Santosh-Kumar Gupta and Secretary, Department of Social Services

[2014] AATA 586

[2014] AATA 586

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/2625
Re	Santosh-Kumar Gupta
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member N A Manetta
Date	22 August 2014
Place	Adelaide

The decision under review is affirmed. 

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

Senior Member N A Manetta

CATCHWORDS

SOCIAL SECURITY - Pensions, benefits and allowances - Disability Support Pension - whether conditions warranted 20 impairment points under one or more tables - continuing inability to work - program of support – whether applicant unable to work for 15 hours per week

LEGISLATION

Social Security Act 1991 (Cth) s 94

CASES

Re Yazdari and Secretary, Department of Social Services [2014] AATA 34

SECONDARY MATERIALS

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

REASONS FOR DECISION

Senior Member N A Manetta

22 August 2014

1. This is an application by Mr Santosh-Kumar Gupta for review of a decision of the Social Security Appeals Tribunal (SSAT) made on 15 May 2013.  The SSAT affirmed an earlier decision made by an authorised review officer (ARO) in the respondent’s department on 5 April 2013 to reject an application for disability support pension (DSP) made by Mr Gupta on 16 July 2012.

2. Hearing the matter afresh on the evidence before me, I must decide whether Mr Gupta has satisfied the prescribed criteria for the DSP.  Mr Gupta represented himself during the hearing.  To assist his understanding of my decision, I shall summarise the relevant regulatory provisions rather than set them out verbatim.  They are contained in the Social Security Act 1991 (the Act) and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination).

   BACKGROUND FACTS

3. I first set out the salient background facts.  Mr Gupta, who was born in 1972, migrated to Australia from India in 2005.  He holds a degree of Bachelor of Engineering, which he completed in India.  His professional calling is civil engineering, and within that discipline he has specialised in road construction.  Upon his arrival in Adelaide, he worked in 2005 on the Port River Expressway Project as an engineer, and then in 2006, with the Murray Bridge Council as a surveyor.  He resigned after one year from this latter position, which he said had proven too hectic. 

4. He then joined the firm FMG Engineering.  He worked full time for this firm for some years until his resignation in 2012.  I note Mr Gupta’s evidence that he had also resigned from FMG Engineering in 2008, but was re-engaged a short time later on a much better salary, some $100,000 per year.  His position at FMG Engineering involved road design for the most part.  It was mainly a desk job, with site visits required only occasionally. 

5. His principal medical condition is narcolepsy.  Narcolepsy may be summarised as a neurological disorder that disturbs sleep patterns.  It often provokes an abnormal, sometimes irresistible, desire to sleep during waking hours; it can affect concentration and memory; and it can produce a generalised lethargy.

6. I accept Mr Gupta has suffered from this condition for many years, and, indeed, since his university days in India.  Mr Gupta gave evidence that he had concentration problems at university there.  He described himself, though, as having a high IQ and a strong reasoning ability.  I accept this self-assessment.  It is evidenced by his success at university and his work history in Australia.  I also accept his evidence that he can sustain concentration when he is interested in the task at hand.

7. He gave evidence that his narcolepsy worsened at FMG Engineering.  It would cause him to forget simple tasks, and he would continually need reminders.  He also gave evidence, to which I shall refer later, that his work was late and sometimes over budget.  Even so, his supervisors, Mr Jeremy Clapp and Mr Steven Clarke, did not raise any performance issues with him before his resignation in 2012.  As noted, after his resignation in 2008, he was re-employed on a higher salary. 

8. In 2012, Mr Gupta sent an e-mail which included his resignation, apparently with effect from 14 June that year.  He said he has no memory of sending the e-mail, but also gave evidence that when he realised he had sent it, he sought to retract it and renegotiate his position within the firm.  His supervisor, Mr Clarke, refused to accept the retraction, however.  The resignation was treated by the firm as effective and final.  His DSP application form is dated 14 July 2012, and it appears it was lodged shortly thereafter.

9. Reference was made in the hearing, somewhat obliquely, to certain proceedings initiated by Mr Gupta in the FairWork Commission relating to the cessation of his employment with FMG Engineering.  These proceedings were not explored in evidence in any detail; but it would appear that Mr Gupta was dissatisfied with FMG Engineering’s decision to refuse to re-employ him, at least on a part-time basis.  He pursued a claim before the Commission to vindicate this view. 

