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

[2017] AATA 1122

Papastergiadis and Secretary, Department of Social Services (Social services second review) [2017] AATA 1122 (17 July 2017)

Division:GENERAL DIVISION

File Number:           2016/4099

Re:Nikolaosj Papastergiadis

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member Anna Burke

Date:17 July 2017

Place:Melbourne

The Tribunal affirms the decision under review.

.......................................[sgd].................................

Member Anna Burke

SOCIAL SECURITY – disability support pension –– whether qualified – lumbar spine disorder fully diagnosed, treated and stabilised – depression not fully diagnosed –Parkinson’s disease not fully diagnosed - whether impairment attracts rating of 20 points or more under impairment tables –– decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 s 37

Social Security (Administration) Act 1999 ss 63, 80, 118(13)

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 ss 6(3)(a), 6(4)

Social Security Act 1991 ss 26, 27(3), 94(1)

REASONS FOR DECISION

Member Anna Burke

17 July 2017

INTRODUCTION

1. Mr Nikolaosj (Nick) Papastergiadis (the Applicant) is seeking a second tier review of the decision made by the Secretary, Department of Social Services (the Respondent) to refuse to grant the Applicant Disability Support Pension (DSP) pursuant to section 94 of the Social Security Act 1991 (the Act).

2. On 15 July 2015 Centrelink found that Mr Papastergiadis was not entitled to DSP as he did not meet the requirements of the Act. Centrelink is the service provider for the Department of Social Services.

3. The application was heard on 10 May 2017. Mr Papastergiadis was self-represented. Mr Joshua Lessing, solicitor in the employ of Sparke Helmore Lawyers, appeared for the Respondent.

   THE ISSUES IN CONTENTION

4. The issues in contention are whether Mr Papastergiadis:

   (a)has a physical, intellectual or psychiatric impairment;

   (b)has a condition which is permanent, meaning that it has been fully diagnosed, treated and stabilised and is likely to continue for at least two years;

   (c)has attracts 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) in respect of his permanent conditions; and

   (d)has a continuing inability to work.

   BACKGROUND

5. Mr Papastergiadis, who is now 61 years of age worked full time for over 20 years as a self-employed cafe owner. He ceased work in 2012 as a result of his deteriorating health.

6. On the 29 May 2015 Mr Papastergiadis made an application for DSP.

7. On the 15 July 2015 Centrelink had a job capacity assessment (JCA) conducted on Mr Papastergiadis. The JCA report found that:

   (a)Based on medical evidence and discussion with Mr Mr Papastergiadis treating doctor Parkinson’s disease is presumptive and not confirmed at this stage, so condition is not considered fully diagnosed, treated and stabilised.

   (b)Mr Papastergiadis’ depression had not been fully treated and stabilised as it had not been verified by a psychiatrist or clinical psychologist;

   (c)Mr Papastergiadis was assessed as having temporary work capacity of 0-7 hours per week, a baseline work capacity of 8 -14 hours per week  and a capacity within two years (with intervention) of 15-22 hours per week.

8. On the 15 July Centrelink wrote to Mr Papastergiadis to inform him that his application for DSP had been refused as he did not have an impairment rating of 20 points or more under the Impairment Tables.

9. On 3 February 2016, on internal review, a departmental Authorised Review Officer (ARO) affirmed the earlier Centrelink decision.

10. On 24 June 2016 the Social Security and Child Support Division of the Tribunal (AAT1) affirmed the decision of the ARO and found:  

    (a)It was unable to find that Mr Papastergiadis depression and anxiety were fully diagnosed treated and stabilised and therefore could not assign an impairment rating.

    (b)That medical information in respect of other conditions Mr Papastergiadis, reported suffering such as: stroke, hearing loss, hip, neck, lumbar spine and shoulder condition was limited and therefore could not determine if they had been fully diagnosed treated and stabilised and therefore could not assign any impairment rating.

