Leo Kalathas and Secretary, Department of Social Services

[2015] AATA 191

[2015] AATA 191 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/3923
Re	Leo Kalathas
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr P McDermott RFD, Senior Member
Date	30 March 2015
Place	Brisbane

The decision under review is affirmed.

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Dr P McDermott RFD, Senior Member

CATCHWORDS

DISABILITY SUPPORT PENSION – Spinal Condition – Depression – Ischaemic Heart Disease – Conditions not fully diagnosed, treated and stabilised – Shoulder condition fully treated, diagnosed and stabilised – Total impairment rating of 0 points – No active participation in program of support – Decision under review affirmed.

LEGISLATION

Social Security Act 1991 (Cth) ss 92; 94

Social Security (Administration) Act 1999 (Cth) ss 13; 41; 42; Sch 2, cl 3; Sch 2, cl 4

SECONDARY MATERIALS

Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (Cth)

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

REASONS FOR DECISION

Dr P McDermott RFD, Senior Member

30 March 2015

1. I have to determine whether Mr Leo Kalathas (“the applicant”) is entitled to disability support pension (“DSP”).

   PRIOR DECISIONS

2. On 8 August 2013, the applicant lodged his claim for DSP. On 6 November 2013, his claim was rejected. On 17 April 2014, an authorised review officer affirmed the decision to reject the claim. On 26 June 2014, the Social Security Appeals Tribunal (“SSAT”) affirmed the decision. On 29 July 2014, the applicant made an application to this Tribunal for review of the decision.

   RELEVANT LEGISLATION

3. The relevant legislation that is applicable to the determination of this application is the Social Security Act 1991 (Cth) (“the Act”) and the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”).

4. Section 94 of the Act relevantly provides that in order to be qualified to receive DSP, an applicant must have:

   (a)a physical, intellectual or psychiatric impairment (s 94(1)(a) of the Act);

   (b)an impairment rating of at least 20 points (s 94(1)(b) of the Act); and

   (c)a continuing inability to work (s 94(1)(c) of the Act).

5. The Administration Act provides that the start day for a claimant who qualifies to receive DSP is the date on which the claimant contacts the Department of Social Services regarding the payment: that is the deemed date of claim (ss 13, 41, 42, Sch 2 cl 3 of the Administration Act). The applicant will be entitled to receive DSP if he was qualified to receive that benefit as at the deemed date of the claim. If a claimant is not qualified to receive DSP on that date, the claimant will nevertheless be entitled to receive DSP if he or she qualifies within thirteen weeks of lodging a claim. In that event, the start-day is the day that the claimant becomes qualified to receive the social security benefit (Sch 2 cl 4(1) of the Administration Act).

6. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Disability Support Pension Determination”) came into force on 1 January 2012. The Disability Support Pension Determination contains the Impairment Tables which are function based and intended to determine the level of functional impact of impairments (s 5(2) of the Disability Support Pension Determination).

7. The Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (“the Active Participation Determination”) came into force on 3 September 2011. Section 5(1) of the Active Participation Determination provides what requirements must be met for an applicant to be regarded as having undertaken active participation in a program of support.

   ASSESSMENT PERIOD

8. I am required to determine whether the applicant became qualified at any time within the thirteen week period (“the relevant period”) from when the applicant lodged the claim for DSP. There is no issue that this period commenced on 8 August 2013 and concluded on
   7 November 2013.

   ISSUES FOR DETERMINATION

9. I am required to determine:

   owhether the applicant, as at the date of the claim (or within 13 weeks of that date), had a physical, intellectual or psychiatric impairment; and

   owhether the applicant had an impairment rating of at least 20 points or more under the Impairment Tables; and

   owhether the applicant had a continuing inability to work.

