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

Vasiliou and Secretary, Department of Social Services (Social services second review) [2020] AATA 962 (24 April 2020)
Division:                  GENERAL DIVISION
File Number:          2018/6439
Re:Peter Vasiliou
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member K. Parker
Date:24 April 2020
Place:Melbourne

The Tribunal affirms the decision under review.
............[sgd]..........................................................
Member K. Parker
Catchwords
SOCIAL SECURITY – claim for disability support pension – applicant has multiple physical and psychiatric medical conditions – whether conditions were permanent as at the qualification period – whether conditions were fully diagnosed, treated and stabilised and likely to persist for more than two years – assessment of impairment rating under Impairment Tables in respect of functional impacts arising from permanent conditions – whether continuing inability to work – whether program of support requirements were met – eligibility requirements not met – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), ss 37
Social Security Act 1991 (Cth), ss 23, 26, 94
Social Security (Administration) Act 1999 (Cth), s 196
Cases
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Secretary, Department of Employment & Workplace Relations v Harris [2007] FCAFC 130 Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286
Secondary Materials
Social Security (Active Participation for Disability Support Pension) Determination 2014
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Member K. Parker
24 April 2020
INTRODUCTION

The Applicant, Mr Peter Vasiliou, is a 55-year-old man who suffers from multiple long-standing physical and mental health conditions.
On 16 May 2017 Mr Vasiliou made a claim to receive the disability support pension (DSP) under the Social Security Act 1991 (Cth) (the Act).[1]
[1] Refer T-Documents T48/177 showing Centrelink record of contact made by Mr Vasiliou on 16 May 2017 regarding a claim for DSP and refer DSP claim form at T-Documents T20.
On 21 September 2017 Centrelink decided to reject the claim.[2] Mr Vasiliou sought review by an Authorised Review Officer of Centrelink (ARO). On 27 July 2018 the ARO affirmed Centrelink’s decision.[3]
[2] Refer T-Documents T27.
[3] Refer T-Documents T40.
Mr Vasiliou sought review of the ARO’s decision by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1). On 2 October 2018 the AAT1 affirmed the ARO’s decision (decision under review).
On 5 November 2018 Mr Vasiliou sought review of the decision under review by the General Division of the Administrative Appeals Tribunal (this Tribunal).
On 11 December 2018, the Secretary, Department of Social Services (the Secretary) lodged a set of documents pursuant to its obligations under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (T-Documents) comprising 193 pages. On 2 September 2019 the Secretary lodged a supplementary set of documents (ST-Documents) comprising 767 pages.
The hearing of this application commenced on 19 September 2019. It was adjourned part-heard because Mr Vasiliou, who was self-represented, had forgotten to bring his heart medication with him to the hearing. The adjournment also provided Mr Vasiliou with a further opportunity to review the voluminous ST-Documents and the Secretary with an opportunity to review the additional documents Mr Vasiliou produced at the hearing as mentioned in paragraph [8] below. The hearing resumed on 6 November 2019 and concluded on that day.
At the hearing Mr Vasiliou tendered:
(a)a set of documents comprising medical records and reports which he had lodged with the Tribunal in April 2019;[4]
[4] Refer Exhibit “A2”.
(b)a further set of medical documents which included:[5]
[5] Refer Exhibit “A1”.
(i)documents from the Alfred Hospital;
(ii)a referral for a colonoscopy dated 16 July 2019;
(iii)results for radiology performed on his right fingers dated 18 July 2019; and
(iv)a medical discharge summary dated 1 August 2019;
(c)a medical report by Dr Gouras dated 30 August 2019 attaching:[6]
(i)an X-ray report dated 8 June 2017 and
(ii)an MRI scan dated 23 June 2107.
[6] Refer Exhibit “A3”.
At the hearing, the Secretary’s representative tendered:
(a)a set of 16 YouTube videos featuring footage of Mr Vasiliou undertaking certain activities (those clips were lodged with the Tribunal two days before the first day of the hearing);[7] and
(b)a letter dated 5 July 2019 from Sparke Helmore to Dr A. Gouras, treating general practitioner, attaching a notice issued under s 196 of the Social Security (Administration) Act 1999.[8]
[7] Refer Exhibit “R1”.
[8] Refer Exhibit “R2”.
On 30 August 2019 the Secretary lodged with the Tribunal a Statement of Issues, Facts and Contentions (Secretary’s Submissions). After the hearing was concluded, Mr Vasiliou sought leave (which was granted) to lodge further medical evidence. On 11 November 2019, he lodged a set of medical evidence with the Tribunal and a recent medical report dated 20 November 2019 by his treating general practitioner, Dr Gouras.