10. Mr Gupta gave evidence of other medical conditions: depression, which he attributes to his narcolepsy, a hand dermatitis, conjunctivitis, osteoarthritis of the knee, problems with his intestines, a sensitivity to touch, and photosensitive acne.  Mr Gupta’s claim centres principally, however, on narcolepsy and depression.  The narcolepsy causes, in his view, extreme concentration problems and poor memory.  His depression aggravates these impairments.

    ELIGIBILITY CRITERIA FOR DSP

11. The DSP eligibility criteria are set out in s 94 of the Act, which must be read in conjunction with the Determination. There are four criteria that are particularly relevant to the assessment of Mr Gupta’s claim. I set them out below.

    Medical conditions that are fully diagnosed, treated, and stabilised

12. First, an applicant must suffer from a medical condition, or conditions, that is, or are, fully diagnosed, treated and stabilised.  If a condition is not fully treated, diagnosed and stabilised, it is not eligible to be considered: see cl 6 (4), (5) and (6) of the Determination.

    Twenty points under the impairment tables where the impairment is independently corroborated

13. Secondly, in respect of the medical conditions eligible to be considered, there must be a consequential impairment, or impairments, giving rise to at least 20 points under a single impairment table, if the program-of-support requirement is to be avoided.[1] The degree of impairment must be independently corroborated before it can be allocated points: see s 94(2)(aa) and (3B) of the Act and the Introduction to each of the relevant tables.

    [1] In addition, I note that an applicant must accumulate an aggregate of 20 points from the Impairment Tables if a single table does not give rise to an impairment rating of 20 points.

    Program of support requirement

14. Thirdly, where there is no impairment attracting a 20-point rating under a single table, an applicant must show active participation in a program of support: see s 94(2)(aa) of the Act.

    Inability to work 15 hours per week

15. Fourthly- and I express the requirement compendiously- an applicant must be unable to work 15 hours per week in any job for which he or she is fit: see s 94(2) and (5) of the Act.

    APPLICATION OF CRITERIA

    Fourth criterion: Inability to work 15 hours per week

16. I shall address this fourth criterion first as it is clearly decisive of Mr Gupta’s application in my opinion. Assuming everything else in his favour, I must be satisfied that at the time of his application for the DSP, which followed approximately one month after his resignation took effect, Mr Gupta was prevented by the impairment (or impairments) caused by his eligible medical conditions from working at least 15 hours per week on wages that are at or above the relevant minimum wage. I am to consider any work in Australia, even work outside the labour market available to him: see s 94(5) (definition of “work”).

17. In my opinion, Mr Gupta does not meet this criterion.  He submitted very strongly that he was unable to continue in his role as an engineer at the time of his resignation from FMG Engineering and that from that time on, he could not work 15 hours a week in any job for which he was qualified.  I am not satisfied, however, that this is, objectively, the case. 

18. I have already referred to Mr Gupta’s evidence that neither of his two supervisors had raised difficulties with his work performance.  He had been employed with the firm for some years, and after his first resignation in 2008, had successfully negotiated re-employment at a higher salary.  He gave no evidence of warnings, or performance discussions, or of any other indication that FMG Engineering was actively reviewing his position.  Moreover, he had not told the firm about his narcolepsy.  I cannot assume, therefore, any leniency in the firm’s treatment of him.

19. Moreover, Mr Gupta gave evidence that he sought to retract his resignation soon after he had e-mailed it.  In my view, this fact is of real significance.  His attempted retraction is not consistent with his submission that he could no longer work for the firm in any capacity. 

20. Mr Gupta did tender a document, albeit late in the hearing, which he submitted proved serious inefficiencies in his work practices.[2]  This exhibit consists of a ten-job schedule e-mailed to Mr Gupta by the Civil Coordinator at FMG Engineering, Ms Raine.  Mr Gupta received the e-mail as the project manager of the ten jobs.[3]  The ten jobs were part of a costing review spreadsheet showing that the firm had lost money on all these jobs to varying degrees.  Other project managers appear to have been e-mailed about their apparent inefficiency in project management.  Ms Raine called for “comment”.

    [2] Exhibit A30.

    [3] With the exception of one job where he was a joint manager.

21. I accept the figures in the table do show that Mr Gupta, as the responsible project manager, spent too much time on many of the jobs and did not, therefore, complete them as efficiently as predicted and quoted to the client.  I also accept his evidence that the inefficiency was a result of his narcolepsy.

