Kumar and Secretary, Department of Social Services (Social services second review)
[2020] AATA 1248
•8 May 2020
Kumar and Secretary, Department of Social Services (Social services second review) [2020] AATA 1248 (8 May 2020)
Division: GENERAL DIVISION
File Numbers: 2017/7009 and 2018/2291
Re:Nitesh Kumar
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
File Numbers: 2017/7233 and 2018/2158
Re:Secretary, Department of Social Services
APPLICANT
AndNitesh Kumar
RESPONDENT
DECISION
Tribunal:Senior Member PJ Clauson AM
Member D Mitchell
Date:8 May 2020
Place:Brisbane
The Tribunal sets aside the decisions under review and substitutes a decision that Mr Kumar did not satisfy the requirements of sections 94(1)(b) and (c) of the Social Security Act 1991 (Cth) at the time of making his claims for the Disability Support Pension on 14 September 2015, 9 November 2015 and 10 May 2016 or within 13 weeks thereafter respectively.
....................[SGD]........................ ...........[SGD].............
Senior Member PJ Clauson AM Member D Mitchell
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – DSP – whether medical conditions fully diagnosed, fully treated and fully stabilised – whether 20 points or more under the Impairment Tables during the Relevant Period – impairments not more than 20 points – whether program of support requirements have been met – program of support not completed – no exemption to participation – whether there is a continuing inability to work – no continuing inability to work – decisions under review set aside
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Drake v Minister for Immigration and Ethnic Affairs (1970) 46 FLR 409; 24 ALR 577
Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALDA 133
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Harris and Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Kumar v Secretary, Department of Social Services [2018] FCA 2119
Kumar v Secretary, Department of Social Services [2017] FCA 158
Kumar v Secretary, Department of Social Services [2016] FCCA 640
Kumar and Secretary, Department of Social Services [2014] AATA 442
REASONS FOR DECISION
Senior Member PJ Clauson AM
Member D Mitchell8 May 2020
INTRODUCTION
Both Mr Nitesh Kumar (Mr Kumar) and the Secretary Department of Social Services (the Secretary) are seeking review of two decisions of the Social Services and Child Support Division (SSCSD) of the Tribunal. These two decisions relate to three claims for the Disability Support Pension (DSP) made by Mr Kumar.
The first reviewable decision[1] was made by the SSCSD on 1 November 2017[2] and set aside the decisions to reject Mr Kumar’s claims for DSP lodged on 14 September 2015 and 10 May 2016 and remitted the matter back to the Secretary for further consideration with the direction that:[3]
(a)Mr Kumar had a total impairment rating of 20 points at the time of his claims for DSP;
(b)Mr Kumar’s active participation in a program of support (POS) be investigated; and
(c)Mr Kumar’s qualification for DSP at the time of the claims be reconsidered.
[1] Relating to Tribunal file numbers 2017/7009 and 2017/7233.
[2] Exhibit 1, T Documents, Volume 1, T5, pages 15-25, Decision of the SSCSD.
[3] Exhibit 1, T Documents, Volume 1, T5, page 15, Decision of the SSCSD.
The second reviewable decision[4] was made by the SSCSD on 6 April 2018[5] and set aside a decision to reject Mr Kumar’s claim for DSP lodged on 9 November 2015 and remitted the matter back to the Secretary for further consideration with the direction that:[6]
(a)Mr Kumar had a total impairment rating of 20 points and an ongoing work capacity of less than 15 hours per week at the time of his claim for DSP;
(b)Mr Kumar’s active participation in a POS be investigated; and
(c)Mr Kumar’s qualification for DSP at the time of the claim be reconsidered.
[4] Relating to Tribunal file numbers 2018/2158 and 2018/2291.
[5] Exhibit 2, T Documents, T5, pages 21-28, Decision of the SSCSD.
[6] Exhibit 2, T Documents, T5, page 21, Decision of the SSCSD.
BACKGROUND AND CLAIM HISTORY
Mr Kumar suffered a workplace injury in January 2001 and sustained injuries to his right thumb, knees and back. Mr Kumar returned to work on reduced hours and suffered a further workplace injury in May 2011. He has not worked since.[7] Mr Kumar has in the past lodged workers’ compensation claims in relation to his injuries and has been awarded compensation for permanent impairment.
[7] Exhibit 7, Affidavit of Mr Kumar, dated 29 November 2018, Annexure 5 – Medical Assessment Certificate dated 5 March 2014.
Since 2012, Mr Kumar has made a number of claims for DSP, all of which have resulted in his claims being refused. Mr Kumar has engaged in the departmental, Tribunal and/or Federal Court processes in relation to his claims for DSP.
Reviewable Decision 1
On 14 September 2015, Mr Kumar lodged a claim for DSP (September 2015 Claim).[8] On the claim for DSP form Mr Kumar listed his disabilities or medical conditions that significantly affected his ability to work as: “injuries to right hand, back, both knees, both hips, sciatica and suffer from depression etc”.[9]
[8] Exhibit 1, T Documents, Volume 1, T77, pages 246-276, Claim for Disability Support Pension – 14 September 2015 claim.
[9] Exhibit 1, T Documents, Volume 1, T77, page 260, Claim for Disability Support Pension – 14 September 2015 claim.
On 7 January 2016, Mr Kumar attended a face-to-face assessment with a Job Capacity Assessor (JCA).[10] In a report dated 15 January 2016[11] the JCA recommended that:[12]
(a)Mr Kumar's lower limb and spinal conditions were fully diagnosed, although his upper limb was not, and none were fully treated or fully stabilised on the basis that there had been insufficient investigation and treatment in the prior 24 months. The JCA recommended updated diagnostic imaging, and noted that Mr Kumar may benefit from continued medical management and allied health intervention, including specialist review and secondary rehabilitation;
(b)Mr Kumar's depression and anxiety were not fully diagnosed, fully treated and fully stabilised on the basis of there being no documentary evidence from either a clinical psychologist or psychiatrist, nor any evidence of optimal treatment; and
(c)Mr Kumar had a baseline and future work capacity within 2 years, with intervention, of 8-14 and 15-22 hours per week respectively.
[10] Exhibit 1, T Documents, Volume 2, T84, page 345, Job Capacity Assessment Report.
[11] Exhibit 1, T Documents, Volume 2, T84, pages 345-353, Job Capacity Assessment Report.
[12] Summary referred to in part as provided at Exhibit 5, Secretary’s Statement of Issues, Facts and Contentions, page 3, paragraph 4.2 of the Job Capacity Assessment Report found at Exhibit 1, T Documents, Volume 2, T84, pages 345-353.
The September 2015 Claim was rejected on 17 January 2016, on the basis that Mr Kumar did not have an impairment rating of 20 points or more under the Impairment Tables.[13] On 25 January 2016, Mr Kumar sought review of this decision,[14] and his claim was referred to Centrelink’s Health Professional Advisory Unit (HPAU) for further opinion.
[13] Exhibit 1, T Documents, Volume 2, T85, pages 354-355, Centrelink Notice: Rejection of your claim for Disability Support Pension – 14 September 2015 claim.
[14] Exhibit 1, T Documents, Volume 2, T121, page 796, Customer contact file note.
The HPAU, having considered the available medical evidence, produced a report dated 26 April 2016.[15] The HPAU disagreed with the recommendations of the JCA and considered that Mr Kumar’s upper limb, lower limb and spinal conditions were fully diagnosed, fully treated and fully stabilised and could be assigned impairment points under the Impairment Tables. The HPAU formed the view that the impairments arising from these conditions collectively rated 15 points under the Impairment Tables, made up of:[16]
(a)Pain in right thumb – 0 points, Table 2;
(b)Painful both knees – 10 points, Table 3; and
(c)Lower back pain – 5 points, Table 4.
[15] Exhibit 1, T Documents, Volume 2, T89, pages 445-448, Health Professional Advisory Unit Opinion.
[16] Exhibit 1, T Documents, Volume 2, T89, pages 445-448, Health Professional Advisory Unit Opinion.
On 5 May 2016, an Authorised Review Officer (ARO) agreed with the opinion of the HPAU and affirmed the decision to reject Mr Kumar’s claim for DSP.[17]
[17] Exhibit 1, T Documents, Volume 2, T90, pages 449-455, Decision and Notes of Authorised Review Officer – 14 September 2015 claim.
On 10 May 2016, Mr Kumar made a further claim for DSP (May 2016 Claim).[18]
[18] Exhibit 1, T Documents, Volume 2, T91, pages 456-486, Claim for Disability Support Pension – 10 May 2016 claim.
The May 2016 Claim was rejected on 16 May 2016[19] on the basis, that in the absence of any new medical evidence, the evidence considered by the ARO on 5 May 2016 was sufficient to assess his claim lodged soon after.[20] Mr Kumar requested a review of this decision, which was affirmed by an ARO on 5 September 2016.[21]
[19] Exhibit 3, Supplementary T Documents, ST3, pages 4-5, Letter: rejection of claim for Disability Support Pension – 10 May 2016 claim.
[20] Exhibit 1, T Documents, Volume 2, T121, pages 801-802, Centrelink customer contact file notes.
[21] Exhibit 1, T Documents, Volume 2, T98, pages 502-507, Decision and Notes of Authorised Review Officer – 10 May 2016 claim.
Mr Kumar sought a first-tier review of the ARO decisions in relation to his September 2015 and May 2016 Claims by the SSCSD. On 1 November 2017, the SSCSD set aside the ARO decisions, finding that the impairments arising from Mr Kumar’s conditions collectively rated 20 points under the Impairment Tables, made up of:[22]
(a)Pain in right thumb – 5 points, Table 2;
(b)Painful both knees – 10 points, Table 3; and
(c)Lower back pain – 5 points, Table 4.
[22] Exhibit 1, T Documents, Volume 1, T5, pages 15-25, Decision of the SSCSD.
The SSCSD was unable to make a finding as to whether Mr Kumar had a continuing inability to work.[23]
[23] Exhibit 1, T Documents, Volume 1, T5, pages 15-25, Decision of the SSCSD.
Following this, on 23 November 2017[24] and 7 December 2017[25] respectively, Mr Kumar and the Secretary lodged applications for a second-tier review of the decision.[26]
[24] Exhibit 1, T Documents, Volume 1, T2, pages 3-10, Application for Review of Decision submitted by Mr Kumar (2017/7009).
[25] Exhibit 1, T Documents, Volume 1, T4, pages 13-14, Application for Review of Decision submitted by the Secretary (2017/7233).
[26] These applications are known as Tribunal file numbers 2017/7009 and 2017/7233.
Reviewable Decision 2
On 9 November 2015, Mr Kumar lodged a claim for DSP (November 2015 Claim).[27] The claim was rejected on 1 July 2016[28] and affirmed by an ARO on 22 February 2018.[29] The ARO relied upon the opinion, amongst other evidence, of the HPAU dated 26 April 2016 and found that Mr Kumar did not have an impairment rating of 20 points or more under the Impairment Tables.[30]
[27] Exhibit 1, T Documents, Volume 1, T78, pages 277-307, Claim for Disability Support Payment – 9 November 2015 claim.
[28] Exhibit 2, T Documents, T14, pages 79-80, Letter: Rejection Claim for Disability Support Pension – 9 November 2015 claim.
[29] Exhibit 2, T Documents, T23, pages 104-107, Decision and Notes of Authorised Review Officer – 9 November 2015 claim.
[30] Exhibit 2, T Documents, T23, pages 104-107, Decision and Notes of Authorised Review Officer – 9 November 2015 claim.
Mr Kumar sought a first-tier review of the ARO decision by the SSCSD.[31] On 6 April 2018, the SSCSD set aside the ARO decision, finding that the impairments arising from Mr Kumar’s conditions collectively rated 20 points under the Impairment Tables, made up of:[32]
(a)Pain in right thumb – 5 points, Table 2;
(b)Painful both knees – 10 points, Table 3; and
(c)Lower back pain – 5 points, Table 4.
[31] Exhibit 2, T Documents, T25, pages 112-119, Application for review by SSCSD.
[32] Exhibit 2, T Documents, T5, pages 21-28, Decision of SSCSD.
The SSCSD found that Mr Kumar had an ongoing work capacity of less than 15 hours per week, however, was unable to make a finding as to whether Mr Kumar satisfied the POS requirements.[33]
[33] Exhibit 2, T Documents, T5, pages 21-28, Decision of SSCSD.
Following this, on 24 April 2018[34] and 30 April 2018[35] respectively, the Secretary and Mr Kumar lodged applications for a second-tier review of the decision.[36]
[34] Exhibit 2, T Documents, T2, pages 3-10, Application for review made by the Secretary (2018/2158).
[35] Exhibit 2, T Documents, T4, pages 13-20, Application for review made by Mr Kumar (2018/2291).
[36] These applications are known as Tribunal file numbers 2018/2158 and 2018/2291.
At the request of the Secretary, Dr Keith Adam , specialist occupational and environmental physician, examined Mr Kumar and produced a report dated 28 June 2018.[37] Dr Adam formed the view that Mr Kumar’s upper limb, lower limb and spinal conditions were fully diagnosed, fully treated and fully stabilised and assessed the impairments arising from these conditions as:[38]
(a)Upper Limbs – 0 points, Table 2;
(b)Lower Limbs – 0 points, Table 3; and
(c)Spine – 0 points, Table 4.
[37] Exhibit 5, Secretary’s Statement of Issues, Facts and Contentions, Attachment A, Report by Dr Keith Adam dated 28 June 2018, pages 1-19.
[38] Exhibit 5, Secretary’s Statement of Issues, Facts and Contentions, Attachment A, Report by Dr Keith Adam dated 28 June 2018, pages 1-19.
THE HEARING
A Hearing was held on 26 July 2019. At the Hearing, Mr Kumar appeared in person, was self-represented and gave evidence under oath. The Secretary was represented by Mr Matthew Hawker from Sparke Helmore Lawyers.
The Hearing commenced at 10 am and ended after 6.30 pm, breaks were provided when required.
Prior to the Hearing Mr Kumar had advised the Tribunal that he required the assistance of a Hindi interpreter for the Hearing. The Tribunal arranged an interpreter. At the outset of the Hearing Mr Kumar told the Tribunal he would not use the services of the interpreter for the entire proceedings, however, if there were technical terms that he did not understand he would need the assistance of the interpreter in those circumstances.[39] The Tribunal notes that while the interpreter was present for the whole Hearing, Mr Kumar at no stage sought her assistance.
[39] Transcript, page 7.