   WHETHER THE APPLICANT HAD AN IMPAIRMENT

10. The claim form of the applicant outlines a number of impairments. I find that, within the relevant period, the applicant had impairments as required by s 94(1)(a) of the Act.
    To make this finding, I rely upon the medical report of Dr Smith, the treating doctor, dated 2 August 2013 in which Dr Smith reported that the applicant has depression and chronic back pain. The material before me also discloses that the applicant has ischaemic heart disease and a left shoulder condition.

    ASSESSMENT OF IMPAIRMENTS

11. I am required to determine whether, within the relevant period, the impairments of the applicant can be assigned an impairment rating of 20 points or more under the Impairment Tables as required by s 94(1)(b) of the Act.

    Spinal condition

12. Dr Smith reported on 2 August 2013 that the applicant suffers from “Chronic Back Pain, Decreased Mobility/Flexibility - marked Degenerative Lumbar Disc changes”.  Dr Smith stated that the condition has existed for “some years” and that the onset of the condition was “prior to 2009”. She also stated that past treatment has been “Rest, Analgesia, Physiotherapy”. Dr Smith reported that the current symptoms (as at 2 August 2013) included “chronic back aches, stiffness, with episodic more severe episodes of back pain”.

13. The Disability Support Pension Determination provides that an impairment rating can only be assigned to an impairment if the person’s impairment is permanent (s 6(3)).

    
    

    For this purpose, a condition is permanent if the condition has been fully diagnosed by an appropriately qualified medical practitioner, and if the condition has been fully treated and fully stabilised. In my opinion, these conditions were not met within the relevant period.

14. I do not consider that the condition has been fully diagnosed by an appropriately qualified medical practitioner. The applicant confirmed that, in recent years, the spinal condition has yet to be investigated by an orthopaedic specialist.  In her report, Dr Smith stated that her diagnosis was not presumptive and had not been supported by further specialist opinion. There is evidence of a radiological examination which was undertaken in 2009 which has confirmed that there are degenerative disc changes at the L1/2, L2/3, L3/4 and L4/5 disc levels. One matter of concern which I mentioned at the hearing is that, while it has been reported that the applicant has chronic back pain, he was nevertheless able to undertake an airport security training course which extended past the relevant period. Until the spinal condition has been investigated by an orthopaedic specialist who can advise on treatment options, I do not consider that the spinal condition can be regarded as having been fully diagnosed or treated within the relevant period.

15. The Disability Support Pension Determination provides that a condition is fully stabilised if a person has undertaken reasonable treatment for the condition (s 6(6)). The expression “reasonable treatment” is defined in that Determination to mean treatment which is available and accessible to the person at a reasonable cost (s 6(7)). One form of treatment that the applicant is undertaking is physiotherapy treatment, although at present the applicant has limited sessions available to him. There is no evidence as to the availability of physiotherapy treatment in the public hospital system.

16. The applicant has not been referred to a pain management clinic even though he complains of chronic pain.

17. I find that the spinal condition of the applicant was not fully treated and stabilised at the date of claim or within the relevant period. I consider that the spinal condition cannot be assigned a rating under the Impairment Tables.

18. The authorised review officer and the SSAT assigned an impairment rating of 5 points under Table 1 – Functions requiring Physical Exertion and Stamina (“Table 1”) for the spinal condition. If an impairment rating has to be assigned to the spinal condition,

    
    

    I consider that the appropriate Table to apply is Table 4 – Spinal Function (“Table 4”), and not Table 1. This is because the Introduction to Table 4 provides that Table 4 is to be used where there is a “permanent impairment resulting in functional impairment when performing activities involving spinal function”.

19. The reported symptoms of the applicant certainly would not warrant a rating of 10 points being assigned to the spinal condition under Table 4. To be assigned a rating of 10 points under Table 4, the applicant must be able to sit and drive a car for at least 30 minutes, and at least one of the matters in paragraphs (a), (b), (c) or (d) must apply. There is no cogent evidence that any of those paragraphs apply. The applicant informed the SSAT that he was able to drive to Melbourne providing that he took breaks every 2 or 3 hours.