22. The spreadsheet does not persuade me, however, that Mr Gupta was unable to work full time, let alone part time for 15 hours a week.  First, it shows that the ten listed jobs were completed and not left unfinished.  Having said that, I accept that the table shows that in six of the ten he was at least 18 percent over budget.  On the other hand, in one task he was only 10 percent over budget and in another two he was only marginally over budget (2 per cent and 1 per cent respectively).       

23. Moreover, the spreadsheet does not purport to be an analysis of Mr Gupta’s overall efficiency. That was not Ms Raine’s stated concern.  She had simply called for “comment” from Mr Gupta in cases where she had identified inefficiency, even in the seemingly trivial range of 1 and 2 per cent.  In addition, I assess her e-mail in conjunction with Mr Gupta’s evidence that at the time of his resignation, his supervisors had expressed no dissatisfaction with his work, and his position was not under threat so far as he was aware. 

24. All in all, I think the spreadsheet shows that Mr Gupta was able to project-manage the listed jobs to conclusion (although in many cases markedly outside the quoted price and therefore inefficiently).  While Ms Raine had called for “comment”, there was no evidence that at the time of his resignation his employer had formed a view that he was unable to discharge his duties effectively. 

25. Even if I were to find that Mr Gupta was not able to continue full time in his role, it would not follow that he would not have been able to perform the same role on a part-time basis of 15 hours per week, or that he would be unable to perform a much less demanding role on that basis.  The prescribed test is stringent.  As I have indicated, it requires that he be unable to work 15 hours work in any job for which he is fit at the minimum award wage, even jobs that are not available to him in his local labour market.  The evidence does not show, in my opinion, that Mr Gupta is unable to work 15 hours a week as, for example, a trainee/assistant engineer or in a much more reduced capacity as, say, a clerk in an engineering firm.  These are examples only of work at lower levels that would be well within his capacity and, of course, well below his qualifications.

26. I also take into account his evidence that he was able to attend at his work place from approximately 9:30 am to 5:30 pm five days a week until his resignation.  I accept that Mr Gupta did have to interrupt his day’s work to take a nap for some 20 minutes or so at least once per day.  That need does not persuade me that that he would be unable to perform work for a total of 15 hours per week.  

27. Finally, Mr Gupta pressed me with a submission that it was unreasonable that he had no-where to take naps and was forced to use a cubicle in the lavatory.  Mr Gupta’s evidence, however, is that he chose not to disclose his narcoleptic condition and chose, therefore, not to seek his employer’s accommodation of his need for rest.  I accept fully his submission that no-one should have to sleep in a cubicle, but I do not find that his employer forced him to sleep there.

28. My finding that this fourth criterion is not satisfied makes it unnecessary to consider other aspects of Mr Gupta’s claim, but as the matter was fully argued, I shall discuss them. 

    First criterion: “fully diagnosed, treated and stabilised” conditions

    Narcolepsy

29. Mr Gupta’s narcolepsy is accepted to be a fully diagnosed, treated and stabilised neurological condition.  His narcolepsy is, therefore, a condition to which I may apply the Impairment Tables. 

    Clinical Depression

30. Mr Gupta asked me to apply the Tables to his depression.  The Determination requires that a condition must be the subject of reasonable treatment before it can be recognised.  A conclusion must be drawn in respect of the condition that any further reasonable treatment is unlikely to result in significant functional improvement in two years.[4] 

    [4] See cl 6(4)(c) and (6)(a) of the Determination.

31. The Determination indicates that an exception applies where significant functional improvement to a level enabling the person to undertake work in the next two years is not expected to result, even if the person undertakes reasonable treatment, or there is a medical or other compelling reason for the person not to undertake reasonable treatment.[5]  I do not think the exception applies here.

    [5] See cl 6(6)(a) of the Determination.

32. I accept that any clinical depression from which Mr Gupta suffers may well have been caused, or at least contributed to, by his narcolepsy.  I find, however, that clinical depression is a condition that is quite distinct from narcolepsy when it appears in narcoleptics.  It is treated in accordance with its own therapeutic and medicinal regimes.  While I accept that lethargy and feelings of flatness accompany many narcoleptics’ experience of life, and are a symptom of the disease, clinical depression does not always accompany narcolepsy; and, of course, clinical depression is not confined to narcoleptics.