The evidence before the Tribunal included:
Exhibit 1 – Section 37 T-Documents in relation to Reviewable Decision 1 (consisting of three volumes, pages 1-1105) filed by the Secretary on 13 July 2018
Exhibit 2 – Section 37 T-Documents in relation to Reviewable Decision 2 (pages 1‑141) filed by the Secretary on 13 July 2018
Exhibit 3 – Supplementary T-Documents in relation to Reviewable Decision 1 (pages 1-5) filed by the Secretary on 13 July 2018
Exhibit 4 – Supplementary T-Documents in relation to Reviewable Decisions 1 and 2, (pages 6-260) filed by the Secretary on 17 July 2018
Exhibit 5 – Secretary’s Statement of Issues, Facts and Contentions and Attachments filed by the Secretary on 17 July 2018
Exhibit 6 – Claimant’s Submissions filed by Mr Kumar on 23 July 2018
Exhibit 7 – Affidavit of Mr Kumar dated 29 November 2018 and filed the same day
Exhibit 8 – Copy of subpoena to Royal Prince Alfred Hospital issued on 3 May 2001 and filed by Mr Kumar on 4 January 2018
Exhibit 9 – Medical Report of Dr Henry Stenning dated 3 May 2001 and filed by Mr Kumar on 4 January 2018
Exhibit 10 – Surveillance evidence of Mr Kumar dated 12,13, 24 March 2018 and 4 and 5 June 2018 filed by the Secretary on 18 April 2019
Exhibit 11 – Mr Kumar’s further material (pages 1-642) filed by Mr Kumar on 23 July 2019
Exhibit 12 – Mr Kumar’s material relating to Court and Tribunal Judgements (pages 1-303) filed by Mr Kumar on 23 July 2019
Exhibit 13 – Medical Report of Dr Thomas A Silva, dated 9 February 2012, handed up at Hearing, also contained in Exhibit 6
The Tribunal notes that at the outset of the Hearing it was identified that the material submitted by Mr Kumar to the Tribunal when lodging his 2017 application for review was not listed on the exhibit register. It was confirmed with Mr Kumar and the Secretary that the majority of the same 900 pages or so were duplicated throughout the material contained in the T-documents and further submissions made by Mr Kumar. Mr Kumar agreed that the Hearing should proceed and that if, through the course of the Hearing, he referred to any material that was not before the Tribunal it would then be exhibited.[40] Following the Hearing, the Tribunal had an associate cross reference the material listed on the Supporting Document Index attached to Mr Kumar’s application for review against all other material contained in the exhibits set out above, and as a result determined that all relevant material filed by Mr Kumar was before the Tribunal.
[40] Transcript, pages 6-9.
THE LAW
The relevant law in assessing a person’s qualification for DSP is found in the
Social Security Act 1991 (Cth) (the Act), the Social Security (Administration) Act1999 (Cth) (the Administration Act), the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination) and the Social Security (Active Participation for Disability Support Pension) Determination 2014 (Active Participation Determination). The following is a summary of the key DSP qualification requirements.Section 94 of the Act prescribes the criteria that must be met to qualify for the payment of DSP. In the present case, the predominate qualification questions before the Tribunal are:
1.Does Mr Kumar have a physical, intellectual or psychiatric impairment;[41]
2.Do Mr Kumar’s impairments attract 20 points or more under the Impairment Tables;[42] and
3.Does Mr Kumar have a continuing inability to work?[43]
[41] Section 94(1)(a) of the Act.
[42] Section 94(1)(b) of the Act.
[43] Section 94(1)(c) of the Act.
The Impairment Tables are set out in the Determination, which is made pursuant to section 26 of the Act and came into force on 1 January 2012. Section 5(2) of the Determination sets out the purpose and general design principles of the Impairment Tables insofar that the Tables:
(a)unless otherwise authorised by law, are only to be applied to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act; and
(b)are function based rather than diagnosis based; and
(c)describe functional activities, abilities, symptoms and limitations; and
(d)are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.
Under the Determination, the impairment of a person is limited to being assessed on the basis of what a person can, or could do, not on the basis of what the person chooses to do or what others do for them.[44] The Impairment Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.[45] Self-reported symptoms in relation to the person’s condition can only be taken into account where there is corroborating evidence.[46]
[44] Section 6(1) of the Determination.
[45] Section 6(2) of the Determination.
[46] Section 8(1) of the Determination.
Further, an impairment rating can only be assigned to an impairment: if the person’s condition causing the impairment is “permanent”; and the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than 2 years.[47]
[47] Section 6(3) of the Determination.
Permanent takes on a specific meaning for the purposes of DSP. To be considered permanent for DSP the condition must: have been fully diagnosed by an appropriately qualified medical practitioner; have been fully treated; have been fully stabilised; and be more likely than not, in light of the available evidence, to persist for more than 2 years.[48] As such, a condition could be considered permanent from the perspective of being life‑long, but still not meet the definition under the DSP requirements.
[48] Sections 6(3) and (4) of the Determination.
To determine whether a condition has been fully diagnosed by an appropriately qualified medical practitioner, and whether it has been fully treated, it must be considered: whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or planned in the next 2 years.[49]
[49] Section 6(5) of the Determination.
A condition is considered to be fully stabilised if:[50]
(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.
[50] Section 6(6) of the Determination.
Reasonable treatment is treatment that: is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[51]
[51] Section 6(7) of the Determination.
In selecting the applicable Impairment Table, the Determination considers it necessary to: identify the loss of function; refer to the Table related to the function affected; and then identify the correct impairment rating.[52]
[52] Section 10 of the Determination.
In assessing impairments where a single condition causes multiple impairments each impairment should be assessed under the relevant Table. Where more than one Table is used to assess multiple impairments resulting from the single condition, impairment ratings for the same impairment must not be assigned under more than one Table.[53] Where multiple conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.[54]
[53] Sections 10(3) and (4) of the Determination.
[54] Sections 10(5) and (6) of the Determination.
An impairment rating: can only be assigned in accordance with the rating points in each Impairment Table; cannot be assigned between consecutive impairment ratings; if an impairment is considered as falling between two impairment ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[55]
[55] Section 11(1) of the Determination.
In order to have a continuing inability to work which is required to satisfy section 94(1)(c) of the Act a person must meet the criteria of section 94(2), which requires that a person must:
(a)if they do not have a severe impairment, have actively participated in a POS; and
(b)be unable to work for at least 15 hours per week independently of a POS within the next 2 years; and
(c)be unable to participate in a training activity during the next 2 years or if the impairment does not prevent the person from undertaking a training activity – such activity is unlikely (because of the impairment) to enable the person to do any work independently of a POS within the next 2 years.
A person’s impairment is considered to be a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.[56]
[56] Section 94(3B) of the Act.
The requirements that must be met for a person to be considered to have actively participated in a POS[57] are set out in the Active Participation Determination.
[57] Section 94(3C) of the Act.
The Active Participation Determination sets out that a person has actively participated in a POS if the person has complied with the requirements of the POS and participated in a POS during the relevant period,[58] provided the required information regarding the applicable POS[59] and one of the following applies:[60]
(a)The person participated in the POS for at least 18 months during the relevant period;[61] or
(b)The duration of the POS was less than 18 months and the person completed the entire program during the relevant period;[62] or
(c)The POS was terminated before the end of the relevant period because the person was unable, solely because of his or her impairment, to improve his or her capability to prepare for, find or maintain work through continued participation in the program;[63] or
(d)At the end of the relevant period, the person is participating in the POS and the person is prevented, solely because of his or her impairment, from improving his or her capacity to prepare for, find or maintain work through continued participation in the program.[64]
[58] Section 7(1)(a) of the Active Participation Determination.
[59] Section 7(1)(c) and section 7(6) of the Active Participation Determination.
[60] Section 7(1)(b) of the Active Participation Determination.
[61] Section 7(2) of the Active Participation Determination.
[62] Section 7(3) of the Active Participation Determination.
[63] Section 7(4) of the Active Participation Determination.
[64] Section 7(5) of the Active Participation Determination.
The relevant period (POS Period) in relation to the requirements set out in the Active Participation Determination, in relation to a person whose impairment is not a severe impairment, is the 3 years prior to the day on which the claim for DSP is made or is taken to have been made by the person.[65]
[65] Section 5 of the Active Participation Determination.
The Administration Act sets out that qualification for DSP, and, therefore, assessment of the relevant impairment ratings, is to be determined at the date of claim or where a person is not qualified on that date but becomes qualified within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[66]
[66] Sections 41 and 42; clauses 3 and 4(1) of Schedule 2, Part 2 of the Administration Act.
Both the Tribunal and the Federal Court have concluded that there is a requirement to look at an Applicant’s circumstances as they were, and the evidence that was available at the time of the application for DSP and the 13 weeks which followed it (the Relevant Period). Further, medical and other evidence that is provided outside the Relevant Period may be considered, however, only insofar as it is referrable to an Applicant’s condition during the Relevant Period.[67]
[67] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]; Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALD 133, 139 at [32]; Gallacher v Secretary, Department of Social Services[2015] FCA 1123 at [25]-[28].
RELEVANT PERIOD
The Relevant Periods in these matters commenced on the dates Mr Kumar lodged his claims for DSP being 14 September 2015, 9 November 2015 and 10 May 2016, or within the 13 weeks thereafter respectively.
The Tribunal is, therefore, limited to considering evidence as far as it relates to Mr Kumar’s medical conditions and functional impairments as they were during the Relevant Periods, being between:
(a)14 September 2015 and 14 December 2015;
(b)9 November 2015 and 8 February 2016; and
(c)10 May 2016 and 9 August 2016.
ISSUES
The applications before the Tribunal concern Mr Kumar’s qualification for DSP during the Relevant Periods. At Hearing Mr Kumar sought to raise other issues, which will be dealt with later in this decision.
Based on the evidence before the Tribunal it is clear that Mr Kumar had impairments during the Relevant Periods and, therefore, has met the requirements of section 94(1)(a) of the Act. This point is not in contention.[68] The Secretary considered Mr Kumar’s impairments included upper limb,[69] lower limb,[70] spinal[71] and mental health[72] conditions. At Hearing Mr Kumar further raised a sleep apnoea condition.[73]
[68] Exhibit 5, Secretary’s Statement of Issues, Facts and Contentions, page 8, paragraph 5.10.
[69] Exhibit 5, Secretary’s Statement of Issues, Facts and Contentions, pages 9-10, paragraphs 5.19-5.23.
[70] Exhibit 5, Secretary’s Statement of Issues, Facts and Contentions, pages 10-11, paragraphs 5.24-5.28.
[71] Exhibit 5, Secretary’s Statement of Issues, Facts and Contentions, pages 11-12, paragraphs 5.29-5.33.
[72] Exhibit 5, Secretary’s Statement of Issues, Facts and Contentions, page 12, paragraphs 5.34-5.36.
[73] Transcript, page 27.
The remaining issues for the Tribunal to consider are:
1.Whether, within the Relevant Periods, Mr Kumar’s impairments attracted 20 points or more under the Impairment Tables; and
2.If so, did Mr Kumar have a continuing inability to work?
WRITTEN EVIDENCE AND SUBMISSIONS
There are well over 2,500 pages of evidence filed in relation to these matters. Mr Kumar filed a large number of documents that date back to 2001 relating to his injuries, workers’ compensations claims, medical reviews and claims for social security together with information regarding the associated return to work, treatment and legal processes he has engaged in. Mr Kumar indexed the material he submitted. The Tribunal notes that a substantial amount of the materials lodged by Mr Kumar have been lodged by him on more than one occasion and, in part, duplicate those contained in the section 37 T‑Documents.
While the Tribunal understands the relevance that the material submitted by Mr Kumar has to him, a significant amount of that material is of little assistance to the Tribunal other than in providing background.
In the course of these proceedings the Secretary provided new evidence in the form of surveillance reports and a medical report of Dr Adam.
The Tribunal has had the benefit of having all of the historical material before it, together with the new material gathered for the purposes of the present reviews. To that end, and given that, as set out below, the diagnosis, treatment and stabilisation of Mr Kumar’s upper limb, lower limb and spine conditions have been accepted, the Tribunal does not consider it necessary to outline the historical evidence in relation to those issues in this decision.
Reports regarding Mr Kumar’s sleep apnoea condition
Mr Kumar raised his sleep apnoea condition for the first time at the Hearing. He referred the Tribunal to two reports of Dr Ruby Brillante dated 29 August 2007[74] and 7 November 2007[75] and three reports of Dr Paul Despas dated 31 October 2011,[76] 27 June 2012[77] and 20 August 2012.[78]
[74] Exhibit 11, Mr Kumar’s further material (pages 1-642) filed by Mr Kumar on 23 July 2019, Report of Dr Ruby Brillante, dated 29 August 2007, page 41.
[75] Exhibit 11, Mr Kumar’s further material (pages 1-642) filed by Mr Kumar on 23 July 2019, Report of Dr Ruby Brillante dated 7 November 2007, page 42.
[76] Exhibit 11, Mr Kumar’s further material (pages 1-642) filed by Mr Kumar on 23 July 2019, Report of Dr Despas, dated 31 October 2011, page 35.
[77] Exhibit 11, Mr Kumar’s further material (pages 1-642) filed by Mr Kumar on 23 July 2019, Report of Dr Despas dated 27 June 2012, page 28.
[78] Exhibit 11, Mr Kumar’s further material (pages 1-642) filed by Mr Kumar on 23 July 2019, Report of Dr Despas dated 20 August 2012, pages 24-25.
In the report dated 7 November 2007, Dr Brillante, as a result of a diagnostic sleep study, diagnosed Mr Kumar as having severe obstructive sleep apnoea. She indicated that she had discussed the results of the study with Mr Kumar and the options for treatment.[79]
[79] Exhibit 11, Mr Kumar’s further material (pages 1-642) filed by Mr Kumar on 23 July 2019, Report of Dr Ruby Brillante dated 7 November 2007, page 42.
In the report dated 31 October 2011, Dr Despas advised he would refer Mr Kumar for a sleep study.[80] In the report dated 27 June 2012, Dr Despas advised that Mr Kumar’s Epworth Sleepiness Scale was normal and that if he lay on his back he developed quite severe sleep apnoea, however, when he was on his side he was okay. Dr Despas said that, at that point, postural therapy was to be considered and he had given Mr Kumar a few tips about how to avoid lying flat on his back, if that did not work the only other alternative was to treat him with CPAP. [81] Dr Despas confirmed these views in his report dated 20 August 2012 and diagnosed that Mr Kumar had severe sleep apnoea, when he slept supine, and this was associated with severe hypoxemia. Dr Despas said that Mr Kumar’s Epworth Sleepiness Scale was normal, meaning he did not have any tendency to doze off or fall asleep throughout the day.[82]
[80] Exhibit 11, Mr Kumar’s further material (pages 1-642) filed by Mr Kumar on 23 July 2019, Report of Dr Despas, dated 31 October 2011, page 35.