The Secretary lodged a Supplementary Statement of Issues, Facts and Contentions dated 3 December 2019 (Secretary’s Supplementary Submissions).
The Tribunal has taken into account all of the documentary evidence lodged by both parties before, during and after the hearing of this application, the Secretary’s Submissions and Supplementary Submissions, a Job Capacity Assessment (JCA) Report dated 24 August 2017, an Assessment Services Recommendation for DSP Medical Eligibility (ASR) dated 24 May 2017; and a DSP Medical Assessment Recommendation (MAR) dated 29 June 2018. The Tribunal has also considered the oral submissions made by Mr Vasiliou, and the Secretary’s representative at the hearing of this application. The Tribunal has considered the further medical evidence lodged with the Tribunal by Mr Vasiliou since the conclusion of the hearing, the last of which was a psychiatric assessment performed by Rebecca Bond at Alfred Health on 17 June 2019 which was lodged with the Tribunal on 23 April 2020. The Tribunal has also considered a further submission made by the Secretary’s representative on 24 April 2020 in relation to the medical report of Dr Mulligan dated 22 April 2020 as lodged by Mr Vasiliou on 23 April 2020.
For the reasons outlined in these Reasons for Decision, the Tribunal has decided to affirm the decision under review.
LEGISLATIVE FRAMEWORK
A claim for DSP must be assessed by reference to a specific time period. This is known as the qualification period and it runs for a period of 13 weeks commencing on the day the person lodged their claim for DSP with Centrelink. In Mr Vasiliou’s case, the relevant qualification period extends from 16 May 2017 (the date that Mr Vasiliou made his claim for DSP)[9] for a period of 13 weeks ending on 15 August 2017 (Qualification Period).
[9] Refer T-Documents T48/177.
Section 94 of the Act sets out the qualification requirements for the DSP as follows (as relevant to this application):
(1)A person is qualified for disability support pension 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)one of the following applies:
(i)the person has a continuing inability to work;
(ii)the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and…
…
Note 2:     For Impairment Tables see subsection 23(1) and sections 26 and 27.
…
(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa)in a case where the person's impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support--the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a)in all cases--the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b)in all cases--either:
(i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii)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 program of support within the next 2 years.
Note:    For work see subsection (5).
(3)In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a)the availability to the person of a training activity; or
(b)the availability to the person of work in the person's locally accessible labour market.
(3A)…
Severe impairment
(3B)A person's impairment is 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.
Active participation in a program of support
(3C)A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.
(3D)The Secretary must comply with any guidelines in force under subsection (3E) in deciding whether the Secretary is satisfied as mentioned in paragraph (2)(aa).
(3E)The Minister may, by legislative instrument, make guidelines for the purposes of subsection (3D).
Doing work independently of a program of support
(4)A person is treated as doing work independently of a program of support if the Secretary is satisfied that to do the work the person:
(a)is unlikely to need a program of support; or
(b)is likely to need a program of support provided occasionally; or
(c)is likely to need a program of support that is not ongoing.
Other definitions
(5)In this section:
program of support means a program that:
(a)is designed to assist persons to prepare for, find or maintain work; and
(b)either:
(i)is funded (wholly or partly) by the Commonwealth; or(ii)      is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.
…
training activity means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments;
(a)      education;
(b)      pre-vocational training;
(c)      vocational training;
(d)      vocational rehabilitation;
(e)      work-related training (including on-the-job training).
work means work:
(a) that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
(b) that exists in Australia, even if not within the person’s locally accessible labour market.
‘Impairment Tables’ are defined in s 23 of the Act to mean the tables determined by an instrument under s 26(1). The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Determination) prescribes a set of tables for assessing the degree of impairment caused by a permanent condition or conditions more likely than not to persist for more than two years (Impairment Tables). The Impairment Tables assign ratings to determine the level of the functional impact.
“Impairment” is defined in s 3 of the Determination to mean:
A loss of functional capacity affecting a person’s ability to work that results from the person’s condition.
The following subsections of s 6 of the Determination are relevant to the assessment of impairment ratings:
Impairment ratings
(3)An impairment rating can only be assigned to an impairment if:
(a)the person’s condition causing that impairment is permanent; and
Note:   For permanent see subsection 6(4).
(b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Example: A condition may last for more than 2 years, but the impairment resulting from that condition may be assessed as likely to improve or cease within 2 years – if this is the case, an impairment rating under the Tables cannot be assigned to the impairment.
Permanency of conditions
(4)For the purposes of paragraph 6(3)(a) 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
Note:    For fully diagnosed and fully treated see subsection 6(5).
(c)the condition has been fully stabilised; and
Note:    For fully stabilised see subsection 6(6).
