Thomas KALLIDIS and Secretary, Department of Social Services

[2015] AATA 216

[2015] AATA 216

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/2625
Re	Thomas KALLIDIS
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr Ion Alexander, Member
Date	13 April 2015
Place	Sydney

The reviewable decision is affirmed.

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

Dr Ion Alexander, Member

CATCHWORDS

SOCIAL SECURITY – pensions – disability support pension – whether applicant’s conditions were fully diagnosed, treated and stabilised – whether applicant’s impairment is rated 20 points or more under the Impairment Tables – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth)

SECONDARY MATERIALS

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

REASONS FOR DECISION

Dr Ion Alexander, Member

13 April 2015

BACKGROUND

1. On 19 July 2012 Mr Kallidis lodged a claim for Disability Support Pension (DSP) on the basis that his medical conditions were having an impact on his ability to function. The conditions as described in the claim form included “diabetes, hypertension and cholesterol”.

2. Mr Kallidis’ claim was rejected by Centrelink, both initially and on internal review, and subsequently by the Social Security Appeals Tribunal (SSAT) on the basis that he did not have any medical conditions to which an impairment rating could be assigned and therefore he did not satisfy the requirements of s 94 of the Social Security Act 1991 (the Act).

3. In this proceeding Mr Kallidis seeks review of the decision of the SSAT.

4. At the hearing Mr Kallidis was unrepresented but was assisted by an interpreter of the Greek language.

   ISSUES

5. In order to qualify for DSP Mr Kallidis had to satisfy the requirements of s 94 of the Act as at the date of the claim or within 13 weeks of lodging the claim (the claim period), in accordance with the requirements of the Social Security (Administration) Act 1999, that is, between 19 July 2012 and 18 October 2012.

6. It is agreed that Mr Kallidis suffered various medical conditions and therefore satisfies s 94(1)(a) of the Act.

7. The definitive issue in this matter is whether during the claim period Mr Kallidis satisfied section 94(1)(b) of the Act, in particular, whether any of his medical conditions were ‘permanent’ as defined in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination) and whether he had a rating of 20 points under the Impairment Tables contained therein.

   The Evidence

8. In support of his application for DSP, Mr Kallidis relied on a Centrelink Medical Report dated 5 July 2012 provided by his GP, Dr Hanna.

9. In his report, Dr Hanna listed “diabetes” and “polyarthropathy” as medical conditions with the most impact and hypertension, depression and dyslipidaemia as medical conditions that are generally well managed and cause minimal or limited impact.

10. In respect of the diabetes, Dr Hanna notes that the condition is “uncontrolled’ but provides no other meaningful information.

11. Mr Kallidis told the SSAT that his diabetes is now well controlled and he has no significant functional impairment. At the hearing Mr Kallidis confirmed this evidence.

12. Relevantly, Dr Hanna’s clinical records, which were provided to the Tribunal by Mr Kallidis, reveal that Mr Kallidis has suffered diabetes since at least August 2010 but was not compliant with treatment until about August 2012 when he was started on insulin.

13. In respect of the condition “polyarthropathy”, Dr Hanna also provides no useful information.

14. At the SSAT Mr Kallidis denied that he suffered from any arthritis.

15. At the hearing before this Tribunal, Mr Kallidis confirmed that he had no apparent joint problems until after a motor vehicle accident (MVA) on 11 July 2012 just prior to his application for DSP.

16. Mr Kallidis told the SSAT that he had hypertension and depression after the MVA and was also upset after the death of his wife. He said that these conditions are no longer a problem and he does not take any medication. He also told the SSAT that his cholesterol was a bit high about two years ago but is now resolved and he no longer takes any medication.

17. Dr Hanna’s clinical records reveal that Mr Kallidis was being treated for dyslipidaemia with Lipitor since at least August 2010 but there is no evidence that he suffered any impairment because of this condition.

18. The records also reveal that Mr Kallidis was not treated for hypertension until 11 May 2012 and there is no reference to any treatment for depression. There is no evidence of any impairment caused by either of these conditions.

19. At the hearing Mr Kallidis explained that he currently has significant impairment because of cervical and lumbar spinal disease and other musculo-skeletal injuries which he attributes to the first MVA in July 2012 and a second MVA in July 2014.

    CONSIDERATION

20. The Determination stipulates that that an impairment rating can only be assigned to an impairment if the condition causing that impairment is “permanent” (paragraph 6(3)(a)).

21. For the purposes of paragraph 6(3)(a) a condition is permanent if the condition is:

    ·fully diagnosed by an appropriately qualified medical practitioner (paragraph 6(4)(a)), and

    ·fully treated (paragraph 6(4)(b)), and

    ·fully stabilised (paragraph 6(4)(c)).

22. After considering the available evidence I am satisfied that the condition of dyslipidaemia was the only condition during the claim period that was “permanent” within the meaning of the Act. As there is no evidence of any functional impairment caused by this condition the rating under the Impairment Tables would be zero points.

23. Mr Kallidis’ “diabetes” was already fully diagnosed during the claim period but the evidence clearly points to a conclusion that the condition was not fully treated and stabilised, and therefore a rating under the Impairment Tables could not be applied.

24. Mr Kallidis’ “hypertension” appears to have first been diagnosed approximately two months prior to the date of application for DSP.  It is arguable that this condition would have been fully stabilised by  18 October 2012, the end of the claim period. However, even if the condition was fully stabilised there is no evidence that the condition caused any functional impairment and therefore the rating under the Impairment Tables would be zero points.

25. In respect of the condition of “depression” there is no evidence of a formal diagnosis or any treatment, in particular, there is no evidence of a diagnosis made by a psychiatrist or clinical psychologist as stipulated by the introduction to Impairment Table 5 - Mental Health Function.

26. As the condition was not fully diagnosed during the claim period a rating under the Impairment Tables could not be assigned.

27. If follows that during the claim period Mr Kallidis’ combined rating under the Impairment Tables was zero points, which means that he did not satisfy s94(1)(b) of the Act and did not qualify for DSP.

    DECISION

28. The reviewable decision is affirmed.

29.       I certify that the preceding 28 (twenty - eight) paragraphs are a true copy of the reasons for the decision herein of Dr Ion Alexander.

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

Associate

Dated 13 April 2015

Date of hearing	12 January 2015 and 9 March 2015
Applicant	In person
Solicitors for the Respondent	Department of Human Services