[81] Exhibit 11, Mr Kumar’s further material (pages 1-642) filed by Mr Kumar on 23 July 2019, Report of Dr Despas dated 27 June 2012, page 28.
[82] Exhibit 11, Mr Kumar’s further material (pages 1-642) filed by Mr Kumar on 23 July 2019, Report of Dr Despas dated 20 August 2012, pages 24-25.
Surveillance Report
At the request of the Secretary, surveillance of Mr Kumar was undertaken by the Procare Group. The surveillance instructions were:[83]
Conduct surveillance on the Claimant’s daily activities in relation to his alleged injury paying particular attention to whether the Claimant undertakes activities in excess of his reported capabilities and displays any visible restrictions in regards to his:
·right hand and thumb;
·overall upper limb functionality;
·spine;
·knees (bilateral); and
·lower limbs, specifically the range of movement in the hips.
Also observe the Claimant’s attendance at his scheduled appointments.
[83] Exhibit 10, Surveillance evidence of Mr Kumar dated 12, 13, 24 March 2018 and 4 and 5 June 2018; Surveillance Report dated 29 March 2018.
Surveillance was undertaken of Mr Kumar on 12, 13 and 24 March 2018, and 4 and 5 June 2018, which resulted in two surveillance reports dated 29 March 2018 and 8 June 2018.
The Surveillance Report dated 29 March 2018 revealed that Mr Kumar:[84]
·Drove approximately 550 metres to take his child to school.
·On 13 March 2018 drove from his home, approximately 3.8 kilometres to Westfield, Mt Gravatt where he attended a variety of shops including a Woolworths. Inside the supermarket Mr Kumar carried a basket in his left hand and bent to select a large bottle of milk from the fridge. He used a self-serve checkout, then returned to his vehicle carrying a grocery bag in each hand, placing the groceries inside his vehicle. Mr Kumar then walked back into the shopping centre attending a Daiso Japanese store.
[84] Exhibit 10, Surveillance evidence of Mr Kumar dated 12, 13, 24 March 2018 and 4 and 5 June 2018; Surveillance Report dated 29 March 2018.
The Surveillance Report dated 8 June 2018 revealed that Mr Kumar:[85]
·Drove approximately 550 metres to take his child to school.
·On 4 June 2018, attended Dr Adam’s office on Ann Street Brisbane dressed in casual attire and carrying paperwork in his left hand. When he exited the building, he walked 9 minutes to a bus stop on Adelaide Street and a short time later boarded a bus.
[85] Exhibit 10, Surveillance evidence of Mr Kumar dated 12, 13, 24 March 2018 and 4 and 5 June 2018; Surveillance Report dated 8 June 2018.
Report of Dr Adam
At the request of the Secretary, Dr Adam examined Mr Kumar in relation to his claims for DSP on 4 June 2018. As a result, Dr Adam provided a report, some 19 pages in length, dated 28 June 2018.[86]
[86] Exhibit 5, Secretary's Statement of Issues, Facts and Contentions, Attachment A, Report of Dr Keith Adam dated 28 June 2018, pages 1-19.
Dr Adam’s report outlined the extensive list of material to which he had regard to in writing his report, together with the information provided to him by Mr Kumar during his examination and his observations.
Dr Adam outlined the history provided to him by Mr Kumar and under the heading “Functional abilities” provided:[87]
Mr Kumar told me that he lived in a unit with his wife and son, aged 10 years.
Mr Kumar told me that he had trouble sitting, and stayed in bed most of the time, he said he had a burning pain during the consultation. He said that standing is still painful, and there is not a minute when he is without pain. When walking, his back becomes painful within a couple of minutes. He said he is not able to kneel or squat at all, and that bending is difficult. He said that stairs are difficult, and he cannot climb stairs without the help of railings. He has to use his left hand on the rail if stepping down from the bus.
Mr Kumar is able to shower without assistance, although he finds it hard. He said bending is a problem when dressing, and he chooses not to wear socks. Sitting on the toilet causes pain in his hips and coccyx. He is able to clean his teeth and wash his hair, but has some difficulty in chopping. He denies any difficulties eating. He finds the Endep helps him to sleep. At home, his wife performs the meal preparation, washing up, grocery shopping and laundry. He said he cannot do much at all at home, and specifically mentioned that vacuuming causes back pain and knee pain. As they live in a unit, Mr Kumar is not required to undertake any garden maintenance.
Mr Kumar said the pain is always there in his back and knees when driving. He does not drive unless there is no alternative. He said he can only drive for five or ten minutes before he has to stop. He said it is worse on a plane, because he cannot move to get relief, and he avoids flying where possible.
Mr Kumar said he spends his days at home, watching TV. He said he was previously a marathon runner and cyclist, but was no longer able to participate in those activities
[87] Exhibit 5, Secretary's Statement of Issues, Facts and Contentions, Attachment A, Report of Dr Keith Adam dated 28 June 2018, page 5.
Dr Adam provided in relation to his examination of Mr Kumar that:[88]
Mr Kumar was able to remain seated for the duration of my clinical interview, between 09:50 and 11:15. I observed Mr Kumar whilst he was dressing. He was able to use both hands, and in particular the right thumb to do up buttons without any apparent difficulty, and without any outward signs of pain or discomfort. He sat to put his trousers on, and while sitting his mobile phone dropped out of his pocket. He was able to bend over from the chair to pick it up without any apparent restriction, He was not wearing socks, and was able to slip his shoes on.
[88] Exhibit 5, Secretary's Statement of Issues, Facts and Contentions, Attachment A, Report of Dr Keith Adam dated 28 June 2018, page 6.
In relation to the surveillance evidence provided to him, Dr Adam provided the following summary:[89]
In the video surveillance performed on 13 March 2018, Mr Kumar was seen walking around car carrying what appeared to me to be a briefcase, and swapped it from hand to hand without any apparent difficulty before entering a blue vehicle. He was later observed walking freely in a Westfield shopping centre, riding an escalator, and doing some grocery shopping. He was seen to stoop to pick up grocery items, and then carry the bags of groceries. At no time was the observed to stop to apparently rest his back.
[89] Exhibit 5, Secretary's Statement of Issues, Facts and Contentions, Attachment A, Report of Dr Keith Adam dated 28 June 2018, page 8.
In his report, Dr Adam provided the following opinion in relation to the conditions for which Mr Kumar was seeking be assessed as part of his claim for DSP:
Upper limb condition[90]
[90] Exhibit 5, Secretary's Statement of Issues, Facts and Contentions, Attachment A, Report of Dr Keith Adam dated 28 June 2018, pages 8-10.
·Confirmed the diagnosis of Mr Kumar’s upper limb condition as:
Mr Kumar sustained a comminuted fracture of the proximal phalanx of his right thumb, involving the metacarpophalangeal joint surface as a result of the motor vehicle accident which occurred in 2001. As a result of this injury, I believe he has developed some post- traumatic osteoarthritis in the joint, as evidenced by the mild restriction in the range of flexion of the joint.
·Opined that, Mr Kumar’s upper limb condition was fully diagnosed, fully treated and fully stabilised at each of the Relevant Periods and must be assessed as attracting 0 points under Table 2 of the Impairment Tables. In relation to functional impairment relating to Mr Kumar’s upper limb condition, Dr Adam provided:
·Mr Kumar describes a variety of symptoms detailed in the body of my report, above. He said he cannot use his hand for writing or typing, and his thumb has become shorter. He also describes pain radiating from his wrist or lap to shoulder. I consider that these symptoms are not consistent with the nature of his initial injury, and are not supported by objective clinical findings.
·In this case, there is inconsistency in the clinical findings and no objective evidence to support the level of disability claimed by Mr Kumar. There are objective observations of him picking up heavier objects, doing up buttons, and reaching out to pick up objects, so that he is unable to satisfy the criteria for 5 points. A previous tribunal had accepted Mr Kumar's advice that he had some difficulty with buttons when awarding him five points, but this is contradicted by my direct observation.
·In addition, the guidelines to Table 2 require that assessment of upper limb function must be based on the functional ability of both hands. Mr Kumar could perform all of the functional requirements for five points with his left hand.
Lower limb condition[91]
[91] Exhibit 5, Secretary's Statement of Issues, Facts and Contentions, Attachment A, Report of Dr Keith Adam dated 28 June 2018, pages 11-13.
·Confirmed the diagnosis of Mr Kumar’s lower limb condition as:
MRI examinations confirm the presence of degenerative osteoarthritis in both knees.
·Opined that, Mr Kumar’s upper lower condition was fully diagnosed, fully treated and fully stabilised at each of the Relevant Periods and must be assessed as attracting 0 points under Table 3 of the Impairment Tables. In relation to functional impairment relating to Mr Kumar’s upper limb condition, Dr Adam provided:
·Mr Kumar reports pain in both knees, accompanied by swelling, and a sensation that his knees will give way. He said he cannot even take one step without pain, and when walking he said he has to stop every 1 to 2 minutes to get some relief. Mr Kumar's claimed level of disability is greater than that demonstrated on surveillance videos, and is greater than anticipated from the demonstrated clinical findings. I have no doubt that Mr Kumar would have suffered some aching in his knees from time to time during the qualification periods, but not to the extent described by Mr Kumar.
·Considering the descriptors under 5 points, Mr Kumar must satisfy at least one of the criteria listed under (1), and at least one of those listed under (2). I would expect Mr Kumar to have some difficulty in climbing stairs. However, he 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 therefore does not satisfy the criteria for 5 points, and must therefore be assessed as 0 points.
·I disagree with the assessment, of the HPAU, as there is objective evidence demonstrating that Mr Kumar does not have a moderate functional deficit of his lower limbs. As detailed above, I do not consider that he satisfies the descriptors for 5 points, and therefore cannot be assessed as having a higher functional impact.
Spinal condition[92]
[92] Exhibit 5, Secretary's Statement of Issues, Facts and Contentions, Attachment A, Report of Dr Keith Adam dated 28 June 2018, pages 13-15.
·Confirmed the diagnosis of Mr Kumar’s spinal condition as:
X-rays confirm that Mr Kumar has some degenerative osteoarthritis in his lumbar spine. However, there is often a poor correlation between radiological findings and disability, and these findings do not support the level of disability claimed by Mr Kumar.
Some assessments refer to Mr Kumar as having spinal canal stenosis. Dr Rohan Sabharwal described mild central canal narrowing in his report of the MRI examination dated 30.06.2011. There is evidence of some mild narrowing of the spinal canal, but not sufficient to justify a diagnosis of spinal canal stenosis.
·Opined that, Mr Kumar’s spinal condition was fully diagnosed, fully treated and fully stabilised at each of the Relevant Periods and must be assessed as attracting 0 points under Table 4 of the Impairment Tables. In relation to functional impairment relating to Mr Kumar’s upper limb condition, Dr Adam provided:
·Kumar told me that he had pain between L3 and S1, and particularly at L5, where he has a bulging disc. He said the pain radiates down through both legs, mostly on the anterior surface. He said he sometimes feel so weak in his feet he cannot stand on his feet. He describes numbness and tingling on the anterior aspect of both legs. He said the pain is aggravated by everything he does, and when it is severe he is bedridden.
·These symptoms are not consistent with the objective clinical findings. The distribution of the numbness described does not correspond with any anatomical distribution, and there were significant inconsistencies in the clinical examination. In formal testing, Mr Kumar demonstrated an extremely limited range of movement, but subsequently displayed a much greater range of movement when he stooped to pick up his phone when he dropped it. The surveillance video depicts Mr Kumar performing a range of activities which he told me he was not able to perform.
·Given these inconsistencies, it is difficult to determine the symptoms and disability actually present during each of the qualification periods, except to say that they would be substantially less than that described by Mr Kumar.
·Mr Kumar has no injury to his cervical spine which would prevent him from performing activities over head height. He was observed during surveillance to bend to knee level and straighten up again without difficulty, and he demonstrated during the course of my clinical examination that he was able to turn his trunk and bend sideways without difficulty. He therefore does not satisfy any of the criteria listed under 5 points, and must therefore be assessed as having 0 points.
·I disagree with the functional impairment rating by the HPAU, as I consider that Mr Kumar's functional impairment should be rated at 0 points, for the reasons detailed above.
In his report, Dr Adam provided that his opinion was that Mr Kumar’s impairments of themselves would not be sufficient to prevent him from undertaking any work for at least 15 hours per week within the 2 years from the three dates of claim in question. Dr Adam said “Mr Kumar might be expected to have some difficulty in employment where he was required to undertake sustained walking for the majority of the day, particularly if that involved sloping or uneven ground, or steps. He could perform any role of a more sedentary nature. I note that during the time since his initial injury, he has been able to complete history studies and I believe these would equip him for preforming such roles.”[93]
[93] Exhibit 5, Secretary's Statement of Issues, Facts and Contentions, Attachment A, Report of Dr Keith Adam dated 28 June 2018, pages 15-16.
In his report, Dr Adam provided that his opinion was that Mr Kumar’s impairments of themselves, would not be sufficient to prevent him from undertaking a training activity during the Relevant Periods. Dr Adam further provided that his opinion was that if Mr Kumar participated in a training activity he would expect that he would be able to work independently of any POS within 2 years of the Relevant Periods in question.[94]
[94] Exhibit 5, Secretary's Statement of Issues, Facts and Contentions, Attachment A, Report of Dr Keith Adam dated 28 June 2018, pages 16-17.
Dr Adam provided the following comments under the heading “Other factors”:[95]
[95] Exhibit 5, Secretary's Statement of Issues, Facts and Contentions, Attachment A, Report of Dr Keith Adam dated 28 June 2018, pages 17-18.
4.34. Is there any evidence of non-organic factors and voluntary or involuntary exaggeration of the symptoms or signs? Please explain.
There is considerable evidence of non-organic factors and exaggeration of symptoms, either voluntary or involuntary, demonstrated on review of supporting documentation, on my clinical examination, and in comparing the level of claimed disability with the video surveillance evidence.
The JCA performed on 23 April 2018 mentions a diagnosis of spinal canal stenosis. However, this is not supported or justified by any of the x-ray reports. In his report of an MRI scan of the lumbar spine dated 30 June 2011, Dr Rohan Sabharwal reports "mild central canal narrowing of the L4/5 level with mild bilateral lateral recess narrowing at the L4/5 and L5/S1 levels". This mild narrowing falls well short of spinal canal stenosis likely to cause any symptoms.
The range of movement of the lumbar spine demonstrated by Mr Kumar during formal clinical examination was quite restricted, and inconsistent with the range of movement exhibited when he bent to pick up his mobile phone when he dropped it?
Mr Kumar's claimed inability to do up buttons was not consistent with my observation of him doing up his buttons unaided following my examination.
The restrictions in his ability to walk described by Mr Kumar are not consistent with the ease and duration of walking he demonstrated whilst under surveillance.