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Fully diagnosed and fully treated
(5)In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
Fully stabilised
(6)For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(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.
Note:    For reasonable treatment see subsection 6(7)
Reasonable treatment
(7) For the purposes of subsection 6(6), reasonable treatment is treatment that:
(a) is available at a location reasonably accessible to the person; and
(b) is at a reasonable cost; and
(c) can reliably be expected to result in a substantial improvement in functional capacity; and
(d) is regularly undertaken or performed; and
(e) has a high success rate; and
(f) carries a low risk to the person.
Subsection 6(1) in Part 2 of the Determination provides that the impairment of a person must be assessed based on what they can, or could do, not based on what the person chooses to do or what others do for the person. Subsection 6(2) also provides that the person’s medical history in relation to the condition causing the impairment must be considered before applying the tables to a person’s impairment.
Further, subsection 11(3) of Part 2 of the Determination provides that a descriptor applies when the person can do the activity normally, on a repetitive or habitual basis (i.e. they are generally able to do that activity whenever they attempt it) and not only once or rarely. Subsection 11(4) provides that when assessing impairments caused by conditions that have stabilised as episodic or fluctuating, a rating must be assigned which reflects the overall functional impact of those impairments; considering the severity, duration and frequency of the episodes or fluctuations as appropriate.
ISSUES
The issues to be determined, as at the time of the Qualification Period, are:
(a)whether Mr Vasiliou had any physical, intellectual, or psychiatric impairments;
(b)whether the conditions causing those impairments were permanent (requiring an assessment of whether they were fully diagnosed, treated, and stabilised, and were more likely than not to persist for more than two years);
(c)if so, whether those impairments, together or separately, attracted a rating of 20 points or more under the Impairment Tables;
(d)if so, whether Mr Vasiliou had a continuing inability to work; and
(e)unless the Tribunal finds that Mr Vasiliou had a severe impairment (i.e. an impairment which attracted a rating of 20 or more points under any one table), whether he had satisfied the program of support requirements.
EVIDENCE BEFORE THE TRIBUNAL
Information provided by Mr Vasiliou on the DSP claim form
On the DSP claim form, Mr Vasiliou listed his “disabilities, illnesses or injuries” as follows:[10]
(a)“Heart condition”;
(b)“Both hands & wrist”;
(c)“Fracture neck”;
(d)“Lower back”; and
(e)“Both shoulders”.
[10] Refer T-Documents PT20/86.
On the claim form, Mr Vasiliou indicated that his disabilities, illnesses or injuries made it difficult for him to care for himself.[11] He listed his current treatment as “physiotherapy; chiro; also need wrist replacement operation” and indicated that he was expecting to have the wrist replacement operation in the future.[12] Mr Vasiliou stated on the claim form that he had ongoing issues and inflammation with his medical conditions which affected his ability to work.[13] He stated that he had completed Year 11 and did not hold any qualifications.[14]
[11] Refer T-Documents T20/99.
[12] Refer T-Documents T20/86.
[13] Ibid.
[14] Ibid and refer also T-Documents T20/87.
Mr Vasiliou stated on the claim form that he worked for Ballantynes (a confectionary company) from April 1987 to November 1989. When asked on the form whether he had participated in any programs in the previous three years, to help him find work, stay in a job, return to work, manage his injury or help him with vocational rehabilitation, gaining new skills, work experience or training, Mr Vasiliou indicated that he had not done so.[15] When asked on the form when he thought he could do any activities that would help him prepare for work, Mr Vasiliou ticked the “not sure” box.[16]
Medical evidence
[15] Refer T-Documents T20/87.
[16] Ibid.
Assessment Services Recommendation (ASR) dated 24 May 2017
Shortly following the commencement of the Qualification Period (i.e. on 24 May 2017), an occupational therapist undertook a medial eligibility assessment in respect of Mr Vasiliou.[17] The assessor indicated that the conditions assessed were coronary artery disease, heart failure, cervical spondylosis and depression. The assessor did not consider it necessary to contact Mr Vasiliou or his treating health practitioner, nor did the assessor consider it necessary to consult with the Health Professional Advisory Unit.
[17] Refer T-Documents T21/102.
The assessor noted from the medical evidence that Mr Vasiliou had been admitted to hospital; had surgery at The Alfred; and had seen numerous specialists. The assessor stated in his ASR as follows:
Dr Gouras [general practitioner] noted Mr Vasiliou has not been able to resume any work over past 20 years, he has had work related injuries to his wrists requiring surgeries. He noted Mr Vasiliou is taking medication for heart failure, peptic ulcer, hypertension, osteoarthritis and very high cholesterol. Dr Gouras noted ongoing symptoms and functional impairment.