33. I am not persuaded that Mr Gupta suffers from a clinical depression that has been fully diagnosed, treated and stabilised.  The respondent referred me to decisions which hold that the question must be answered as at the time of the application for DSP (or in any event within 13 weeks thereafter) and that regard may not be had to the situation as the date of hearing before the Tribunal.[6]  On this test, Mr Gupta clearly fails.  At the time of his application, his depression had not been treated.

    [6] See for example Yazdari v Secretary, Dept of Social Services [2014] AATA 34 @ [35]ff.

34. I note, however, that I am not satisfied that his depression was, as at the date of the hearing, fully diagnosed, treated and stabilised.  He provided a medical certificate from his treating GP, Dr Bhumireddy[7] that showed his symptoms of low mood, anxiety, sleep disturbances, lack of energy and difficulties in concentration have “an uncertain prognosis”.  The certificate is dated 12 February 2014.  She was, as late as that date, only prepared to certify that he would be unfit for work for a period of one month.  This medical certificate does not support a submission that the depression will not respond to treatment. 

    [7] Part of Exhibit A31.

35. The Tribunal also received a letter dated 6 March 2014 from Mr Mehdi Abiyat.[8]  Mr Abiyat is a psychologist, although not a clinical psychologist.  Mr Abiyat indicated that he was writing to the Tribunal in support of Mr Gupta.  He notes that Mr Gupta is troubled with severe depression.  He reports that he has not seen any improvement in his mental health status and that this would be communicated with his treating GP (presumably Dr Bhumireddy) for the provision of “further and appropriate support”.

    [8] Part of Exhibit A31.

36. Mr Abiyat was not called by Mr Gupta to give evidence.  The letter arrived in the Tribunal’s Registry towards the end of the hearing.  Mr Gupta gave evidence that he had recently consulted Mr Abiyat but specifically denied that he had authorised Mr Abiyat to write to the Tribunal in support of his claim.     

37. However the letter came about, it does not contain a clear statement that there is no prospect for improvement in Mr Gupta’s mental health.  To the contrary, the suggestion that Mr Abiyat has not seen improvement in Mr Gupta’s mental health status was, as I have noted, to be communicated to his treating GP “for the provision of further and appropriate support”. 

38. In the circumstances, I do not find that the depression suffered by Mr Gupta, whether caused by narcolepsy or some other life event, qualifies for consideration under the Impairment Tables. 

    Other conditions

39. Mr Gupta also gave evidence to the Tribunal of number of other conditions, to which I have referred at [10]. They have not been the subject of reports that would lead me to conclude that they have had anything other than a minor impact on Mr Gupta’s work capacity. I am prepared to accept they are fully diagnosed, treated and stabilised, but they do not advance Mr Gupta’s claim in any substantial way.

    Second criterion: Twenty impairment points and independent corroboration of the level of impairment

40. I first consider whether narcolepsy, as the only eligible and serious condition, attracts 20 points in its own right.  Some degree of impairment has clearly occurred, and if it attracts 20 points under a single impairment table, Mr Gupta will not need to demonstrate participation in a program of support.  Here I have concluded, first, that a degree of impairment equivalent to 20 points has not been independently corroborated and so I cannot award 20 points, and, secondly, that the evidence does not suggest Mr Gupta’s narcolepsy attracts 20 points in its own right in any event.

41. Any impairment caused by Mr Gupta’s narcolepsy must be corroborated by other evidence: the self-reporting of symptoms is not enough.[9]  In this connection, I note that Mr Gupta has not adduced corroborating evidence sufficient to warrant the application of 20 points under Table 7 in respect of his narcolepsy. 

    [9] See s 26(3) of the Act, cl 4(2)(b) of the Determination and the Introduction to Table 7.

42. It is convenient at this point to refer to Dr Polasek’s evidence, which proved contentious at the hearing.  Dr Polasek, Mr Gupta’s treating neurologist, gave evidence in respect of Mr Gupta’s narcolepsy.  Dr Polasek’s evidence did not support Mr Gupta’s claim. 

43. I accept Mr Gupta’s submission that Dr Polasek’s evidence in the hearing should be largely rejected.  I accept Mr Gupta’s submission that Dr Polasek conducted himself unhelpfully and I accept his further submission that Dr Polasek displayed undue impatience during cross-examination.  Although I accept that Dr Polasek’s expert evidence was of some assistance in explaining narcolepsy in general terms, I have not relied on it to discount Mr Gupta’s claim. 

1. Having said that, I note that the removal of Dr Polasek’s evidence does not provide any corroboration for Mr Gupta’s claim that his condition has had the impact he claims it has had on him.  His evidence is simply left out of consideration. 