There is significant inconsistency, and inter-test variability in the grip strength recorded in early examinations, compared to that obtained when I examined Mr Kumar. There is no satisfactory clinical explanation for Mr Kumar's grip strength in his left, unaffected hand being approximately 30% of the normal range.
Overall, the claimed level of disability was inconsistent with objective clinical findings. Neither Mr Kumar's back nor knee conditions would be sufficient to explain why he is confined to bed from time to time.
4.35 Are there any other comments you wish to make?
Mr Kumar's assessed disability appears to rely heavily upon the reports of Dr Henry Stenning, general practitioner dated 3 May 2001. In those reports, he assessed Mr Kumar to have a permanent impairment of his back of 18%, and a permanent loss of use of the right hand also of 18%. Dr Stenning does not provide any clinical justification for these assessments, and nor does he explain the methodology used. I consider these estimates of impairment to be grossly excessive.
Dr Stenning records in his examination that Mr Kumar had "difficulty with flexion and extension movement [of the right thumb]. He could not do these movements fully". Using the methodology contained in the American Medical Association Guides to the Evaluation of Permanent Impairment, Fifth Edition, for example, a restriction of 50% of flexion and extension of the metacarpophalangeal joint of the thumb would result in an impairment rating of 3% (figure 16-12 and table 16-1), equivalent to 1% impairment of the hand. An 18% impairment of the hand would require amputation of the thumb at approximately the level of the interphalangeal joint (Figure 16-4, and Table 16-1).
Similarly, Dr Stenning records "your client could fulfil most of the movements today flexion extension, but he was having a good day. Rotation to the left and right was also good today. Your client has no radiating pain". When assessed in accordance with AMA 5, this would not satisfy the criteria for DRE Lumbar Category II, so Mr Kumar's impairment would be assessed to be DRE Lumbar Category I, equivalent to 0% of the whole person. To be classified as satisfying the criteria for DRE Lumbar Category III, equivalent to 13% impairment of the whole person, Mr Kumar would need to demonstrate significant signs of radiculopathy, a history of a herniated disc associated with radiculopathy, or a compression fracture of a vertebral body of 25-50% height. There is no evidence to support this level of claimed disability.
Written submissions from Mr Kumar
A number of written statements made by Mr Kumar have been provided in the material before the Tribunal, of which they are largely consistent in setting out Mr Kumar’s position.
For the purposes of the present applications Mr Kumar set out what issues he considered to be disputed and his associated contentions in his written submission titled ‘Claimant’s Submission’ dated 23 July 2018.[96]
[96] Exhibit 6, Claimant’s Submission, provided by Mr Kumar dated 23 July 2018, pages 1-10.
Mr Kumar outlined that he considered that there were three issues in dispute, being:[97]
(a)What is the deemed date of “the claim”;
(b)Whether the claimant was eligible for the pension on that date; and
(c)Whether a permanent impairment awarded under workers compensation remains permanent, where permanent means “forever” regardless [of whether] a disability support pension is claimed or not?
[97] Exhibit 6, Claimant’s Submission, provided by Mr Kumar dated 23 July 2018, pages 3-4, paragraph 3.
Mr Kumar made the following contentions:[98]
[98] Exhibit 6, Claimant’s Submission, provided by Mr Kumar dated 23 July 2018, pages 5-10, paragraphs 5‑17.
(a)He was in receipt of social security income support payments on and after 15 August 2011 and claiming DSP from at least 15 October 2012 or earlier and the backdating provisions in sections 12, 13 and 15 and clause 4 of Schedule 2 of the Administration Act should be applied in relation to determining the date of claim.
(b)Any dispute about impairments was baseless in the light of the findings of the “Honourable Courts and Tribunals”.
(c)He suffered from permanent impairments and was awarded compensation for permanent disabilities where the impairments last “forever”.
(d)In light of the reviewable decisions “there was not much to say, however,” he submitted:
(i)He had completed a POS under the NSW Workers’ Compensation Scheme;
(ii)The Secretary conceded and confirmed that the POS criteria had been satisfied;
(iii)10 points for lower limb function;
(iv)10 points for spinal function;
(v)Permanent meant forever – impairments under workers’ compensation jurisprudence remain permanent, regardless of whether DSP is claimed or not. Without conflating the two social welfare legislations – Social Security and Workers’ Compensation – and for the reason that both legislations are dealing with the same impairments in the present case – reduction of the impairment ratings under social security legislation meant reduction under workers’ compensation legislation; and
(vi)20 points for upper limb function – he suffered from “permanent loss” of right hand.
(e)The report of Dr Adam was irrelevant and highly objectionable, biased, meant to serve his client and carried no weight. The report did not take into consideration material evidence and was solely based on a surveillance report; and
(f)The surveillance evidence was outdated and courts in NSW at least were reluctant to use it.
Mr Kumar is seeking that he be granted the DSP from 15 October 2012 or 1 May 2013 or, if the Secretary disputed the POS requirements, the claim be backdated to 15 August 2011.[99]
[99] Exhibit 6, Claimant’s Submission, provided by Mr Kumar dated 23 July 2018, paragraph 19, page 10.
Written submissions from the Secretary
The Secretary provided their written contentions in a Statement of Issues, Facts and Contentions dated 13 July 2018.[100] The Secretary continued to rely on their written contentions at Hearing and provided additional contentions in relation to the new information raised by Mr Kumar at Hearing.
[100] Exhibit 5, Secretary’s Statement of Issues, Facts and Contentions.
In summary, the Secretary’s written contentions provided:
Upper limb condition[101]
[101] Exhibit 5, Secretary’s Statement of Issues, Facts and Contentions, pages 9-10, paragraphs 5.19-5.23.
·Mr Kumar’s upper limb condition was fully diagnosed, fully treated and fully stabilised during the Relevant Periods.
·The condition could be rated on Table 2 of the Impairment Tables and should be assigned 0 points during the Relevant Periods on the basis that Mr Kumar could pick up, handle, manipulate and use most objects encountered on a daily basis without difficulty, satisfying the descriptor (1) of the 0 point rating.
·In order to be assigned a 5 point rating under Table 2, Mr Kumar must establish that he satisfied most of the descriptors during the qualification periods; that is, at least three out of four. In this instance, Dr Adam noted that there were objective observations of Mr Kumar 'picking up heavier objects, doing up buttons and reaching out to pick up objects', indicating that at least three descriptors, being (1)(a), (c) and (d), were not met by Mr Kumar during the qualification periods. Dr Adam observed Mr Kumar to use his right thumb to do up buttons without any apparent difficulty during his assessment, and referred to surveillance footage of him handling/carrying a briefcase and bags of groceries. Mr Kumar also conceded in his discussion with Dr Adam of having 'no difficulty in handling coins when he needed to', indicating that descriptor (1)(b) was also not met.
·Dr Adam considered that there would be little variation in Mr Kumar's functional capabilities between the qualification periods, and noted that the symptoms reported by Mr Kumar were inconsistent with the nature of the injury and the objective clinical findings. The Introduction to Table 2 of the Impairment Tables instructs that self-report of symptoms alone is insufficient and there must be corroborating evidence of the person's impairment.
Lower limb condition[102]
[102] Exhibit 5, Secretary’s Statement of Issues, Facts and Contentions, pages 10-11, paragraphs 5.24-5.28.
·Mr Kumar’s lower limb condition was fully diagnosed, fully treated and fully stabilised during the Relevant Periods.
·The condition could be rated on Table 3 of the Impairment Tables and should be assigned 0 points during the Relevant Periods on the basis that Mr Kumar could perform all of the activities described in descriptors (1)(a) to (e) of the 0 point rating.
·In order to be assigned a 5 point rating under Table 3, Mr Kumar must establish that he satisfied at least one of the descriptors listed in both paragraphs (1) and (2) during the qualification periods. Most significantly, paragraph (2) requires Mr Kumar to demonstrate that he was either: (a) unable to stand for more than 10 minutes, or (b) required the use of a lower limb prosthesis or walking stick to mobilise effectively during the qualification periods. In his report, Dr Adam confirmed that Mr Kumar had been observed to stand for more than 10 minutes, and that he did not require the use of an assistive device. Such evidence is consistent with:
(a) The medico-legal report of Dr Assem, consultant in rehabilitation and musculoskeletal medicine, dated 2 September 2011 that indicated Mr Kumar could '[stand] in a static position for up to 30-40 minutes...'[103]; and
[103] Exhibit 1, T Documents, Volume 1, T26, page 107, Report of Dr Mohammed Assem.
(b) The Workers Compensation Commission Medical Assessment Certificate dated 5 March 2014 that indicated Mr Kumar walked 'without a limp and uses no appliances'.[104]
[104] Exhibit 1, T Documents, Volume 1, T53, page 180, Medical Assessment Certificate: Dr Ian Louis Meakin.
·The Secretary contends that there is no contemporaneous medical evidence to indicate either descriptors (2)(a) or (b) were met by Mr Kumar during the qualifications periods, nor is there any evidence to indicate he satisfied any of the descriptors in (1)(a) to (b) of the 5 point rating. Dr Adam reported that Mr Kumar had demonstrated an ability to walk around a shopping mall and supermarket without a rest, and that he did not have difficulty walking to local facilities. In relation to descriptor in (1)(c), Dr Adam stated that he would expect Mr Kumar to have some difficulty in climbing stairs. However, this comment must also be considered in the context of first, the absence of any reliable contemporaneous evidence of such difficulty and second, the observation by Dr Adam that Mr Kumar's claimed level of disability was greater than anticipated from the demonstrated clinical findings and surveillance footage. In any event, even assuming descriptor 1(c) is satisfied, the Secretary contends that little ultimately turns on that point. In circumstances where neither of the two alternative descriptors in (2) is [sic] satisfied, a 5 point rating cannot be assigned under Table 3.
Spine condition[105]
[105] Exhibit 5, Secretary’s Statement of Issues, Facts and Contentions, pages 11-12, paragraphs 5.29-5.33.
·Mr Kumar’s spine condition was fully diagnosed, fully treated and fully stabilised during the Relevant Periods.
·The condition could be rated on Table 4 of the Impairment Tables and should be assigned 0 points during the Relevant Periods on the basis that Mr Kumar could bend down to pick up a light object off the floor, turn his trunk from side to side and turn his head to look to the sides or upwards, satisfying the descriptors (1)(a) to (c) of the 0 point rating.
·Dr Adam observed Mr Kumar bend over from a chair to retrieve his mobile phone from the floor without any apparent restriction, and referred to the surveillance footage of him bending to knee level to straighten up again without difficulty. Dr Adam also confirmed that Mr Kumar was capable of turning his trunk and bending sideways without difficulty during his assessment, and that he had no injury to his cervical spine which would prevent him from performing activities over head height. According to Dr Adam, Mr Kumar 'therefore does not satisfy any of the criteria for 5 points'.
·The Secretary contends that Mr Kumar's self-reporting cannot be relied upon in circumstances where the objective clinical findings and surveillance footage are in direct contradiction, and where there are significant inconsistencies between the symptoms reported by Mr Kumar to Dr Adam and the objective clinical findings made by Dr Adam upon examining Mr Kumar.
Mental health condition[106]
[106] Exhibit 5, Secretary’s Statement of Issues, Facts and Contentions, page 12, paragraphs 5.34-5.36.
·Mr Kumar’s depression and anxiety was not fully diagnosed, fully treated and fully stabilised during the Relevant Periods.
·In this instance, there is no evidence of a diagnosis having been made by either a psychiatrist prior to or during the qualification periods, nor is there any evidence of any diagnostic input by a clinical psychologist. As the diagnostic requirements in Table 5 are not met, the condition cannot be considered fully diagnosed. There is also no evidence of Mr Kumar receiving optimal treatment for the condition, such as a recent and sustained period of psychological counselling in conjunction with pharmacological intervention. On this basis, the condition cannot be considered fully treated or stabilised, either.
Continuing Inability to Work[107]
[107] Exhibit 5, Secretary’s Statement of Issues, Facts and Contentions, pages 12-16, paragraphs 5.38-5.56.
·Mr Kumar did not have a continuing inability to work during the Relevant Periods.
·For completeness, the Secretary notes that the issue as to whether Mr Kumar had actively participated in a program of support relevant to an earlier claim for DSP lodged on 1 May 2013, has previously been the subject of consideration by the Tribunal and on appeal by the Federal Circuit Court and Federal Court (see Kumar v Secretary, Department of Social Services [2016] FCCA 640 (T88/418) and Kumar v Secretary, Department of Social Services [2017] FCA 158 (T100/539)). In relation to that prior claim, the Tribunal was not satisfied that a return to work plan implemented for the purposes of Mr Kumar's workers' compensation matter was a program of support. On appeal, the Federal Circuit Court found that such a finding was plainly open, indeed inevitable, on the material before the Tribunal. Furthermore, the Court found that even if the return to work plan constituted a program of support, it was undertaken and completed by Mr Kumar well before the 36 month period immediately preceding the relevant claim and could not be a program of support for relevant purposes. The Federal Circuit Court's decision was upheld on appeal to the Federal Court.
·Since then, in terms of the relevant POS periods currently before the Tribunal, the calculations undertaken by the Department of Education, Employment and Workplace Relations indicate that Mr Kumar did not actively participate in a program of support for at least 18 months in any of the relevant POS periods.[108]The calculations are as follows:
[108] Exhibit 5, Secretary’s Statement of Issues, Facts and Contentions, Attachment B, Program of Support Details.
Claim
Relevant period
Active participation in a program of support
14 September 2015
13 September 2012 - 13 September 2015
259 days or 8.52 months
9 November 2015
8 November 2012 - 8 November 2015
284 days or 9.34 months
10 May 2016
9 May 2013 – 9 May 2016
346 days or 11.4 months
·Mr Kumar has not satisfied any of the exceptions set out in sections 7(3) to (5) of the POS Determination as there is no evidence that within the Relevant Periods that Mr Kumar:
·Completed a POS that ran for less than 18 months, with the entire program being completed within the POS Period.
·Was participating in a POS but the program was terminated before he claimed DSP because he was prevented, due solely to his impairments, to improve his capacity to prepare for, find or maintain work through continued participation.
·Was, at the end of the Relevant Period, participating in a POS but was prevented due solely to his impairments, to improve his capacity to prepare for, find or maintain work through continued participation in the program.
·Mr Kumar’s condition would not prevent him from undertaking work or a training activity during the Relevant Periods for at least 15 hours a week within 2 years from the date of his claims, relying on:
·Dr Adam’s report, which noted that Mr Kumar could perform “any role of a more sedentary nature” and he had completed history studies since the onset of his initial injury.