The assessor recommended that a job capacity assessment be conducted to assess of Mr Vasiliou’s functional impairment and work capacity.
Dr Steven Kalfas, general practitioner (Healthcare Carnegie)
Dr Kalfas, general practitioner, issued a medical report dated 2 December 2003 providing a detailed summary of Mr Vasiliou’s medical history.[18] This report referred to Mr Vasiliou having sustained multiple injuries in a workplace accident in 1988 when he was using a hand-operated forklift to move a loaded pallet. It was reported that his right wrist and hand were crushed between the handle of the forklift and the metal edge of a door and the pallet slipped from its position trapping his right ankle and foot. Mr Vasiliou was unsuccessful in two attempts to return to work and it was recorded in this report that his employment was terminated in 1989.
[18] Refer T-Documents T7.
Dr Kalfas reported that:[19]
(a)Mr Vasiliou underwent two operations to his right wrist and that a third operation was proposed. An arthroscope was performed on his right elbow, right shoulder and right ankle;
(b)a further arthroscope was performed in 1994 and Mr Vasiliou’s anterior talofibular ligament was trimmed back to address an impingement problem affecting his right ankle;
(c)a further arthroscope was performed on Mr Vasiliou’s right elbow in mid-1995 during which a small loose chondral fragment was removed; and
(d)a further arthroscope was performed on his right shoulder during which an anterosuperior labral tear identified was trimmed back.
[19] Refer T-Documents T7/35.
Dr Kalfas reported that when Mr Vasiliou first saw him (which was in 1996), he had pain and stiffness “mainly affecting his right wrist, but also present in the right elbow, shoulder and ankle”.[20] The doctor described Mr Vasiliou as having an “imperfect left forearm since a motorcar accident in his younger years mangled it and led to several reconstructive operations”.[21]
[20] Refer T-Documents T7/35.
[21] Ibid.
Regarding Mr Vasiliou’s mental state, Dr Kalfas made the following observation in his 2003 report:[22]
The patient’s clinical presentation in 1996 was such that I felt he was suffering from significant post-traumatic anxiety and depression. Indeed upon exploration of his psyche, it was confirmed that he was suffering from insomnia, irritability, inability to relax and cope with frustration, poor concentration and memory, tremulousness and poor confidence. I supplied him with the long overdue referral to psychiatrist, Dr M.V. Piperoglou, who confirmed my diagnosis and felt he needed supportive psychotherapy.
[22] Ibid.
Dr Kalfas reported that Mr S. Bell, orthopaedic surgeon, provided an opinion in November 1996 (following further complaints of symptoms affecting Mr Vasiliou’s right wrist, elbow and shoulder), that Mr Vasiliou had a “chronic soft tissue pain problem affecting the whole upper extremity including the scapula and base of neck”.[23]
[23] Refer T-Documents T7/36.
Dr Kalfas reported that Mr Vasiliou had made complaints in 1997 about pain in the entire right leg and right buttock. A CT scan of his lumbosacral spine was performed, and it revealed a medium-sized broad based posterior L5/S1 disc prolapse displacing the right S1 nerve root. It was reported that the right-sided sciatica settled with conservative treatment.[24]
[24] Ibid.
In August 1999 Mr W. Edwards, orthopaedic surgeon, reached a view that Mr Vasiliou had progressive pronation deformity of the hind foot which was causing sinus tarsi syndrome and possibly a tibial neuritis and orthotics were recommended.[25]
[25] Refer T-Documents T7/37.
Dr Kalfas referred to a bone scan having been performed of Mr Vasiliou’s right ankle and foot which was reported as normal.[26]
[26] Ibid.
Dr Kalfas opined in his 2003 report that the industrial prognosis for Mr Vasiliou remained of “very limited, if any, employability”.[27]
[27] Ibid.
Dr Kalfas reported that an EMG had been performed on Mr Vasiliou in February 1998 which was “normal in outcome” and that a follow up CT scan of his right wrist reported that there was an incomplete incorporation of the bone graft into the capitate and base of Mr Vasiliou’s third metacarpal. In July 1998 Mr A. Berger, hand surgeon, performed a “sound arthrodesis having obtained bone to graft” from Mr Vasiliou’s left iliac crest.[28]
[28] Ibid.
Dr Kalfas reported that Mr Vasiliou had “acupuncture, magnetic field therapy and remedial massage” in 1999 in his quest to rid himself of the chronic multisite pain in his right wrist, right shoulder and right elbow.[29]
[29] Ibid.
