table 4 and referred the Tribunal to reporting of Dr Gilhotra who confirms Mr Kumar was receiving physiotherapy and taking pain killers for his chronic lower back condition. He contends that the impairment caused by his spinal injury has been corroborated consistently since 2011.
The April 2016 HPAU Report recorded that in 2013 Mr Kumar was in a chronic state of pain and “unable to stand for more than 10 minutes, has difficulty bending, is unable to drive for extended periods, unable to carry more than 5kg and has significant difficulty using stairs”. The HPAU reporting appears in part based on Job Capacity Assessment report dated 24 July 2013 in which it is recorded that Mr Kumar’s symptoms “include a chronic state of pain in his lower back, and hips, he also reported bilateral sciatica”. The report continues:
Due to the nature of the condition [Mr Kumar] is generally unable to stand for more than 10 mins, has difficulty bending, is unable to drive for extended periods, is unable to carry more than 5kgs and has significant difficulty using stairs bending. The symptoms of also result in significant fatigue and a history of disrupted sleep. His pain is managed via endone, brufen and endep. He has been in receipt of the medication for the past 12 months. He reported a history of physiotherapy and specialist assessment.
The 2016 JCA Report records that Mr Kumar reported he is unable to sweep or mop, mow or garden or carry light groceries, supporting Mr Kumar’s contention that the condition has been corroborated consistently.
Table 4 requires that corroborating evidence is provided of a person’s impairment. The Secretary contends that Mr Kumar’s self-reported functional capabilities stand in stark contrast to those observed by Dr Adam and the surveillance reports.
Mr Kumar directed the Tribunal to a report from occupational therapist Maree van den Berg who conducted an assessment of Mr Kumar on 29 August 2014. Ms van den Berg writes
Mr Kumar did not wish to engage in many physical tasks during this assessment, so reported information is based on client self report, rather than demonstrated abilities, apart from testing hand grip strength which Mr Kumar did perform at the time of assessment.
Her subsequent report is based largely on self-reporting on the part of Mr Kumar.
Ms van den Berg writes that Mr Kumar reported that his pain begins in his lower back and extends down his legs and into his toes. Mr Kumar reported reduced capacity for sitting and standing and difficulty accessing stairs and ramps.
Dr Adam opines that the symptoms reported by Mr Kumar were not consistent with the objective clinical findings. He reports that the “distribution of the numbness described [by Mr Kumar] does not correspond with any anatomical distribution, and there were significant inconsistencies in the clinical examination”. He writes that whilst Mr Kumar demonstrated an extremely limited range of movement in formal testing, he “displayed a much greater range of movement when he stooped to pick up his phone when he dropped it” during his consultation with Dr Adam. He considers that these inconsistencies make it difficult to determine the symptoms and disability actually present during the relevant period “except to say that they would be substantially less than that described by Mr Kumar.”

I am satisfied that the evidence, particularly that which indicates Mr Kumar was able to shop, drive a car and walk around unassisted, supports a finding that the condition attracts an impairment rating of 0 points under Impairment Table 4.
Knee pain – Table 3 – lower limb function
The Secretary does not dispute that Mr Kumar’s knee pain was fully diagnosed, treated and stabilised during the relevant period. The Secretary contends that Mr Kumar was able to perform each of the activities referred to in the descriptors for an impairment rating of 0 points.
Mr Kumar submits that he should be allocated 10 points for Table 3. Dr Adam’s reported he has “no doubt” that Mr Kumar would have suffered from some aching in his knees “from time to time” during the relevant period but “not to the extent described by Mr Kumar”. Dr Adam, with reference to the surveillance footage, opines that Mr Kumar’s “claimed level of disability is greater than that demonstrated on surveillance videos”.
Dr Adam noted that in relation to the relevant period Mr Kumar “has been demonstrated to be able to walk around a shopping mall and a supermarket without a rest, and he does not have difficulty walking to local facilities. He has been observed to stand for more than ten minutes, and he does not use a lower limb prosthesis or a walking stick”. He concludes that Mr Kumar does not satisfy the criteria for 5 points, and must therefore be assigned 0 points for this condition.
Mr Kumar gave evidence at the 2019 hearing during which he confirmed he was able to pick up a container of milk from the lower fridge at the supermarket. He also confirmed at the hearing that he was recorded in the surveillance footage walking for ten minutes to a bus stop and then standing whilst waiting for the bus when a seat was available.
I accept the Secretary’s contention that Mr Kumar’s self-reported impairments are inconsistent with those which have been objectively observed. The shopping trip which Mr Kumar was observed undertaking in one of the surveillance reports demonstrated that he was able to walk and stand unaided and without any observable difficulty.
In the absence of corroborating medical evidence that Mr Kumar’s conditions have the functional impairment he describes, I prefer the evidence of Dr Adam, who is the only medical specialist who has had the benefit of looking at all the available, relevant records over a significant period.
On the evidence before me, I am satisfied that the appropriate impairment rating for Mr Kumar’s lower limb condition is 0 points.
Sleep apnoea condition – Table 1 – Functions requiring physical exertion and stamina
At the 2019 hearing Mr Kumar contended that he had sleep apnoea and the condition should be assigned 20 points under Table 1.
In evidence before the Tribunal is a report dated 29 August 2007 from Consultant Physician Dr Ruby Brillante FRACP who specialises in respiratory and sleep disorders. It is reported that Mr Kumar was to undertake a diagnostic sleep study. Dr Brillante subsequently diagnosed Mr Kumar with severe obstructive sleep apnoea. It is recorded that Mr Kumar was willing to trial CPAP therapy and undertake a “pressure determination study”. I am satisfied that Mr Kumar’s sleep apnoea condition was fully diagnosed on the basis of Dr Brillante’s report.
A medical report dated 20 August 2012 by respiratory physician Dr Paul J Despas records that Mr Kumar’s “Epworth Sleepiness Scale is normal meaning [Mr Kumar] does not have any tendency to doze off or fall asleep throughout the day”. Dr Despas writes that he is arranging for a study to be conducted at Westmead Hospital to ensure Mr Kumar is sleeping on his side and not having any significant sleep apnoea and severe hypoxemia. In what appears to be a reference to Mr Kumar’s sleeping position, Dr Despas advises that there are a “number of ways of dealing with this”.
This condition does not appear on Mr Kumar’s initial claim form for DSP and it appears that the first time Mr Kumar raised this condition for the purposes of his DSP claim was during the 2019 hearing. Having considered the evidence in relation to this condition I am not satisfied that it is eligible for an impairment rating as there is no evidence that Dr Despas’s recommendations of August 2012 were acted upon.
Further, even if this condition were fully diagnosed, treated and stabilised and eligible for an impairment rating, the evidence of both Dr Despas and Dr Brillante does not indicate that the condition causes Mr Kumar any functional impairment. Consequently, this condition would be allocated 0 points.
CONCLUSION
As Mr Kumar’s impairments do not rate 20 or more points on the Impairment Tables, he is unable to satisfy paragraph 94(1)(b) of the Act and his claim for DSP cannot succeed. It is therefore not necessary to consider whether he also had a continuing inability to work during the relevant period.
DECISION
For the reasons stated above, the decision under review is affirmed.

I certify that the preceding 69 (sixty-nine) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

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Associate
Dated: 21 June 2021

Date(s) of hearing: 8 March 2021

Applicant: Self-represented

Solicitor for the Respondent: Mr M Hawker, Sparke Helmore Lawyers

Date(s) of hearing:	8 March 2021
Applicant:	Self-represented
Solicitor for the Respondent:	Mr M Hawker, Sparke Helmore Lawyers