·Dr Gilhotra’s oral evidence to the HPAU that Mr Kumar had the capacity for light work of more than 15 hours per week with retraining and support, noting that she had been “pushing/encouraging customer to attend work …”[109]
·The JCA report dated 15 January 2016, that assessed Mr Kumar as having a future work capacity within 2 years with intervention of 15‑22 hours per week.[110]
[109] Exhibit 1, T Documents, Volume 2, T89, page 448, Professional Advisory Unit Opinion.
[110] Exhibit 1, T Documents, Volume 2, T84, page 351, Job Capacity Assessment Report.
Impairment Tables
The Impairment Tables set out in the Determination outline the requirements to assess a person’s functional impairment resulting from a condition which is considered to be permanent for the purposes of the Determination. The relevant descriptors for the Impairment Tables that have been raised as being applicable in this matter are set out below.
Table 1 of the Impairment Tables deals with functions requiring physical exertion and stamina and is used where the person has a permanent condition resulting in functional impairment when performing activities requiring physical exertion or stamina. The descriptors in relation to a severe functional impact are as follows:[111]
[111] Impairment Table 1 – Functions requiring Physical Exertion and Stamina, Part 3 of the Determination.
20
There is a severe functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) usually experiences symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing light physical activities and, due to these symptoms, the person is unable to:
(i) walk (or mobilise in a wheelchair) around a shopping centre or supermarket without assistance; or
(ii) walk (or mobilise in a wheelchair) from the carpark into a shopping centre or supermarket without assistance; or
(iii) use public transport without assistance; or
(iv) perform light day to day household activities (e.g. folding and putting away laundry or light gardening); and
(b) has or is likely to have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours.
Table 2 of the Impairment Tables deals with upper limb function and is used where the person has a permanent condition resulting in functional impairment when performing activities requiring the use of hands or arms. The descriptors in relation to no, mild, moderate or severe functional impact are as follows:[112]
[112] Impairment Table 2 – Upper Limb Function, Part 3 of the Determination.
Points
Descriptors
0
There is no functional impact on activities using hands or arms.
(1) The person can pick up, handle, manipulate and use most objects encountered on a daily basis without difficulty.
5
There is a mild functional impact on activities using hands or arms.
(1) The person can manage most daily activities requiring the use of the hands and arms, but has some difficulty with most of the following:
(a) picking up heavier objects (e.g. a 2 litre carton of liquid or carrying a full shopping bag);
(b) handling very small objects (e.g. coins);
(c) doing up buttons;
(d) reaching up or out to pick up objects.
10
There is a moderate functional impact on activities using hands or arms.
(1) The person has difficulty with most of the following:
(a) picking up a 1 litre carton full of liquid;
(b) picking up a light but bulky object requiring the use of 2 hands together (e.g. a cardboard box);
(c) holding and using a pen or pencil;
(d) doing up buttons or tying shoelaces;
(e) using a standard computer keyboard;
(f) unscrewing a lid on a soft-drink bottle.
20
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.
Table 3 of the Impairment Tables deals with lower limb function and is used where the person has a permanent condition resulting in functional impairment when performing activities requiring the use of legs or feet. The descriptors in relation to no, mild, moderate or severe functional impact are as follows:[113]
[113] Impairment Table 3 – Lower Limb Function, Part 3 of the Determination.
Points
Descriptors
0
There is no functional impact on activities requiring use of the lower limbs.
(1) The person can:
(a) walk without difficulty on a variety of different terrains and at varying speeds; and
(b) walk without difficulty around the home and community; and
(c) kneel or squat and rise back to a standing position without difficulty; and
(d) stand unaided for at least 10 minutes; and
(e) use stairs without difficulty.
5
There is a mild functional impact on activities using lower limbs.
(1) At least one of the following applies:
(a) the person has some difficulty walking to local facilities (e.g. shops or bus-stop); or
(b) the person has some difficulty walking around a shopping mall or supermarket without a rest; or
(c) the person has some difficulty climbing stairs; and
(2) At least one of the following applies:
(a) the person is unable to stand for more than 10 minutes;
(b) the person can mobilise effectively but needs to use a lower limb prosthesis or a walking stick.
10
There is a moderate functional impact on activities using lower limbs.
(1) At least one of the following applies:
(a) the person is unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities; or
(b) the person is unable to use stairs or steps without assistance; or
(c) the person is unable to stand for more than 5 minutes; and
(2) The person is able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket.
(3) This impairment rating level includes a person who can:
(a) move around independently using a wheelchair and can independently transfer to and from a wheelchair (e.g. can use a wheelchair accessible toilet independently); or
(b) move around independently using walking aids (e.g. quad stick, crutches or walking frame).
Note: The person may require additional time and effort to move around a workplace, may need to use disabled access entries, lifts and toilets, and may not be able to access some areas of a workplace or training facility.
20
There is a severe functional impact on activities using lower limbs.
(1) The person:
(a) is unable to do any of the following:
(i) walk around a shopping centre or supermarket without assistance;
(ii) walk from the carpark into a shopping centre or supermarket without assistance;
(iii) stand up from a sitting position without assistance; and
(b) requires assistance to use public transport.
(2) This impairment rating level includes a person who requires assistance to:
(a) move around in, or transfer to and from a wheelchair (e.g. the person needs personal care assistance to use a toilet); or
(b) move around using walking aids (e.g. a quad stick, crutches or walking frame), that is, the person needs assistance from another person to walk on some surfaces and could not move independently around a workplace or training facility, even when using a walking aid.
Table 4 of the Impairment Tables deals with spinal function and is used where the person has a permanent condition resulting in functional impairment when performing activities involving spinal function, that is, bending or turning the back, trunk or neck. The descriptors in relation to no, mild, moderate or severe functional impact are as follows:[114]
[114] Impairment Table 4 – Spinal Function, Part 3 of the Determination.
Points
Descriptors
0
There is no functional impact on activities involving spinal function.
(1) The person can:
(a) bend down to pick a light object off the floor (e.g. a piece of paper); and
(b) turn their trunk from side to side; and
(c) turn their head to look to the sides or upwards.
5
There is a mild functional impact on activities involving spinal function.
(1) The person has some difficulty in:
(a) activities over head height (e.g. activities requiring the person to look upwards); or
(b) bending to knee level and straightening up again without difficulty; or
(c) turning their trunk or moving their head (e.g. to look to the sides or upwards).
10
There is a moderate functional impact on activities involving spinal function.
(1) The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:
(a) the person is unable to sustain overhead activities (e.g. accessing items over head height); or
(b) the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or
(c) the person is unable to bend forward to pick up a light object placed at knee height; or
(d) the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).
20
There is a severe functional impact on activities involving spinal function.
(1) The person is unable to:
(a) perform any overhead activities; or
(b) turn their head, or bend their neck, without moving their trunk; or
(c) bend forward to pick up a light object from a desk or table; or
(d) remain seated for at least 10 minutes.
Table 5 of the Impairment Tables deals with mental health function and is used where the person has a permanent condition resulting in functional impairment due to a mental health condition (including recurring episodes of mental health impairment). Table 5 requires that diagnosis of the condition must be made by 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).[115]
[115] Impairment Table 5 – Mental Health Function, Part 3 of the Determination.
The introductions to each of Tables 1, 2, 3, 4, 5 of the Impairment Tables all provide that self-report of symptoms alone is insufficient and require that there must be corroborating evidence of the person’s impairment.
EVIDENCE AT HEARING
Opening submissions and evidence of Mr Kumar
At Hearing, in relation to his mental health condition Mr Kumar told the Tribunal that his position was that the role of the Tribunal was to consider whether he satisfied section 94(1)(b) of the Act, which was about whether he had 20 points on the Impairment Tables or not. Mr Kumar contended that if this was satisfied it was irrelevant whether he had 20, 30 or 40 points or not. So, unless it was found that the reviewable decision was incorrect it would be completely irrelevant to go through what points he had for the condition.[116]
[116] Transcript, pages 12-13.
Mr Kumar told the Tribunal that, in his view, the previous decisions of the Tribunal, Federal Circuit Court and Federal Court did not turn on an issue of whether he met the POS requirements.[117]
[117] Transcript, pages 23-24.
Mr Kumar submitted that, other than for the psychological issue, he was claiming 20 points under Tables 1, 2, 3 and 4 of the Impairment Tables in relation to severe hypoxemia and sleep apnoea, his upper limb, lower limb and spinal conditions.[118]
[118] Transcript, page 27.
When asked by the Tribunal how his conditions were presently, had they gotten worse or had they been stable and the same or had they gotten better since 14 September 2015 (being the date of the first claim for DSP under consideration in this matter), Mr Kumar said:[119]
It’s never been the same. Time to time it was worse, time to time sometimes I get good days, sometimes I get bad days. So last time, during part of the hearing I was asked to come here, I was not very well, so therefore I applied for an extension. However, sometimes I’m better, sometimes I’m not. So it depends completely on day-to-day basis. Like, which day I’m good, which day I’m not, depends on how much of my nerves are being compressed or how much pain I’m having. If I walk little bit extra, then I have more pain. Or less. Depends upon my daily exercise, daily routine. Sometimes there is no reason but it happens. It happens.
[119] Transcript, page 28.
Mr Kumar agreed with the Tribunal’s summary of his answer being that: his conditions were not far worse than they had been, nor were they far better, they were never the same every day, they fluctuated depending on what he had been doing or how his body was feeling.[120]
[120] Transcript, page 28.
Mr Kumar submitted that Dr Adam’s report was not before the SSCSD and, as such, the reviewable decision maker did not err in making his findings merely because a future hypothetical medical report was not ready before the decision was made. It had been previously accepted that he had 20 points, and he thought that for the Secretary to now resile from that situation or position was a little bit hard for them because it had been decided by many courts.[121]
[121] Transcript, page 18.
Mr Kumar submitted that the report of Dr Adam was irrelevant as it was written three years after his claim for DSP and 6 months after the reviewable decision.[122]
[122] Transcript, pages 18-19.
Mr Kumar further submitted that the report of Dr Adam was irrelevant. He quoted the following passage from Harris and Secretary, Department of Employment and Workplace Relations [2007] FCA 404, which, in his view, is authority that if there is any change, at a future date in the Claimant’s condition, that is completely irrelevant:[123]
The case concerns the application of s.94 of Social Security Act 1991 Commonwealth, which deals with a condition for the grant of the disability support pension. There is little authority in the court concerning the operation of these important provisions. It is to be noted at the outset that by virtue of s.42 and schedule 2 of the Social Security Administration Act 1999 Commonwealth, the applicant's entitlement to the pension must be considered as at the date of her claim, namely (indistinct) 2004 and a period 13 weeks thereafter. Any subsequent change in her health is irrelevant to the percentage arise in this proceeding except insofar as it may cast light on the position at relevant times.[124]
[123] Transcript, pages 19-20.
[124] This quotation reflects the submission of the decision as provided by Mr Kumar at Hearing rather than the official record of the decision.
Mr Kumar further submitted that he did not agree with certain points made by Dr Adam in his report.[125]
[125] Transcript, page 20.
Mr Kumar submitted that the surveillance report was not admissible as it was produced almost three years after the claim made in 2015.[126]
[126] Transcript, page 20.
Mr Kumar submitted that the decision of the Workers’ Compensation Commission and its findings were linked to his claims for DSP through the POS requirements set out in the Act. He told the Tribunal that:[127]
The program of support allows that if a person has completed a program of support through Workers Compensation Authority of any state, it will be valid. So there is a link, it is not (indistinct) what the Workers Compensation Commission has done is completely separate to the current issue, it is the same issue and both are linked to each other.
So, any program of support which has been completed under one authority is considered that the authority is valid.
[127] Transcript, page 23.
Mr Kumar was under cross-examination by the Secretary for over 3 hours at Hearing, spanning some 60 pages of transcript.[128]
[128] Transcript, pages 28-91
The Tribunal interjected a number of times to ensure that Mr Kumar understood the DSP requirements and what it was that the Tribunal had to consider.
It is not proposed in this decision to reflect word for word the evidence provided by Mr Kumar during cross-examination, rather the following is a summary of relevant responses to questions asked by the Secretary on cross-examination or by the Tribunal in the course of Mr Kumar giving his evidence. Mr Kumar:
·Confirmed that he completed the three application forms relating to the claims for DSP to which the Hearing related. He said that he completed the forms over a number of days at home and then took them into a Centrelink office.[129]
[129] Transcript, pages 29-31.
·Confirmed that he migrated to Australia in 1996.[130]
[130] Transcript, page 31.
·Said he first started working as a taxi driver in around the year 2000. Prior to working as a taxi driver he worked as a machine operator in Sydney and as a security officer. When asked for details regarding the type of security work he had undertaken Mr Kumar said he was working for a private security company patrolling train stations, railway platforms and around the station in the area.[131]
[131] Transcript, pages 31-33.
·Confirmed that he had been working as a taxi driver for some time before January 2001 when he had a motor vehicle accident.[132]
[132] Transcript, page 33.
·Confirmed that the following summary recorded by Dr Adam in his report was a fair summary:[133]
[133] Transcript, pages 33-34.
Mr Kumar told me that he had originally sustained injuries to his right thumb, knees and lower back in a motor vehicle accident which occurred on 31st of January, 2001.
·Confirmed that by July 2001 he had returned to work as a taxi driver and worked in this role until 2011, working for various employers during this period. He said that how much he worked depended upon availability of work and his injuries.[134]
[134] Transcript, page 34.
·Confirmed he recalled the period in his life between 2001 and 2011 and that during this period:[135]
[135] Transcript, pages 34-41.
·He collected fares from passengers which would sometimes be made by card or in cash. He explained how he used the eftpos machine and indicated that he used his index finger on his right hand to push the buttons on the machine. He explained that when a passenger paid in cash he would put the notes in his pocket and the coins in a leather pouch or near the glovebox or in a space near the gears. He said he did not need a calculator as he was good at adding.
·He wore a uniform which included long or short sleeve shirts that were button up shirts. He confirmed he could do up the buttons and tuck the shirt into his trousers.
·His shifts were usually from 3 to 3, however, he did not recall ever starting at 3 am in the morning. He said the shifts changed depending on availability of work, the vehicle and many other issues.
·He got himself dressed for work during this time.
·He got the train to work. He said he caught the train to where the taxi used to stand, and pick it up from there to start work. He said that he lived close to the train station so he walked there and then sat down on the train and that he walked to the taxi stand which was close to the train station.
·He was assigned the taxi he was to drive for the day via a roster.
·Part of his job involved opening the car door, putting his seatbelt on, inserting the car key and turning the car on, and that he would use his right hand for that. He then clarified that he would sometimes use his left hand.
·He mostly drove an automatic vehicle. The gear stick was in the middle of the car and he used his hand to select which gear to put the car in, to reverse, to put the handbrake on and to steer the car.