In mid-2000, Mr Vasiliou was reported to have been troubled by neck, upper dorsal and right shoulder pain and he was referred to Mr C. Mills, orthopaedic surgeon. Mr Mills recommended that Mr Vasiliou undergo a retraining program to strengthen his shoulder. He started attending a pool and gymnasium and took medication to improve the muscle bulk of his right shoulder girdle.
Dr Kalfas reported that in August 2001, Dr D. Vivian recommended that Mr Vasiliou attend a pain management program due to continued symptoms of pain. It was noted that he was unable to attend such a program at that time due to his responsibilities as a carer of his late mother who was afflicted by advance diabetes causing blindness. Dr Kalfas stated that he did not agree that Mr Vasiliou had only a “soft tissue origin” pain.
Dr Kalfas reported that Mr Vasiliou was still under the psychiatric care of Dr Piperoglou in 2001 who had prescribed Zyprexa to him.
Dr Kalfas reported that an MRI scan on Mr Vasiliou’s cervical spine on 23 October 2002 had demonstrated C5 nerve root compression on the right due to disc protrusion and osteophyte encroachment. Mr Vasiliou was advised to avoid chiropractic manipulation.
Mr C. Xenos, neurosurgeon, in February 2003 advised against surgery and recommended continued physiotherapy and gym to keep his shoulder girdle and upper limbs as active as possible. Dr Kalfas recommended that he should undertake hydrotherapy, acupuncture and massage and “skilled counselling in the hope that his preoccupation with becoming crippled is reduced”.[30]
[30] Refer T-Documents T7/39.
In this report, Dr Kalfas summarised Mr Vasiliou’s situation as follows:
With so many years after original injury, in a young person at that, and after so many surgical interventions, he still experiences pain and stiffness in the right wrist, right shoulder, neck lower back, and right ankle, with investigations at these sites at different times over the years revealing that each and every site has been affected by pathology which is not merely soft tissue. Nonetheless, he does also manifest the “muscle knots”, as he calls them, of fibromyalgia. This poorly educated young man, suited only to unskilled duties pre-injury, has too many bodily weaknesses to be fit for work now and into the foreseeable future.
Dr Kalfas stated that Mr Vasiliou had seen a vascular physician more recently who had indicated that a sympathetic component to his pain syndrome may be present and offered a trial of sympathetic blockade (phentolamine infusion) which Mr Vasiliou is reported as having not taken up.
Dr A. Gouras, treating general practitioner
The Tribunal has been provided with various medical reports issued by Dr Gouras dated 21 December 2006, 14 December 2016, 9 July 2018, 25 September 2018 and 12 August 2019.
In the 2006 report, Dr Gouras stated that Mr Vasiliou had been under regular medical treatment and follow-up for 20 years due to persisting and frequent aggravations of symptoms of pain in his right leg; pain and stiffness in his right ankle; right foot, right upper limb (shoulder, arm and elbow joint), right forearm, right wrist and right hand. He was also reported as having recurrent swelling with numbness in his right fingers and fluctuating pain in his lower back.[31]
[31] Refer T-Documents T9/42.
Dr Gouras described Mr Vasiliou as having developed symptoms of post-traumatic anxiety and depression which had “further complicated his recovery and progress”. He recommended that Mr Vasiliou continued the “physical and chiropractic” treatment.[32]
[32] Refer T-Documents T9/43.
Dr Gouras’s letter dated 20 November 2019 summarised Mr Vasiliou’s medical conditions as follows:
The patient has requested me to send to your tribunal some further information with regards to his incapacities, prior to 2017.
As I have stated previously, this patient has undergone multiple operations with regards to his symptoms of arthritic pain.
Over the past thirty years, he has developed a severe reaction to his physical symptoms, and he has developed also a multiple of symptoms of widespread pains (fibromyalgiae) and depression.
Despite treatment, his severe anxiety and depression has not improved over the years.
I don’t believe that he will ever be able to cope with any employment as a result of his physical and mental symptoms.
Dr Stephen Stern, Consultant Psychiatrist
Dr Stern undertook a psychiatric assessment of Mr Vasiliou at the request of Workers’ Compensation Victoria Pty Ltd and issued two reports dated 14 October 2010[33] and 6 January 2011.[34]
[33] Refer T-Documents T11.
[34] Refer T-Documents T13.
In the October 2010 report Dr Stern recorded that Mr Vasiliou had given a history that he had seen a psychiatrist, Dr Michael Piperoglou, for about ten years and stopped seeing him ten years’ prior. This report also stated that Mr Vasiliou had stopped taking anti-depressant medication in 2003. The history given referred to Mr Vasiliou having seen a psychiatrist once or twice after suffering anxiety and depression after a motor vehicle accident in 1983 and that he was prescribed anti-depressant medication but did not take it.