    (c)On the medical evidence at the date of claim the diagnosis of Parkinson’ disease was presumptive and not confirmed. Therefore, Parkinson’s disease could not be considered fully diagnosed treated and stabilised and no points were assigned.

    (d)Ischaemic heart disease and type II diabetes were fully diagnosed treated and stabilised but caused minimal or limited impact on function and therefore no points were assigned.

11. On 4 August 2016 Mr Papastergiadis sought a review of the AAT1 decision by this division of the Tribunal. In accordance with Schedule 2, section 4(1) of the Social Security Administration Act 1999, Mr Papastergiadis’ qualification for DSP is to be determined from the date of his claim to a date 13 weeks thereafter, that being 28 August 2015. This means that in order for this review to be successful, he must have qualified for DSP during that period.

    Relevant Legislation and Issues

12. Section 94(1) of the Act provides that a person is qualified for a DSP if:

    (a)the person has a physical, intellectual or psychiatric impairment; and

    (b)the person’s impairment is of 20 points or more under the Impairment Tables; and

    (c)the person has a continuing inability to work as defined by the Act.

13. It is agreed that, at the time of application Mr Papastergiadis suffered from medical impairments arising from depression the neurological condition of Parkinson’s disease, type II diabetes and ischaemic heart disease, that caused impairment and he therefore satisfied section 94(1)(a) of the Act.

14. The Impairment Tables require that an impairment rating can only be assigned if the condition causing that impairment is “permanent”.[1]

    [1] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011; section 6(3)(a).

15. Section 6(4) of the Impairment Tables state that a condition is “permanent” if:

    (a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and

    (b)the condition has been fully treated; and

    (c)the condition has been fully stabilised; and

    (d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.

16. The introduction to each relevant Impairment Table requires that “self-report of symptoms alone is insufficient” and that “there must be corroborating evidence of the person’s impairment”.

17. In addition, the introduction to Table 5 of the Impairment Tables, which is to be used where a person has a permanent condition resulting in functional impairment due to a mental health condition, states that 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)”.

18. The determinative issue in this review is whether, on 29 May 2015 or in the 13 weeks thereafter, Mr Papastergiadis suffered an impairment of 20 points or more under the Impairment Tables and, if so, whether he had a continuing inability to work.

19. The Impairment Tables are function-based rather than diagnosis-based and describe functional activities, abilities, symptoms and limitations. They are designed to enable the assignment of ratings to determine the level of functional impact of impairment and not to assess conditions (see section 5(2) of the Impairment Tables).

20. Section 6(1) of the Impairment Tables sets out that, when assessing functional capacity, a person’s impairment must be assessed on the basis of what a person can, or could do, not on the basis of what a person chooses to do or what others can do for the person.

21. Section 6(8) of the Impairment Tables further provides that the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating can be assigned. In other words, a person may be diagnosed with a condition but, with appropriate treatment, the impairment rating from the condition may not result in any functional impact.

22. It is necessary, therefore, to consider the Applicant’s medical conditions with reference to the applicable Impairment Tables, and assess the functional impact of each upon him in order to determine the appropriate impairment ratings.

    THE TRIBUNAL’S CONSIDERATION AND FINDINGS

    Evidence before the Tribunal

23. The evidence before the Tribunal included two sets of documents provided pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, referred to as the “T documents” and the “Supplementary T documents”, the application for review and an additional medical report tendered at the hearing.

    DOES MR PAPASTERGIADIS HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT?

24. Section 94(1)(a) of the Act provides that to qualify for disability support pension, in the first instance, a person must have a physical, intellectual or psychiatric impairment.

25. The parties accept that Mr Papastergiadis is suffering from depression, the neurological condition of Parkinson’s disease, type II diabetes and ischaemic heart disease. Accordingly, the Tribunal finds that Mr Papastergiadis is suffering from these conditions and meets the requirements of section 94(1)(a) of the Act.