20. If it were possible for an impairment rating to be assigned to the spinal condition, the reported symptoms of the applicant certainly would support a rating of no more than

    
    

    5 points under Table 4. The fact that the applicant has reduced flexibility and stiffness would support a conclusion that the applicant has difficulty in bending to knee level and straightening up again without difficulty, or that he has some difficulty in turning his truck. There is no evidence that the applicant has difficulty in moving his head.

    Depression

21. Dr Smith reported on 2 August 2013 that the applicant suffers from “depression”.

    
    

    Dr Smith reported that the applicant had received “Initial GP counselling” and had “started Antidepressants” on 18 July 2013. Dr Smith also reported that the applicant had past treatment from a clinical psychologist “after marital B’up in 2007”.
    In 2007, the applicant engaged in 12 sessions of treatment with the clinical psychologist. There is no report from the clinical psychologist which confirms a diagnosis of the condition.

22. The diagnosis of a mental health condition is provided for in Table 5 – Mental Health Function (“Table 5”):

    The 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).

23. There is no evidence of the applicant being diagnosed by a psychiatrist or clinical psychologist as having a mental health condition. In these circumstances, an impairment rating cannot be assigned to the depression condition. Even if it were accepted that the applicant had a depression condition, the condition could not be assigned an impairment rating as the condition was not fully treated and fully stabilised as required by the Disability Support Pension Determination. This is because treatment in the form of medication had commenced on 18 July 2013. The applicant stated that in 2014 he had 15 sessions with a psychologist who is attached to a Melbourne medical practice, but there is no report in evidence about that treatment. A report from a medical practitioner from that practice issued on 7 December 2013 indicates that the depression had, at that time, been “fluctuating”: this indicates that the condition was not stabilised after the relevant period.

24. On 2 August 2013, Dr Smith reported that the depression condition was expected to persist for 3-24 months. This condition could not be assigned an impairment rating under Table 5 because the condition could not be regarded as being a permanent condition. This is because the Disability Support Pension Determination provides that a permanent condition is one that “is more likely than not, in light of available evidence, to persist for more than 2 years” (s 6(4)(d)).

    Ischaemic heart disease

25. Dr Smith reported on 2 August 2013 that the applicant suffers from ischaemic heart disease and that stent procedures were undertaken in January and February 2008.

    
    

    Having regard to that report, I accept that the heart condition has been fully diagnosed by an appropriately qualified medical practitioner and that the condition has been fully treated and fully stabilised. The heart condition can certainly be regarded to be a permanent condition as required by the Disability Support Pension Determination.
    The heart condition can be therefore be assigned an impairment rating under Table 1.

26. There is evidence that the heart condition affects the ability of the applicant to function.

    Dr Smith reported that the heart condition was generally well managed and caused minimal or limited impact on the ability of the applicant to function. In these circumstances, a rating of 0 points under Table 1 is appropriate. The descriptors for that rating are that a person is able to undertake exercise appropriate to their age for at least 30 minutes at a time, and has no difficulty completing physically active tasks around their home and community. The applicant informed the job capacity assessor on

    
    

    9 August 2013 that he walks for 7-10 kilometres at a time 4 days a week, dresses himself and does all housework tasks. The Job Capacity Assessment Report also records that the applicant had no difficulty picking up a light object from knee height.

    Left shoulder condition

27. On 8 August 2014, Mr Mangos, General Surgeon, reported on the left shoulder condition. Mr Mangos reported that the condition was “a severe aggravation of previous shoulder rotator cuff injuries”. Mr Mangos said the applicant:

    had a previous left shoulder injury following a fall but it would appear that he had recovered well enough to return to most types of work and it was not until the injury of 28/11/2013 that he had a sudden abrupt injury which has severely aggravated the shoulder problems.

28. The applicant has explained that on 28 November 2013 he was undertaking an airport security course. He was injured by an instructor during an exercise on the restraint of physically aggressive passengers. This incident occurred after the relevant period had expired.