Mr Vasiliou disclosed to Dr Stern that his interests included gardening and keeping birds. Dr Stern recorded that Mr Vasiliou was one of nine children and that three of his brothers had suffered from schizophrenia.
Dr Stern diagnosed Mr Vasiliou with “chronic adjustment disorder with mixed anxiety and depressed mood” and that his condition was stabilised. Dr Stern stated that he would probably benefit from long term anti-depressant medication which might improve his depression, but which was not expected to assist in respect of his present level of activities of daily living. Dr Stern opined:[35]
From a psychiatric aspect alone (not including his physical symptoms) he is fit for work including his pre-injury duties or alternative suitable duties.
[35] Refer T-Documents T11/49.
Dr Danny Sullivan, consultant forensic psychiatrist
The Secretary has sought to rely upon the medical opinion of Dr Sullivan dated
[36] Refer Supplementary Documents ST1.
28 February 2017.[36] Notably Dr Sullivan’s report was obtained at the request of Mr Vasiliou’s lawyers in respect of proceedings that had been instituted seeking to remove Mr Vasiliou as the executor of his late mother’s will, and should be viewed in that context. At the hearing before this Tribunal, Mr Vasiliou said the State Trustees had “forced him” to obtain this report by Dr Sullivan.
Dr Sullivan is a consultant forensic psychiatrist and an Honorary Senior Fellow of the University of Melbourne and Assistant Clinical Director of the Victorian Institute of Forensic Mental Health.[37]
[37] Refer Supplementary T-Documents ST1/7.
Dr Sullivan had recorded the following psychiatric history for Mr Vasiliou in his February 2017 report:[38]
[39]Mr Vasiliou denied ever having seen psychiatrists for treatment but had consulted independent medical examiners due to Workers’ Compensation claims. He was unclear if he had seen psychologists in the past but thought that he may have had some counselling to assist with stress related to WorkCover claims.
[40]He acknowledged some mild symptoms of depression, and significant anxiety at times when feeling overwhelmed with many burdens placed upon him.
[41]There was no history of psychotic illness such as auditory hallucinations or delusions. There was no history of significant head injury or cognitive impairment. He denied having been suicidal or having harmed himself.
[42]Mr Vasiliou reported once at least having been prescribed antidepressants for four to eight weeks but did not feel that these benefited and ceased these. He had been prescribed nitrazepam (Mogadon, a benzodiazepine) as a sleeping tablet but denied any significant use of prescription benzodiazepines or other analgesics.
[38] Refer Supplementary T-Documents ST1/5.
Dr Sullivan stated that Mr Vasiliou had reported features of mood disorder which had been intermittently relevant and at various times had encompassed features of anxiety, depression and possibly, obsessive-compulsive personality disorder (OCD). However, Dr Sullivan stated it was not clear to him that those features had ever reached the threshold for a clinical diagnosis.[39] Dr Sullivan stated that he did not consider that Mr Vasiliou would meet the diagnostic threshold for an overt personality disorder even though he appeared to have some maladaptive personality traits of avoidant personality disorder or OCD.[40]
[39] Refer Supplementary T-Documents ST1/6.
[40] Refer Supplementary T-Documents ST1/7.
Dr Sullivan also opined as follows:
[54]There is a strong sense of preoccupation with physical health problems, based in real events but possibly exacerbating his anxiety about health concerns. However, there is insufficient information to suggest that this would qualify as a somatoform disorder.
[55]He has no previous contact with mental health services, and no reported or obvious concerns with substance use. There is no indication of cognitive impairment or psychotic illness.
[56]Mr Vasiliou appreciates the task of executor at a rational level. However, he is unable to manage the emotional demands of the task. Thinking about selling his family home is associated with rapidly escalating distress, about the care of his pets and his brother, his own lack of financial liquidity, and the items he has collected in his home over many years, and about which he is very proud. This distress paralyses him and prevents him from acting as he must do, as an executor.
[57]Mr Vasiliou’s mental state is not one of severe mental illness or cognitive impairment. However, he has limited adaptive coping skills and does not appear to have capacity to manage the tasks of being executor of his mothers’ will. He is unable to separate his own interests from the task, and his thinking becomes progressively distressed and disorganised when under this pressure.
[58]His is not a disorder of understanding but of will. I am satisfied that this is founded in his personality structure and not in mental illness. I do not consider that it is remediable through mental health services, such as medication, psychological treatment or other intervention.
[59] I consider that Mr Vasiliou would benefit from appointment of a litigation guardian to assist him to manage the role of executor of his mother’s will.