26. As noted above, section 94(1)(b) of the Act states that the second requirement to qualify for disability support pension is that the person’s impairment must attract a rating of 20 points or more under the Impairment Tables.

    DOES MR PAPASTERGIADIS HAVE MEDICAL CONDITIONS THAT CAN BE RATED AT 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES?

    Parkinson’s disease

27. Dr Jacques Joubert, consultant neurologist, provided a medical report dated 20 June 2012 to Mr Papastergiadis, general practitioner, in which he stated:

    “I reviewed Nick today. He has actually done very well in general, following the inpatient treatment of his cervical spine. There is significantly less pain, but still remarkable degree of stiffness and lack of movement around the neck and in the shoulder. I think that this is a combination of osteoarthritis and degeneration of the cervical spine that limits movement, but the shoulders are affected by the bilateral supraspinatus tendinopathy and osteoarthritis….. The tremor that he has in his right upper limb and sometimes left as well is not in my opinion Parkinsonia, and there is no rigidity at present, so I would like to review to revise the diagnosis…. Of course, with the passage of time, I might be proved wrong, but at this point in time there is no rigidity and I do not think that this is Parkinson’s disease.”

28. Dr Young Chern Lee, consultant neurologist, provided a medical report dated 18 March 2014 to Mr Papastergiadis’ general practitioner, in which he stated:

    “you would recall that he has occasional tremor in the hands and right leg. I have known Nick for the last two years and there are no clear pointers towards Parkinson’s disease. The absence of progression of the last two years is reassuring…… There are no other active neurological issues at present.”

29. Dr  Lee  provided a further medical report dated 7 May 2015 to Mr Papastergiadis’ general practitioner, in which he stated:

    ”you would recall that he has intermittent shakes on the right leg as well as generalised slowing. This is confounded by underlying musculoskeletal issues including cervical and lumbar spine disease and right shoulder problem. In addition he is an anxious man and there is underlying depression. On review today he has not changed significantly since I last saw him. In fact I have known him now for three years and his mobility has not deteriorated. The earlier concerns of Parkinson disease is probably less likely as time passes.”

30. The JCA report found that based on the medical evidence and discussions with Mr Papastergiadis treating health professionals the condition of Parkinson’s disease was presumptive and not confirmed at the time of Mr Papastergiadis DSP Claim.

31. Mr Papastergiadis was adamant at the hearing that his Parkinson’s have been confirmed in 2012 by Dr Joubert, this is not borne out in the medical evidence presented to the Tribunal.

32. When Mr Papastergiadis applied for DSP on 29 May 2015 there was no diagnosis of Parkinson’s disease by a qualified medical practitioner. The evidence from all the medical practitioners at this time does not confirm a diagnosis of Parkinson’s disease. Nor is there any evidence of a diagnosis of Parkinson’s disease in the thirteen weeks that follow

33. The respondent took Mr Papastergiadis to the functional impairment tables in respect of Table 2 - Upper Limb Function during the hearing and explored Mr Papastergiadis’ functional impairment. Mr Papastergiadis stated at the hearing that he had great difficulty undertaking many activities of daily living now and in 2015 when he originally applied for DSP. He has severe difficulty handling, moving or carrying most objects because of the tremors experience through Parkinson’s disease. He is unable to use a keyboard, has difficulty using a pen or pencil, but didn’t need help to turn the page of a book, has difficulty doing up buttons or tying shoelaces, and unscrewing the lid on a soft drink bottle. He advised the hearing that he relies upon his daughter and his doctor greatly and they would have assisted in filling in the applications for the Tribunal’s appeals process.

34. The respondent then took Mr Papastergiadis to the functional impairment tables in respect of Table 3 - Lower Limb Function during the hearing and explored Mr Papastergiadis’ functional impairment. Mr Papastergiadis stated at the hearing that he has a great deal of difficulty stabilising himself and therefore finds walking and standing very difficult. He does not use public transport as he is terrified that he will be knocked off balance and will be unable to get up. Mr Papastergiadis was adamant that his condition had been deteriorating rapidly since 2012, that his Parkinson’s disease is causing extreme tremors which was leading to a lack of endurance, balance and ability to manage his daily living activities.