·He activated the car indicator using mostly his right hand unless the car had the indicator on the left-hand side, however, that was unusual.
·He activated the windscreen wiper activation with his left hand unless it was on the right-hand side of the vehicle, however, that would be unusual.
·When driving around passenger’s safety was very important to him.
·Generally, he did not do a head check when changing lanes as he would rely on his mirrors.
·Sometimes he would help passengers with getting their luggage in and out of the taxi and that would require him using his hands.
·Confirmed that he further jarred his back by lifting a suitcase while working as a taxi driver in 2011. He said that he did not know if he had reinjured his thumb during this incident. When asked further questions by both the Secretary and Tribunal in relation to whether the 2011 incident impacted upon or reinjured his thumb and knees as well as his back, Mr Kumar went to lengths to say that he had pain in all areas so they were all affected. He said he could not recall whether he told Dr Adam that he had reinjured his thumb in 2011 as he was not sure Dr Adam had asked him.[136]
[136] Transcript, pages 41-43.
·Confirmed that he recalled being examined by Dr Silva for the purposes of his 2011 workers’ compensation claim and that he was always truthful in the answers he provided to Dr Silva. When shown Dr Silva’s report dated 9 February 2012[137] and taken to page 3 which outlined ‘Present Complaints’, which refered to Mr Kumar’s back but did not mention his right thumb, Mr Kumar said that Dr Silva’s report was rejected in the Commission, he did not agree with it and objected to it in 2012 and 2013. When taken to page 4 where under the Examination heading Dr Silva recorded that Mr Kumar had no complaints in the right thumb that day, Mr Kumar said this could not be relied upon because Dr Silva probably did not ask him about his thumb on that day. Mr Kumar said he could not remember every word 7 years later. He said he did not agree that his right thumb was not reinjured in 2011.[138]
[137] Exhibit 13, Medical Report of Dr Thomas A Silva, dated 9 February 2012.
[138] Transcript, pages 44-47; Exhibit 13, Medical Report of Dr Thomas A Silva, dated 9 February 2012.
·Said that his general practitioner, Dr Aslam, knew that he reinjured his thumb in 2011. When taken to a Centrelink medical report for DSP completed by Dr Aslam in December 2011[139] and asked why the doctor did not mention any reinjury to his right thumb in 2011, Mr Kumar said the doctor had signed side by side many forms so he was not obliged to put everything in this detail because it was not meant for DSP. He confirmed that the report did not refer to him reinjuring his thumb.[140]
[139] Exhibit 1, T Documents, Volume 1, T28, pages 115-122, Disability Support Pension, Medical Report: Dr Aslam.
[140] Transcript, pages 47-49.
·Said he did not agree that the evidence reflected that he jarred his back in 2011 but did not reinjure his thumb.[141]
[141] Transcript, page 49.
·Confirmed that he saw Dr Assem, a rehabilitation specialist, in 2011 and 2012. When referred to a report authored by Dr Assem[142] which recorded that “… he lost his balance and sustained a jarring injury to his lower back…” but did not reference any reinjuring of his right thumb, he agreed that was correct. He said he had told the doctor everything, however, the primary reason that time was the spinal injury. He had been told each injury had to be dealt with one by one and the back injury was the main one. Mr Kumar said that his understanding was that the purpose of the assessments undertaken by Dr Silva and Dr Assem was to defend the insurance claim, not for the purpose of finding his injuries or treating his injuries. When asked whether it was reasonable to expect that, if he had reinjured his right thumb, he would have told the doctors that, Mr Kumar said he had told them. When asked if it was just a coincidence that both doctors did not record that he told them about reinjuring his right thumb he said that was because he had not had further x-rays taken so they would not record any changes.[143]
[142] Exhibit 1, T Documents, Volume 1, T26, pages 105-112, Report: Dr Mohammed Assem.
[143] Transcript, pages 49-52.
·Said that his workers’ compensation claims relating to his 2001 and 2011 injuries had been officiated by the Commission, however, he was seeking to have their orders restored by the Tribunal in relation to the requirements for the POS.[144]
[144] Transcript, pages 53-55.
·Confirmed that his incapacity for work continued to be important up until at least the start of 2016 before he had finalised his workers’ compensation claim.[145]
[145] Transcript, page 55.
·When taken to the HPAU report prepared in 2016,[146] where his general practitioner, Dr Gilhotra, was recorded saying that she had been pushing and encouraging him to attend work, however, he was attempting to finalise a compensation claim, he said that she was always encouraging him to look for work, but he was not part of the particular conversation referred to in the report.[147]
[146] Exhibit 1, T Documents, Volume 2, T89, pages 445-448, Health Professional Advisory Unit Opinion.
[147] Transcript, pages 56-57.
·Confirmed that in 2005 he enrolled in a teaching course and by 2006 had obtained a Bachelor of Teaching.[148]
[148] Transcript, pages 57-58.
·Confirmed that in 2011 he commenced studying Network Administration at TAFE.[149]
[149] Transcript, page 58.
·Confirmed that he had obtained a Master’s of Business Administration (MBA) in 2001.[150]
[150] Transcript, page 58.
·Confirmed that in around 2014 he had indicated he wanted to re-train as a lawyer.[151]
[151] Transcript, page 58.
·Confirmed that between 2012 and 2017 he travelled overseas a number of times because he had no livelihood, nothing to do, he could not work and was lying on the bed, so he went overseas to rely on family and friends.[152]
[152] Transcript, pages 58-59.
·Agreed that at the Hearing was the first time in the current proceedings of these matters that he had given notice that he was claiming 20 points on each of Tables 1, 2, 3 and 4 of the Impairment Tables.[153]
[153] Transcript, page 59.
·When asked if between 14 September 2015 and now he had been able to pick up heavier objects, such as a shopping bag with his right hand he said, that was not true as:[154]
[154] Transcript, page 60.
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.
·Confirmed that at the Hearing he had been holding his pen in his right hand, and had been turning pages with his right hand. When it was put to him that he had demonstrated no difficulty with these tasks at the Hearing, he said if he started writing, you would be able to see that his right hand would be swollen.[155]
[155] Transcript, pages 60-61.
·Said he did up buttons but could not continue to, as he had a problem. Confirmed that he was wearing a buttoned shirt at the Hearing and that he had worn a button up shirt to work for many years as a taxi driver. He said he had no other alternative, but that “he could do it if he had to”.[156]
[156] Transcript, page 61.
·When asked if during the 2015/2016 period he could walk around a shopping mall, he said not without pain. When asked if during this period he could stand for more than 10 minutes he said “I told you that I was going through sciatica pain. I was advised to take injection. I was going through remedial massage. I was not able to do many things what I could do. So, for that period, if you are saying that you have seen me somewhere running around in the Woolworths or somewhere, please, this is not true.” He said: “I had this debilitating impairment and if you saw me outside of it, well that’s different. That could be exception. That could be exception, because sometimes I have to do things even though I like or not.”[157]
[157] Transcript, pages 62-63.
·When asked if he understood how implausible that sounded based on the evidence, he said: “You haven’t seen, because if you see and if you can acquire the video footage of the hospitals, probably you do not need to ask this question. I was almost bedridden.”[158]
[158] Transcript, page 63.
·Said he used a walking stick from time to time during the Relevant Periods.[159]
[159] Transcript, page 63.
·Said that at the time of the Hearing he could not walk more than 10 or 20 minutes without pain and that if there was nowhere to sit down or stand up against he would have no alternative than to not have a rest.
·Said that he might from time to time walk to the bus stop but it was not true that he would not sit down on the seat because he did not need to. He specified it would be because, if the bus was about to approach, he would have to sit down and stand right back up and he had a disc bulging at three different discs at least, so he tried not to sit down or stand up whenever he felt like it as it was a tedious task.[160]
[160] Transcript, pages 63-64.
·Confirmed he had difficulty using steps but used the railing not another person to assist him. He said he did not have anyone there to assist him during the Relevant Period.[161]
[161] Transcript, page 64.
·When it was put to him that he did not have a cervical spine and neck injury, but rather a lower back injury and had no difficulties in performing overhead activities, said:[162]
[162] Transcript, page 65.
The injury in the spine – the spinal cord – was through – right through the head to the coccyx area. So, the spinal cord is like nerve compressed. So, there is no disc budging, in my opinion, in the cervical or thoracic spine. But it is in the lumbar spine, sacrum and coccyx, plus hip joints.
…
To 360 degrees, let me explain you. I have difficulty in doing overhead activities all the time, not because of one reason, but because of multiple reasons. If I cannot stand up, I cannot do overhead activity. If I cannot walk and bedridden, I cannot do overhead activity. If you’re asking me that because of the cervical – there is no injury to my cervical spine – I have no difficulty in overhead activities, that is not relevant, because there is no disc bulging in the cervical spine, however, I cannot do many things, because of one of the other reasons – other impairments.
·When asked if he could bend to knee level and straighten up without difficulty, he said not all the time and that during the Relevant Periods he was going through severe pain and he was advised to take injections.[163]
[163] Transcript, page 65.
·When asked about Dr Adam observing him pick up his mobile phone and being seen on the surveillance at Woolworths picking up milk from lower in the fridge, he said he picked the phone up from a sitting position and with the milk he had to, because he did not want to go again and again, he said he had walking problems. He confirmed he was able to do it if he had to.[164]
[164] Transcript, page 65.
·When asked about Dr Adam stating in his report that Mr Kumar told him that he left the grocery shopping to his wife, he said he did not say that. He confirmed that from time to time over the past five or six years he went grocery shopping. When asked if he told Dr Adam that when he was walking he had to stop and rest frequently, he said sometimes.[165]
[165] Transcript, pages 66-67.
·Confirmed that he keeps pointing to the Relevant Periods as the bad period. When asked if he would say he had made a recovery recently, he said “No, I’m not saying that. I’m saying that I have some good days, some bad days and the status you are seeing today is different than what sometimes it can go to.”[166]
[166] Transcript, page 67.
·Said that if there was no alternative he would drive, but he did not remember telling Dr Adam that after 5 or 10 minutes he had to stop because of the pain.[167]
[167] Transcript, page 67.
·Confirmed that he was the person in the surveillance report. He said he did not watch the footage or fully review the report as he considered it to be irrelevant.[168]
[168] Transcript, pages 67-68.
·When asked if there was anything in the surveillance reports that did not accurately summarise the footage, he said:[169]
[169] Transcript, page 68.
No, because what this report says that it is taken somewhere back in 2018. What my claim was, back in 2015, not report. So, in those two periods there is a three-year gap. I do not see any relevance of this report, that how it can fit in that period.
·Agreed that the surveillance report showed him driving to the shopping centre, walking around the shopping centre, and carrying shopping bags in both hands. When asked about the report recording him returning to his vehicle, putting in shopping bags and walking around for a further period of time, he said he did that from time to time.[170]
[170] Transcript, page 69.
·When asked if, by saying that time and again he went to the shops and walked around, put his groceries in the car, and walked back into the shopping centre, that was something he had been doing since 2018, he said:[171]
[171] Transcript, page 69.
Not true. I have been doing this since 2001, but time and again, whenever my situation is not good, I do not do it at all, I do not go out of my home, I just stay at home all the time lying on the bed. Even not, I do not sit.
·Confirmed he walked 10 minutes from the bus stop on Ann Street to Dr Adam’s office and back on 4 June 2018, in a slow pace. Confirmed that he stayed standing after the walk while he waited for the bus.[172]
[172] Transcript, pages 69-70.
·When asked if he could provide further information in relation to which parts of 2015 were his worst periods - was it a bad week, a bad day? - said it was spread throughout the year, he could not say which day in particular was bad, he could not remember. It was not the whole year of 2015 or 2016, he would have good and bad days. When asked when he went overseas in 2015 if that was a better time for him, Mr Kumar said: “Well I had nothing to do here, so I was almost like bedridden or sometimes going through medication, so it was a lot cheaper for me to take medical treatment overseas.”[173]
[173] Transcript, pages 70-71.
·Disagreed with the premise put to him that if he was so badly bedridden that a solution would not be to organise international travel.[174]
[174] Transcript, page 71.
·Confirmed he travelled overseas in March and April 2016 and said:[175]
[175] Transcript, page 71.
Yes. Yes. If you’re going through – if you’re going through one bad situation in your life and you certainly like to see your family and friends, especially parents, or you know, like siblings. So, rather than, you know, waiting here to die one day, if you’re going through that severe depression, you’d probably like to be accompanied by family and friends, especially, you know, like those who care about you, rather than just leave all the hopes and you know – so it was one of those purposes. That I haven’t seen my family and friends.
·When asked if he was talking about the impact of his depression, said no, the depression was secondary, because of the primary impairments and sometimes they got worse and sometimes he got down.[176]
[176] Transcript, page 71.
·When asked to explain why he said his sleep apnoea was fully diagnosed, fully treated and fully stabilised and should be assigned 20 points on Table 1 of the Impairment Tables during the Relevant Periods, directed the Tribunal to three reports of Dr Despas,[177] a respiratory specialist at Westmead Hospital, in particular where the doctor said when he slept supine he had severe sleep apnoea and this was associated with severe hypoxemia. Mr Kumar also directed the Tribunal to a report of Dr Brillante.[178] He said that he had previously raised this condition with Centrelink, however, it was said that it was not required, that he had more than enough to establish a claim without it.[179]
[177] Exhibit 11, Mr Kumar’s further material (pages 1-642) filed by Mr Kumar on 23 July 2019, Report of Dr Despas dated 20 August 2012, pages 24-25; Report of Dr Despas dated 27 June 2012, page 28; Report of Dr Despas, dated 31 October 2011, page 35.
[178] Exhibit 11, Mr Kumar’s further material (pages 1-642) filed by Mr Kumar on 23 July 2019, Report of Dr Ruby Brillante, dated 29 August 2007, page 41; Report of Dr Ruby Brillante dated 7 November 2007, page 42.
[179] Transcript, pages 72-73.
·Indicated he had a clear understanding of the DSP requirements and when asked why he was only now bringing attention to his sleep apnoea condition at the Hearing, said, in his opinion, one condition was more than enough to satisfy, but it had not happened, so all three were taken together and given 20 points, and so he thought it was better to bring it to the Tribunal’s attention now.[180]
[180] Transcript, pages 73-74.
·When the Tribunal explained: that its role was to look at his applications afresh and make a new decision; that what previous decision makers may have decided was not binding; that this Tribunal had to make its own decision; however, what Mr Kumar was seeking to rely on was the fact that in a previous decision he had been assigned points, he indicated he understood that the Tribunal must look at the matter afresh.[181]
[181] Transcript, page 74.