29. During the relevant period, the left shoulder condition can be assigned an impairment rating of 0 points under Table 2 – Upper Limb Function (“Table 2”). The descriptor for

    
    

    0 points under Table 2 is that there is no functional impact on activities using hands or arms, and that a person can pick up, handle, manipulate and use most objects encountered on a daily basis without difficulty. The applicant informed the SSAT on 26 June 2014 that he was able to pick up light objects weighing 1 to 2 kilograms, complete his own shopping and complete housework tasks. Mr Mangos is of the opinion that prior to the injury on 28 November 2013, the applicant was well enough to undertake most types of work.

    Total impairment rating

30. The applicant does not satisfy s 94(1)(b) of the Act as he has a total impairment rating of 0 points for the impairments that can be assigned an impairment rating.

    CONTINUING  INABILITY TO WORK

31. In view of my finding that the applicant does not satisfy s 94(1)(b) of the Act, I do not need to make a finding about whether, during the relevant period, the applicant can be regarded as having a continuing inability to work as required by s 94(1)(c)(i) of the Act. However, I will make some observations for the benefit of the applicant who made submissions on this issue.

32. I find that the applicant does not have a continuing inability to work as required
    by s 94(1)(c)(i) of the Act.

33. The applicant does not have a severe impairment which is of 20 points or more under a single Impairment Table (see s 94(3B) of the Act). It is therefore necessary for the applicant to have actively participated in a program of support (see s 94(2) and 94(3C) of the Act). The Active Participation Determination provides that a person has actively participated in a program of support if he or she has:

    -      undertaken a program of support for at least 18 months within the 36 months prior to the date of claim;

    -     complied with the requirements of the program; and

    -     provided the Secretary with details of the program of support he or she has undertaken (ss 5(1) and (6)). 

    There is no evidence that any of the exceptions in subsections 5(3) – 5(5) in the

    
    

    Active Participation Determination are relevant.

34. The applicant has taken issue with the contentions of the Secretary that his

    referral history indicates that he was involved in a program of support for a period of only about 5 months. Whilst I accept that the applicant has been involved in a program of support for more than that period, the Active Participation Determination requires that the relevant period of time in which a person has undertaken a program of support be

    
    

    “the 36 months ending immediately before the relevant date of claim” (s 5(1)(a)(ii)).

    
    

    This has the consequence that the involvement of the applicant with a program of support from the date of claim cannot be counted towards the requisite 18 month period.

35. Apart from the requirement for the applicant to have actively participated in a program of support for at least 18 months within the 36 months prior to the date of claim, a person will be taken to have a continuing inability to work if he or she has an impairment which is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years: s 94(2)(a) of the Act. The term “work” is defined by the Act to be work that exists in Australia that is for at least 15 hours a week on wages at or above the relevant minimum wage: s 94(5). I cannot conclude that the applicant had a continuing inability to work in view of the specialist report of

    
    

    Mr Mangos who stated that, prior to the training incident on 28 November 2013, the applicant could undertake “most types of work”.

36. There is no evidence that would enable me to conclude that the applicant’s impairments would prevent him from undertaking a training activity that would enable him to work within the next 2 years (s 94(2)(b)(i)). The applicant has himself detailed the number of training programs that he has undertaken since the date of his claim for DSP. There is no evidence that s 92(2)(b)(ii) of the Act has relevance.

    CONCLUSION

37. The applicant is not entitled to DSP.

38. To his credit, the applicant has been undertaking a number of courses as part of a program of support. I would recommend that the applicant, who has valuable managerial experience, be afforded every assistance to enable him to enter the workforce.

    DECISION

39. I affirm the decision under review.

I certify that the preceding 39
(thirty-nine) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott RFD, Senior Member.

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Associate

Dated 30 March 2015

Date of hearing	9 February 2015
Applicant	In person
Advocate for the Respondent	Department of Human Services