2. So far as narcolepsy is concerned, Mr Abiyat, in his short letter,[10] says that Mr Gupta is “reportedly[11] struggling in the areas of memory, awareness and cognitive function which are required for maintaining information and also retaining it.”   He does not commit to a clear view that Mr Gupta’s functioning has in fact been affected, and his statement is quite general. 

   [10] Part of Exhibit A31.

   [11] My emphasis.

3. Quite apart from that, I do not find that Mr Gupta’s level of impairment amounts to 20 points under Table 7 in any event.  I do not believe that the evidence shows that Mr Gupta has severe difficulties and needs frequent (at least once a day) assistance and supervision in at least one of the areas nominated in paragraphs (a) to (j).  I accept that his narcolepsy causes forgetfulness.  I also accept that he has periodic difficulty with concentration and task completion; but I must balance this against the clear evidence that he was able to complete a university degree in India and to work for FMG Engineering in Australia on a full-time basis in a highly skilled position right up to the time of his claim in circumstances where his employer was not aware of his medical condition.  I also take into account his evidence that his concentration is satisfactory even in respect of quite complex tasks when he is interested and focusses.  

4. I add that I did not find his wife’s evidence to be of real assistance and, in any event, she could not speak to his capacity in the work-place.

5. Finally, I note that Table 15 does not assist Mr Gupta.  Twenty points may only be awarded under this table (which concerns, relevantly, altered states of consciousness) if Mr Gupta is unable to attend work for at least 15 hours per week.  I have already decided that I do not accept that is the case.

6. I also would note that I would not award 20 points to the impairment arising from depression, even if it were eligible to be considered as a fully diagnosed, treated and stabilised condition.  I do not think the resultant impairment from this condition has been independently corroborated, and I do not think in any event that 20 points under the relevant table (Table 5) is warranted.  Having regard to my primary finding that the condition is not fully diagnosed, treated, and stabilised, I need state only my conclusions in this regard.

7. Finally, I do not believe any of the other comparatively minor medical conditions referred to at [10] above has produced an independently corroborated impairment that attracts 20 points in its own right.

8. Given the other conclusions I have reached in this case, it is not necessary for me to decide whether Mr Gupta achieves 20 points from different impairment tables in respect of his narcolepsy.  I note the SSAT found that he should be awarded 10 points from each of Table 7 and Table 15.  I did not have the benefit of expert evidence concerning “altered states of consciousness” referred to in Table 15 and I prefer to express no opinion on this question.

   Third criterion: Program of Support

9. As Mr Gupta has not persuaded me that he should receive 20 points under a single impairment table, he must show he has participated in a program of support.  There is no evidence that Mr Gupta has participated in any such program. 

   CONCLUSION

10. It follows from these findings that Mr Gupta fails in a number of ways to qualify for the DSP.  In particular, I find critically:

    (a)Mr Gupta does not have 20 points under a single impairment table;

    (b)Mr Gupta has not participated in a program of support, which is a requirement where there is no impairment attracting 20 points under a single table; and

    (c)Mr Gupta is most probably able to work 15 hours per week (as that test is elaborated in the regulatory requirements).

    DECISION

11. For these reasons, I affirm the decision under review.

    ORDER RESTRICTING PUBLICATION

12. At the end of the hearing, Mr Gupta asked that publication of at least his name, but preferably of my entire decision, be restricted under section 35(2) of the Administrative Appeals Tribunal Act, 1975. 

13. I received submissions on this point from both parties after the hearing. Mr Gupta refers to a litigant’s right to privacy and raises his concern that others who have no legitimate interest in his application might pry into personal aspects of his life. I have decided not to make any order in this regard. The Tribunal’s work is intended to be public. That is the general- although by no means universal- governing principle, and it is explicitly referred to in s 35(3). I do not think Mr Gupta could put his application higher than his own keenly felt desire for privacy. I fully sympathise with this desire, but it does not of itself justify exercise of the power in section 35(2).

I certify that the preceding 56 (fifty -six) paragraphs are a true copy of the reasons for the decision herein of Senior Member N A Manetta

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

Administrative Assistant

Dated 22 August 2014

Date(s) of hearing	3, 4 & 11 February, 7 & 14 March 2014
Applicant	In person
Advocate for the Respondent	Mr A Schatz
Solicitors for the Respondent	Australian Government Solicitor