·When asked by the Tribunal to identify the corroborating evidence within the material before the Tribunal in relation to his claim that his sleep apnoea condition caused functional impairments that should be assigned 20 points during the Relevant Periods on Table 1 of the Impairment Tables, Mr Kumar referenced the report of Dr Despas.[182] He said:[183]
[182] Exhibit 11, Mr Kumar’s further material (pages 1-642) filed by Mr Kumar on 23 July 2019, Report of Dr Despas dated 20 August 2012, pages 24-25.
[183] Transcript, page 79.
If the Tribunal is revisiting the previous impairment ratings, then, in that case, I would rather like to rely upon this document. And this is a fact and this has been throughout the years. It has been in all clinical notes, it has been provided in the T documents as well and it is true today and it will be true tomorrow, periods later as well.
·He said he was relying on three reports of Dr Despas and two reports of Dr Ruby Brillante.[184]
[184] Transcript, page 79.
·When asked by the Tribunal to point towards evidence that supported his contention that his right thumb condition should be assigned 20 points under Table 2 of the Impairment Tables during the Relevant Periods, Mr Kumar said:[185]
[185] Transcript, pages 80-81.
The medical reports have been established by the Compensation Court, that was the final decision. Eighteen percent permanent impairment has been given by Dr Stenning and there are further medical reports, not all were in my possession, so I couldn’t provide all, but it has come throughout and it was consistent and that has come into the final ruling of the commission in form of Dr McKeen report that group medical express list throughout. So that is one. Then, it has come in the medical certificates of Dr Aslam…..
·Confirmed he was referring to reports of Dr Aslam from 2011 and 2012.[186]
[186] Transcript, page 81.
·When asked about evidence of functional impairment during the Relevant Periods and whether he was relying on the outcome of his compensation claims, said he was humbly submitting that the condition of his right hand since 2011 had continued, because it had been a permanent injury and the bones had gone, so throughout those years he had been experiencing pain in doing the day-to-day things which attracted 20 points.[187]
[187] Transcript, page 81.
·When the Tribunal took Mr Kumar through the 20 point descriptors on Table 2 of the Impairment Tables, in particular raising that the Table outlines that it applies where the person has limited movement or coordination in both arms or hands, or has an amputation, particularly in light of what he had demonstrated his abilities to be at the Hearing and that he held a driver’s licence, said that he understood that he had to meet 3 of the 5 descriptors. In relation to “both hands together” he said: “I do not have any issue with the left hand, does not mean the left hand is fully functional, but the thing is that I’m saying, that together, both hands, there is some limitation.”[188]
[188] Transcript, pages 82-84.
·When asked by the Tribunal to identify corroborating evidence in relation to his contention that the functional impairments resulting from his lower limb condition should be assigned 20 points under Table 3 of the Impairment Tables during the Relevant Periods, referred the Tribunal to a report of Dr Singh where he said: “Mr Kumar is fit for suitable duties and does not lift more than 5 kgs, sit for more than 30 to 60 minutes at a time, or engage in repetitive, prolonged standing activities.” When brought back to the descriptors that talk about walking around a shopping centre, Mr Kumar said that he did not go out to the shopping centre then. The Tribunal asked Mr Kumar about the three Relevant Periods and he indicated that his conditions were different during the three Relevant Periods. He was unable to clarify what he meant but said that he wanted to rely on the findings of the SSCSD.[189]
·When asked by the Tribunal to identify corroborating evidence in relation to his contention that the functional impairments resulting from his spine condition should be assigned 20 points under Table 4 of the Impairment Tables during the Relevant Periods, said:[190]
Yes, I was bed ridden so I was not able to perform any overhead activities because I was bed ridden. Turn their head or bend their neck without moving their trunk, it was – I was in extreme pain. It was – the nerve was compressed so badly that getting up or sitting down from the bed was hard. So that is the second one. The third one, bend forward to pick up light object. That was unimaginable at that time. Remain seated for 10 – at least 10 minutes. Not without my extreme pain I could do that. I used to have pain even for one minute because not only the – not only the spinal disc bulging and spinal canal stenosis but there are sacrum problem and seating in different circumstances. Sitting on a very – something very – which has good cushioning. That is a different thing. Sitting on something flat surface. Hard surface. Sitting on a bike. Never sat on a bike entirely in my life since the accident. Never sat on a motorbike since the day I was injured and until now. I’m talking about 20 years now.
·Confirmed that he relied on “Dr Stenning’s point of view and opinion and permanent assessment to the workers’ compensation court settlement”, a physiotherapist report from 2001 and 2003, Dr Assesm’s report of 2011, Dr Aslam’s reports from 2011 and 2012 and evidence that could be obtained from the Westmead Hospital and Concord Hospitals in New South Wales.[191]
·When asked about his mental health condition and whether it had been diagnosed by a psychiatrist or clinical psychologist, said he did not know.[192]
·When asked about his continuing inability to work during the Relevant Periods or the following 2 year period, said he could not work or study for at least 15 hours per week and that was accepted by Centrelink at times. He said this was: “Because of the impairments and this has been tested throughout the years. It has been – there were many rehabilitation providers involved and no one could have successfully accomplished this task, even though I tried my best. I even took some personal loan, did course on my own, like, the teaching course. I had a loan on that one too. Then further on I had also tried to attempt to do many other activities and degree. Despite those all, to date I have been coming to this tribunal for the last five or six years now and there are many rehabilitation providers, program of support providers involved, none of them were able to place me anywhere of whatever type in any place on any (indistinct). Not at all. So that is the issue and that’s - - -“[193]
·When asked if he had been exited from a POS, said he had in December 2014. Mr Kumar was unable to direct the Tribunal to any evidence supporting that he had been exited from a POS at any stage during the POS Periods. A report at T70[194] was referred to, it indicated that Mr Kumar was still enrolled in the POS.[195]
[189] Transcript, pages 87-89.
[190] Transcript, pages 89-90.
[191] Transcript, pages 90-91.
[192] Transcript, page 91.
[193] Transcript, pages 91-92.
[194] Exhibit 1, T Documents, Volume 1, T70, pages 230-233, Information about participation in a program of support.
[195] Transcript, pages 92-97.
Evidence of Dr Adam
The Secretary contended that Mr Kumar’s impairments do not attract 20 points under the Impairment Tables and that the evidence of Dr Adam should be accepted by the Tribunal on the basis that:[236]
·Dr Adam holds specialist qualifications.
·Dr Adam’s report was comprehensive, well-reasoned and addressed the very issues that the Tribunal needs to look at.
·Dr Adam was made available for cross-examination and was tested extensively.
·Dr Adam’s opinion did not alter in any meaningful way favourable to Mr Kumar than what was in his written report, such that the conclusion was that Mr Kumar’s impairments did not attract any more than 0 points under Tables 2, 3 and 4 of the Impairment Tables.
[236] Transcript, page 158.
The Secretary contended that even if Dr Adam’s evidence did not exist, when working through whether there was any other corroborating evidence in relation to Mr Kumar’s contentions, which were only raised at Hearing, that he satisfied the 20 point descriptors across Tables 1,2,3 and 4 of the Impairment Tables. The Secretary said:[237]
I said at the outset there was a question real as to, well, what is the corroborating evidence, and the Administrative Appeals Tribunal carefully – and took a lot of time – an opportunity was given to the Applicant to slowly work through what his case was in respect of that issue, and he pointed to various pieces of evidence but in our submission, none of that evidence is adequate corroborating evidence, which must be met to support the 20 Points.
[237] Transcript, page 158.
The Secretary contended there was no evidence that Mr Kumar’s mental health condition was diagnosed by a psychiatrist or clinical psychologist.
The Secretary noted that Mr Kumar’s sleep apnoea condition was not raised prior to the Hearing and, as such, had not previously been addressed by it. The Secretary contended while the Tribunal carefully took Mr Kumar through the condition and he was given an opportunity to point to the evidence he relied upon, that evidence from 2007, 2011 and 2012 well predated the Relevant Periods in this matter. The Secretary acknowledged that there was a diagnosis and there was what appears to be treatment that has been exhausted, because of the absence of any impairment of significance that needed continuing treatment. The Secretary contended that this significantly meant that, although it may be open to the Tribunal to acknowledge that there was a diagnosis of the sleep apnoea which was fully diagnosed and had been treated and stabilised, there was no corroborating evidence that there was a 20 point functional impairment or any impairment at all under Table 1 of the Impairment Tables during the Relevant Periods.[238]
[238] Transcript, pages 158-159.
The Secretary acknowledged that there had been earlier assessments by JCA’s and the HPAU, however, that Dr Adam’s evidence should be preferred as he was the only specialist to have had the benefit of looking at all of the available, relevant records over a significant period of time, and then coupled that with taking a history from Mr Kumar, examining the history and importantly, had the benefit of the surveillance material, which was real evidence of what Mr Kumar had been doing at a point in time.[239]
[239] Transcript, page 159.
The Secretary contended that Mr Kumar was an unreliable witness. The Secretary contended that Mr Kumar’s evidence stretched credibility to a point where the Tribunal ought not accept his evidence where it was not supported by some independent evidence for the following reasons:[240]
·It was apparent in Mr Kumar’s evidence that there was an evasiveness in respect of his answers to questions.
·There are clear inconsistencies in Mr Kumar’s evidence, most of which had usefully been commented on by Dr Adam. Dr Adam had the benefit of being medically qualified, but also had a direct conversation with Mr Kumar, then looked at the records, and looked at Mr Kumar both when he attempted an examination and when he just did things in the examination room, and the surveillance material.
[240] Transcript, pages 159-160.
The Secretary contended that at the Relevant Periods Mr Kumar had not met the POS requirements as his relevant participation days fell short of the requirements.[241]
[241] Transcript, page 160.
The Secretary contended that to the extent that Mr Kumar sought to rely on the earlier Workers’ Compensation process or Return to Work Process, this matter had been determined previously by the Tribunal then the Federal Circuit Court on appeal initially and then on further appeal to the Federal Court.[242]
[242] Transcript, page 160.
Relying on the evidence of Dr Adam, the Secretary submitted that, even if the POS requirements were met by Mr Kumar, his impairments did not prevent him from undertaking work or a training activity during the Relevant Periods.[243]
[243] Transcript, pages 160-161.
The Secretary contended that Mr Kumar did not satisfy sections 94(1)(b) and (c) of the Act and that the correct decision was to refuse each of his claims for DSP.
CONSIDERATION
At Hearing Mr Kumar raised what he considered to be a constitutional issue in relation to the interactions between the Compensation Court of New South Wales and the operation of the DSP requirements set out in the Act. The Tribunal outlined that constitutional matters were not matters that could be considered by the Tribunal.[244] Further, the Tribunal understands that these issues were considered by His Honour, Logan J in Kumar v Secretary, Department of Social Services [2018] FCA 2119.
[244] Transcript, page 23.
Mr Kumar contended that an issue before the Tribunal related to the deemed date and potential back pay of his claims for DSP. The contentions advanced by Mr Kumar related to dates beginning some 3 years prior to the claims for DSP currently being reviewed by the Tribunal. The Tribunal considers that the issue of when payment of DSP should commence where a person qualifies for DSP does not need to be addressed until such time as the position is reached that the person qualified for DSP.[245] For the reasons set out below such a position is not reached.
[245] Consistent with the decision of His Honour, Logan J in Kumar v Secretary, Department of Social Services [2018] FCA 2119.
The Tribunal went to great lengths to explain the DSP requirements to Mr Kumar and that the role of the Tribunal was to look at his claims for DSP afresh and make a new decision based on the evidence before it.
Did Mr Kumar’s impairments attract 20 points or more under the Impairment Tables – section 94(1)(b) of the Act?
Mental Health Condition
There is limited evidence before the Tribunal in relation to Mr Kumar’s mental health condition. The Secretary contended that there was no evidence before the Tribunal that Mr Kumar’s depression had been diagnosed by a psychiatrist or clinical psychologist either before or during the Relevant Periods.
To be considered fully diagnosed, Table 5 of the Impairment Tables, which relates to mental health, requires that the diagnosis of a mental health condition be made by an appropriately qualified medical practitioner (this includes a psychiatrist), with evidence from a psychologist (if the diagnosis has not been made by a psychiatrist).[246]
[246] Impairment Table 5 – Mental Health Function, Part 3 of the Determination.
The Tribunal asked Mr Kumar about his mental health condition and his overall position was that he considered he had enough impairment points for his other conditions. Mr Kumar did not point the Tribunal to any evidence that would establish that his mental health condition was fully diagnosed, fully treated and fully stabilised during the Relevant Periods.
While the Tribunal accepts that Mr Kumar may have a mental health condition, based on the evidence before it, the Tribunal finds that this condition was not fully diagnosed during the Relevant Periods. There is no corroborating evidence that this condition was diagnosed by a psychiatrist or clinical psychologist during the Relevant Periods.
As such, Mr Kumar’s mental health condition cannot be considered permanent for the purposes of applying the Impairment Tables and the Tribunal is unable to assign impairment points for the condition.
Sleep Apnoea Condition
Mr Kumar contended for the first time at Hearing that he had a sleep apnoea condition during the Relevant Periods. As set out in the evidence above he pointed to reports of Dr Despas and Dr Brillante to establish his contention that this condition was fully diagnosed, fully treated and fully stabilised during the Relevant Periods.
Mr Kumar contended that the functional impairments resulting from his sleep apnoea condition should be assigned 20 impairment points under Table 1 of the Impairment Tables. Mr Kumar told the Tribunal he was relying on the report of Dr Despas in support of this contention.
The Secretary acknowledged that there was a diagnosis and, what appeared to have been, treatment that had been exhausted, because of the absence of any impairment of significance that needed continuing treatment. The Secretary contended that even should the Tribunal find that Mr Kumar’s sleep apnoea condition was fully diagnosed, fully treated and fully stabilised during the Relevant Periods there was no corroborating evidence that there was any impairment at all under Table 1 of the Impairment Tables during the Relevant Periods.
The Tribunal notes that despite asking Mr Kumar to outline the functional impairment that resulted from his sleep apnoea condition and to identify the corroborating evidence he was unable to do so.
Consequently, based on the medical evidence before the Tribunal it is satisfied that Mr Kumar’s sleep apnoea condition was fully diagnosed, fully treated and fully stabilised during the Relevant Periods, and any resulting impairment can be considered in accordance with the descriptors of Table 1 of the Impairment Tables.
Given the absence of any evidence of any functional impairment being caused by Mr Kumar’s sleep apnoea condition during the Relevant Periods, the Tribunal finds that this condition can be assigned 0 impairment points.