35. Whilst the Tribunal found that Mr Papastergiadis  was a credible witness and did not doubt his veracity during the hearing, his self-reporting of his symptoms is simply not borne out by the medical evidence at the time of his DSP claim, or in the thirteen weeks that followed. His Parkinson’s disease therefore cannot be said to have been ‘fully diagnosed’ during the relevant period.

    Depression

36. During his JCA assessment on 7 July 2015 Mr Papastergiadis reported that he was suffering from depression and anxiety as a result of his health condition. He reported the following symptoms low mood, feeling useless, feels like is a burden, disturbed sleep, reduce memory and concentration, fatigue and stumbling for words.

37. Dr William Lee, neurologist, in a medical report dated 12 July 2016 that Mr Papastergiadis was suffering from anxiety and mild depression.

38. In order to attract an impairment rating Under Table 5 – Mental Health Function, the diagnosis of a condition must be by either a clinical psychologist or psychiatrist. As there is no evidence before the Tribunal of Mr Papastergiadis’ condition being diagnosed by either a clinical psychologist or psychiatrist, there cannot be an impairment rating assigned.

    Other conditions

39. Dr Adrian Tang, general practitioner, in Mr Papastergiadis medical report for the DSP application of the 2 June 2015 reported the conditions of type II diabetes and ischaemic heart disease were generally well managed and caused minimal or limited impact on his ability to function. As a result these conditions attract zero impairment points under the impairment tables.

    DOES MR PAPASTERGIADIS HAVE A CONTINUING INABILITY TO WORK?

40. To qualify for the DSP Mr Papastergiadis must not only satisfy the requirement that he has impairments attracting a rating of 20 points or more. He must also establish that he has a continuing inability to work, or be participating in the program administered by the Commonwealth known as the supported wage system, as set out in s 94(1)(c) of the Act.

41. A continuing inability to work requires that Mr Papastergiadis’ impairment would prevent him from doing any work independently of a program of support within the next two years, and prevent him from undertaking a training activity in the next two years, if a training activity was likely to enable him to do work independently of a program of support. It also requires Mr Papastergiadis to have actively participated in a program of support within the meaning of section 94(3C) of the Act prior to his claim for DSP unless he can establish he has a severe impairment, meaning one that attracts a rating of 20 points or more under one table of the Impairment Tables.

42. Mr Papastergiadis has not completed a program of support with Disability Employment Services. He therefore cannot be said to have actively participated in a program of support, and as such does not satisfy the requirements of the Act in relation to a continuing inability to work.

    CONCLUSION

43. Having carefully considered all the evidence before the Tribunal, I find that at the time of his original DSP application of 29 May 2015 Mr Papastergiadis’ condition of Parkinson’s disease was not conclusively diagnosed by an appropriately qualified medical practitioner, his mental health condition had not been diagnosed by a clinical psychologist or psychiatrist and that his other medical conditions were generally well managed and causing limited impact on his ability to function. Therefore no points could be awarded under the impairment tables.

44. As such Mr, Papastergiadis did not meet the required 20 points to satisfy section 94(1)(b) of the Act. Mr Papastergiadis further could not be said to have completed a program of support in accordance with section 94(3C) of the Act, and as such cannot be found to have a continuing inability to work.

    DECISION

45. The Tribunal affirms the decision under review.

I certify that the preceding 45 (forty-five) paragraphs are a true copy of the reasons for the decision herein of Member Anna Burke

......................................[sgd]..................................

Associate

Dated: 17 July 2017

Date of hearing:	10 May 2017
Applicant:	In person
Advocate for the Respondent:	Mr Joshua Lessing
Solicitors for the Respondent:	Sparke Helmore Lawyers