Dr Michael Piperoglou, treating psychiatrist
At the hearing, Mr Vasiliou said that he saw Dr Piperoglou every month or two months for a period of about ten years and that those visits were funded by Workcover. Mr Vasiliou said that Dr Piperoglou had recommended that he take Prozac. Mr Vasiliou said he took it for two to three months. He said that he had told Dr Piperoglou that he did not have schizophrenia and that it was “just the things he had to deal with”. He said that Dr Piperoglou had not diagnosed him with schizophrenia but had told him that he could have a type of schizophrenia. Mr Vasiliou told the Tribunal that he had also taken Serapax (containing the active ingredient oxazepam, a benzodiazepine, used for anxiety and sleeping disorders) for a “month or something” but “it was making me forget”.
Dr Piperoglou issued a medical report dated 12 July 1996, based on his assessment of Mr Vasiliou on three occasions between 17 April 1996 and this date.[41] At this time, Dr Piperoglou stated the following about the mental state examination of Mr Vasiliou:[42]
Mr Vasiliou presented as a highly anxious man with pressured speech who was somewhat depressed with a low self-esteem. He had obsessional tendencies to his speech and tended to be rather pedantic and overinclusive. His attention and concentration was somewhat variable and worsened as the interview proceeded. There was no evidence of delusions, hallucinations or thought disorder.
[41] Refer Supplementary T-documents ST9.
[42] Refer Supplementary T-Documents ST9/72.
Dr Piperoglou opined that from a psychiatric perspective, Mr Vasiliou had a mixed anxiety/depressive reaction secondary to all the stress he had been through due to his injury. Dr Piperoglou stated there was a positive family history of schizophrenia but there was no overt evidence of that, although he said, “this remains a possibility”. Dr Piperoglou opined that Mr Vasiliou would not work again as a result of a combination of his physical problems and psychiatric state and that he was a poor rehabilitation prospect given his psychiatric state, level of education and limited work history.[43]
[43] Refer Supplementary T-Documents ST9/74.
In terms of treatment and stability of this condition, Dr Piperoglou stated as follows:[44]
3.I have treated Mr Vasiliou with supportive psychotherapy/counselling. He is not very keen on taking sleeping tablets or psychotropic medication. He is not taking any psychotropic medication regularly. I think his prognosis will remain poor from the psychiatric point of view given the chronicity of his physical problems.
4. In my opinion his condition has stabilised.
[44] Refer Supplementary T-Documents ST9/74&75.
Ms Violeta Peterson, Carer Consultant, Alfred Psychiatry
The set of documents lodged by Mr Vasiliou on 11 November 2019 included a letter by Ms Peterson dated 1 August 2014 addressed to the Victorian Civil & Administrative Tribunal (VCAT). Ms Peterson stated as follows in this letter:
Through my contact with Peter Vasiliou, I am aware that he provides significant support to his brother Jimmy in the management of his ongoing mental health issues.
Peter provides extensive financial and emotional support for Jimmy in addition to assistance with daily living activities such as attending medical appointments, preparation of meals and home maintenance/cleaning. During times when Jimmy is unwell, the most important aspect of Peter’s caring role includes monitoring his brother’s medication adherence, managing his finances and supporting him to seek medical treatment. The caring role which Peter undertakes ensures that his brother’s mental health, physical care and financial needs are met.
With this letter, I support Peter Vasiliou in his role as primary carer to Jimmy Vasiliou.
Dr Timothy Day, neurologist & clinical neurophysiologist
Dr Day examined Mr Vasiliou on 28 June 2007 for the purpose of WorkCover.[45] The Tribunal notes that Dr Day qualifications are not in the area of psychiatry or psychology. Bearing that in mind the Tribunal notes Dr Day’s statement in his report as follows:
On the basis of today’s assessment and… taking into account the previously performed normal nerve conduction study and EMG, I cannot find any evidence of any significant neurological problem underlying his multiple somatic complaints. His overall demeanour, his tendency to dramatise or catastrophise his history and the disparity between his reported and actual performance lead me to conclude that he has excessive somatisation, possibly related to an underlying anxiety disorder. He admits to having previous anxiety or depression and is under regular psychiatric review but is not taking medication and his condition cannot be considered to be optimally treated. To my mind his problems are primarily psychiatric or psychological and input from his psychiatrist is likely to be far more valuable than further investigations looking for some overlooked medical condition. Unfortunately he has little insight into the psychological aspect of his condition which suggests a poorer prognosis.
[45] Refer set of documents lodged with the Tribunal by Mr Vasiliou by facsimile transmission on 27 November 2019.