Other Conditions – Upper Limb, Lower Limb and Spine Conditions
Mr Kumar’s other conditions include his upper limb, lower limb and spine conditions. Based on the evidence before it and the concession by the Secretary, the Tribunal is satisfied that Mr Kumar’s other conditions were fully diagnosed, fully treated and fully stabilised during the Relevant Periods. Consequently, Mr Kumar’s other conditions are considered permanent for the purposes of applying the Impairment Tables and, as such, any resulting functional impairment caused by these conditions during the Relevant Periods can be considered in accordance with the relevant Impairment Table.
Mr Kumar contended that his upper limb, lower limb and spine conditions were all fully diagnosed, fully treated and fully stabilised during the Relevant Periods. He initially contended in his written submissions that his lower limb and spine conditions should be assigned 10 points each under Tables 3 and 4 of the Impairment Tables respectively and that his upper limb condition should be assigned 20 points under Table 2 of the Impairment Tables. At Hearing, he told the Tribunal he subsequently contended that these three conditions should each be assigned 20 impairment points under the relevant Impairment Tables.
Mr Kumar’s evidence at Hearing, to a large extent, was contradictory and difficult to obtain in relation to these other conditions.
On one hand Mr Kumar contended that the issue of how many impairment points his conditions should be assigned and whether he met the requirements of section 94(1)(b) of the Act was not in question. He submitted that this issue had been settled by previous Tribunal and Court decisions and that these decisions, together with the decisions of the Workers’ Compensation Commission, provided finality to the establishment that he should be assigned 20 impairment points in relation to his conditions. He indicated that such finality could not or should not be disturbed by this Tribunal. However, at the same time, when it was explained to him by the Tribunal that the Tribunal’s role was to look at the matter afresh and make its own decision, he said he understood this.
Mr Kumar submitted that any dispute about impairments was baseless, in light of the findings of the “Honourable Courts and Tribunals”.
On the other hand, Mr Kumar then himself looks to set aside those decisions which at no time assigned him a severe impairment rating of 20 points for any of these other conditions.
Mr Kumar was unable to separate his understanding of the findings of the Workers’ Compensation Commission relating to his claim for workers’ compensation regarding his other conditions and the eligibility requirements for DSP. As outlined in the law section of this decision, the definition of permanency of a condition as it relates to the DSP is different to the general propositions of permanency, due to the legislative requirements put in place. In this instance, however, the Tribunal notes that it has been found that Mr Kumar’s other conditions have been considered to be permanent for the purposes of assessing their functional impairments under the Determination.
The Tribunal rejects Mr Kumar’s contention that the question of whether he has met the requirements of section 94(1)(b) has been settled and, as such, a decision different to any of the previous decision cannot be made. This contention demonstrated to the Tribunal that, while Mr Kumar repeatedly said that he understood the DSP requirements and role of the Tribunal in reviewing the decisions about his claims for DSP, his understanding of these and how his particular circumstances fit within them do not accord with the actual legal requirements in place.
The role of the Tribunal is to consider the material before it and make the correct and preferable decision. The Tribunal stands in the shoes of the original decision maker, and makes a decision afresh rather than reviews their decision. The Federal Court in Drake v Minister for Immigration and Ethnic Affairs (1970) 46 FLR 409; 24 ALR 577 set out that:
The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal.
As such, the Tribunal is required to consider the information before it and make its own decision. The purpose of the Tribunal is not to simply agree with previous decisions, rather it must itself be satisfied as to what the correct and preferable decision is based on all information before it, noting that often such material may not have been before the previous decision makers.
Consequently, the Tribunal must consider the functional impairments resulting from Mr Kumar’s other conditions during the Relevant Periods in accordance with the Impairment Tables.
As previously provided, Mr Kumar contended at Hearing that his other conditions should be assigned 20 impairment points under Tables 2, 3, 4 of the Impairment Tables.
When asked to take the Tribunal to corroborating evidence that his other conditions caused severe functional impairments for each of the identified Tables during the Relevant Periods, he was unable to do so. Mr Kumar also did not advance arguments or his personal evidence that supported how it was that the functional impairments resulting from his other conditions were severe.
Mr Kumar contended that the Tribunal should not accept the evidence of Dr Adam as he was not an expert in all areas and his examination and the resulting report occurred in 2018, however, he provided a view about what the situation was in 2015. Mr Kumar submitted that the report of Dr Adam was irrelevant and highly objectionable, was biased, meant to serve his client and carried no weight. He contended that the report did not take into consideration material evidence and was solely based on a surveillance report.
The Secretary relied upon the report and evidence provided by Dr Adam and contended that Mr Kumar’s other conditions should be assigned zero points under each of Tables 2, 3 and 4 of the Impairment Tables. The Secretary contended that Dr Adam’s evidence should be accepted by the Tribunal as he holds specialist qualifications, his report was comprehensive, well-reasoned and addressed the very issues the Tribunal needs to look at and that, while extensively cross examined, Dr Adam’s opinion did not alter in any meaningful way.
The Secretary acknowledged the previous assessments of the JCAs and the HPAU, however, contended that Dr Adam’s evidence should be preferred as he was the only specialist to have had the benefit of looking at all of the available, relevant records over a significant period of time, and then coupled that with taking a history from Mr Kumar, examining the history and importantly, had the benefit of the surveillance material, which was real evidence of what Mr Kumar had been doing at a point in time.
The Tribunal asked Dr Adam to explain why in his 2018 report he was able to say that his view was not just for that period in time but extended back a number of years to the Relevant Periods. Dr Adam’s response is provided at paragraph 102 above and, in the view of the Tribunal, established that his evidence could be taken to apply both to the current situation and that at the time of the Relevant Periods.
The Tribunal takes this view having regard to Mr Kumar’s response to the Tribunals question regarding the difference between how his other conditions were affecting him on the day of the Hearing compared to when he made the first claim for DSP that is before the Tribunal (being the September 2015 Claim). Mr Kumar agreed with the Tribunal’s summary of his answer being that: his conditions were not far worse than they had been, nor were they far better, they were never the same every day, they fluctuated depending on what he had been doing or how his body was feeling.[247] As such, Mr Kumar’s position had not materially changed between the Relevant Periods and when he was examined by Dr Adam.
[247] Transcript, page 28.
Dr Adam noted both in his report and during his evidence at Hearing that there was an inconsistency between Mr Kumar’s evidence and what he had been observed to be able to do. The Tribunal also noted such an inconsistency as Mr Kumar demonstrated at Hearing that he was able to sit and stand for periods of time significantly longer than 10 or even 30 minute intervals, he was able to use a pen to write notes using his right hand, he was able to successfully use a computer, and mobilise in and out of the Hearing Room.
Mr Kumar was articulate and had clearly put a lot of time into putting together his written submissions and evidence, and preparation for Hearing. Mr Kumar was not, however, able to progress any evidence that corroborated his contended level of functional impact. Mr Kumar gave evidence that he had difficulty undertaking a number of tasks due to his other conditions and that at times he had been bed ridden during the Relevant Periods, however, he was, during this time, able to care for himself and travel overseas. The Tribunal also notes that Mr Kumar did not dispute the findings of the surveillance material, only its relevance.
The Tribunal accepts that Mr Kumar’s other conditions are lifelong conditions that both during the Relevant Periods and beyond cause him some functional impairment. However, a large section of the Australian population lives with medical conditions which cause them stiffness, pain and some functional impact. That does not mean that they cannot and do not still live a functional life. Mr Kumar himself attended to shopping, took his child to school, could drive a car, could walk around unassisted and was able to comprehensively compile a large amount of evidence and provide written material as part of his Workers’ Compensation and DSP claims. Merely having a condition that causes functional impact does not mean that such functional impact would meet the descriptors of the Impairment Tables to establish that such a functional impairment should be assigned a rating above zero.
In considering the evidence before the Tribunal, both written and provided orally at Hearing the Tribunal prefers the evidence of Dr Adam and finds that during the Relevant Periods Mr Kumar’s lower limb, upper limb and spine conditions can be assigned zero points under Tables 2, 3 and 4 of the Impairment Tables respectively.
Did Mr Kumar have a continuing inability to work – section 94(1)(c) of the Act?
Although the Tribunal does not need to consider whether Mr Kumar met the requirements of section 94(1)(c) of the Act, having found that he has not met the requirements of section 94(1)(b), for completeness it will do so.
The evidence before the Tribunal establishes that at the times of making his September 2015, May 2016 and November 2015 claims for DSP, Mr Kumar had not met the POS requirements. He had not participated in a POS for the required number of days, further there was no evidence before the Tribunal that any of the exemptions to doing so applied. Consequently, even if the Tribunal had have found that Mr Kumar had met the requirements of section 94(1)(b) of the Act, as a result of having a total of 20 impairment points cumulatively across multiple Impairment Tables, his applications would still have been unsuccessful
The Tribunal notes that Mr Kumar contended that he met the POS requirements as a result of having completed a return to work program through his workers’ compensation claim process, and that this should apply for DSP purposes. Mr Kumar had pressed this position previously through the Tribunal, Federal Circuit Court and Federal Court in relation to a claim for DSP lodged on 1 May 2013. As set out above in the Secretary’s written submissions, the Tribunal[248] was not satisfied that a return to work plan implemented for the purposes of Mr Kumar’s workers’ compensation matter was a POS. On appeal the Federal Circuit Court[249] found that such a finding was plainly open, indeed inevitable on the material before the Tribunal and even if it could, it was undertaken and completed by Mr Kumar well before the 36 month period immediately preceding the relevant claim and could not be a POS for relevant purposes. The Federal Circuit Court’s decision was upheld by the Federal Court.[250]
[248] Kumar and Secretary, Department of Social Services [2014] AATA 442.
[249] Kumar v Secretary, Department of Social Services [2016] FCCA 640.
[250] Kumar v Secretary, Department of Social Services [2017] FCA 158.
Consequently, this Tribunal does not accept Mr Kumar’s continued contention that he had satisfied the POS requirements by virtue of his historical participation in a return to work program as part of a workers’ compensation claim, regardless of the fact that the claim also related to Mr Kumar’s lower limb, upper limb and spine conditions.
Had the Tribunal have found that Mr Kumar met the requirements of section 94(1)(b) of the Act as a result of having a severe impairment (20 points on one table) or a total of 20 impairment points cumulatively across multiple Impairment Tables and that he had satisfied the POS requirements, it would have been necessary to consider whether Mr Kumar’s impairments were sufficient of themselves to either prevent him from:
(a)undertaking work for at least 15 hours a week independently of a POS within 2 years from the date of his claims for DSP; or
(b)participating in a training activity for at least 15 hours a week during the 2 years from the date of his claims for DSP or whether such activity was unlikely to enable him to do any work independently of a POS with the following 2 years.
Mr Kumar told the Tribunal he was prevented “because of the impairments and this has been tested through the years”[251] from undertaking work or a training activity for at least 15 hours a week within 2 years from the date of his claims and that he had been engaging with a POS provided for the previous 5 or 6 years and none of them were able to place him.
[251] Transcript, page 91-92.
Dr Adam gave evidence that his opinion was that Mr Kumar could perform any role of a more sedentary nature and could have even worked full time as a taxi driver.
The JCA report dated 15 January 2016 assessed Mr Kumar as having a future work capacity within 2 years with intervention of 15-22 hours a week.
Dr Gilhotra’s oral evidence to the HPAU was that Mr Kumar had the capacity for light work of more than 15 hours per week with retraining and support and that she pushed/encouraged him to attend work.
The Tribunal also notes that Mr Kumar holds a number of tertiary qualifications which have been obtained after his initial workplace injury and demonstrate an aptitude to successfully undertaking educational/training activities.
The evidence before the Tribunal does not corroborate Mr Kumar’s contention that he was prevented because of his impairments from undertaking work or a training activity for at least 15 hours a week within the 2 years from the date of his claims for DSP.
Based on the evidence before it the Tribunal finds that during the Relevant Periods Mr Kumar was not, as a result of his impairments alone:
(a)unable to work for at least 15 hours per week independently of a POS within 2 years from the date of his claims for DSP; or
(b)unable to participate in a training activity during the 2 years from the date of his claims for DSP or that such activity was unlikely because of his impairments to enable him to do any work independently of a POS within the following 2 years.
Consequently, the Tribunal finds that Mr Kumar did not have a continuing inability to work and did not satisfy the requirements of section 94(1)(c) of the Act.
CONCLUSION
Mr Kumar has made a number of claims for DSP which both pre and post-date the applications at hand. The Tribunal has been provided with medical and other associated documents dating from 2001 to 2019.
Mr Kumar sustained injuries while carrying out his employment in 2001 and 2011 and consequently has medical conditions which are impacting upon his ability to function.
Based on the evidence before it, the Tribunal finds that during the Relevant Periods Mr Kumar had impairments for the purposes of section 94(1)(a) of the Act which included lower limb, upper limb, spine, mental health and sleep apnoea conditions.
Based on the evidence before it, the Tribunal finds that Mr Kumar’s:
(a) mental health condition was not fully diagnosed, fully treated and fully stabilised during the Relevant Periods and as such cannot be considered permanent for the purposes of assigning an impairment rating under Table 5 of the Impairment Tables;
(b) sleep apnoea condition was fully diagnosed, fully treated and fully stabilised during the Relevant Periods and can be assigned 0 impairment points under Table 1 of the Impairment Tables;
(c) upper limb condition was fully diagnosed, fully treated and fully stabilised during the Relevant Periods and can be assigned 0 impairment points under Table 2 of the Impairment Tables;
(d) lower limb condition was fully diagnosed, fully treated and fully stabilised during the Relevant Periods and can be assigned 0 impairment points under Table 3 of the Impairment Tables; and
(e) spine condition was fully diagnosed, fully treated and fully stabilised during the Relevant Periods and can be assigned 0 impairment points under Table 4 of the Impairment Tables.
Consequently, during the Relevant Periods, Mr Kumar did not have 20 impairment points under the Impairment Tables and the requirements of section 94(1)(b) of the Act were not met.
Based on the evidence before it, the Tribunal finds that during the Relevant Periods Mr Kumar did not have a continuing inability to work.
Consequently, Mr Kumar did not meet the requirements of section 94(1)(c) of the Act.
Accordingly, the Tribunal sets aside the decisions under review and in substitution decides that Mr Kumar did not satisfy the requirements of sections 94(1)(b) and (c) of the Social Security Act 1991 (Cth) at the time of making his claims for the Disability Support Pension on 14 September 2015, 9 November 2015 and 10 May 2016 or within 13 weeks thereafter respectively.
I certify that the preceding 181 (one hundred and eighty-one) paragraphs are a true copy of the reasons for the decision herein of
Senior Member PJ Clauson AM and Member D Mitchell
.....................[SGD]..........................
Associate
Dated: 8 May 2020
Date of hearing: 26 July 2019 Mr Kumar: In Person Advocate for the Secretary: Mr Matthew Hawker
Solicitors for the Secretary: Sparke Helmore Lawyers
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