Dr Ken Mulligan, treating GP in Wycheproof

Dr Mulligan, Mr Vasiliou’s treating general practitioner based in Wycheproof, provided two medical reports dated 8 May 2019 and 22 April 2020. Dr Mulligan summarised Mr Vasiliou’s medical conditions in his May 2019 letter, noting as follows in relation to Mr Vasiliou’s mental state:[46]
Mr Vasiliou also has a severe anxiety disorder probably exacerbated by his multiple medical issues and these result in his thought processes being quite chaotic and disorganised.
In summary I believe Peter Vasiliou to have multiple and interacting complex medical problems which are chronic in nature and as a result he has no ability to function in the workplace.
Dr Mulligan expanded upon this opinion in his April 2020 letter as follows:[47]
This is to confirm that Peter Vasiliou…has a significant mood disorder mainly manifesting as anxiety and obsessive compulsive disorder. He has significant maladaptive personality traits of an avoidant and anankastic personality disorder. He has a strong sense of pre-occupation with physical health problems that could be best described as a somatoform disorder. Mr Vasiliou has very limited coping skills which impairs his ability to cope with any significant stressors and as such has a poor ability to function, particularly in the context of a work environment.
The Tribunal accepts the Secretary’s contentions in relation to this medical evidence and considers that it is not appropriate for the Tribunal to place weight on the medical opinions of Dr Mulligan as expressed in these two letters as he commenced treating Mr Vasiliou after he moved to Wycheproof, which took place after the end of the Qualification Period. The Tribunal is also cautious about Dr Mulligan’s diagnoses of mental health conditions as he is neither a psychiatrist, nor clinical psychologist.
[46] Dr Mulligan’s medical report was lodged with the Tribunal on 8 May 2019.
[47] Dr Mulligan’s letter dated 22 April 2020 was lodged with the Tribunal on 23 April 2020.
Hand surgery
On 22 December 2017 (after the end of the Qualification Period), Mr Vasiliou was placed on a waiting list at The Alfred Hospital for the following procedure: “left thumb CMC fusion with local bone graft & repair left common exterior origin tendon”.[48] It appears from the medical records that this orthopaedic procedure took place on 9 May 2018.[49]
[48] Refer T-Documents T31.
[49] Refer T-Documents T37.
Radiological findings
On about 13 September 2013 a CT scan was performed on Mr Vasiliou’s cervical and thoracic spine showing that he had mild cervical spondylosis at C4-5 and C5-6 levels.[50] The radiologist also found as follows:[51]
The left C4-5 neural foramen is moderately narrowed due to unconvertebral disc-osteophyte complex, which may result in some impingement of the exiting left C5 nerve root. Small T7-8 disc protrusion, which is non neural compressive.
[50] Refer T-Documents T-14.
[51] Refer Supplementary T-Documents ST11/737.
On 9 December 2016 an MRI scan was performed on Mr Vasiliou’s cervical spine. The radiologist reported findings that included: “severe right foraminal stenosis at C4-5 secondary to right paracentral osteophyte and disc complex. Foraminal stenoses at other levels…”.[52]
[52] Refer T-Documents T17.
On 8 June 2017, an X-ray was taken of Mr Vasiliou’s left thumb, wrist and elbow and the radiologist made the following findings:[53]
X-ray left thumb
Severe osteoarthritis at the first carpometacarpal joint with the joint space narrowing, subchondral sclerosis and mild osteophytes. Normal appearing first MCP joint and interphalangeal joint of the thumb.
X-ray left wrist
There appears to be old united distal radial and ulnar fractures, the distal ulnar fracture being a malunited with dorsal and ulnar angulation. Associated osteoarthritis at the distal radioulnar joint. Left wrist joint appearances have not changed appreciably from the prior x-ray 13 December 2007.
X-ray left elbow
No signs of an effusion or arthropathy in the left elbow joint. The elbow joint is enlocated. Several surgical clips are noted with the proximal forearm.
[53] Refer T-Documents T22.
On 23 June 2017, an MRI scan was taken of Mr Vasiliou’s left wrist and the radiologist made the following findings:[54]
Post-traumatic osteoarthritis at the distal radioulnar joint, with osteophytes and subchondral cystic changes on the ulnar aspect of the joint.
Triangular fibrocartilage central disc perforation with chondromalacia in the adjacent ulnar and lunate. Neutral ulnar variance.
Moderate grade extensor carpi ulnaris tendinopathy with partial-thickness longitudinal tear.
Severe osteoarthritis at the first carpometacarpal joint and moderate osteoarthritis at the triscaphe joint.
Increased T2 signal within the median nerve at the carpal tunnel can be a sign of carpal tunnel syndrome, although there needs to be correlated clinically.
[54] Refer Supplementary T-Documents ST11/728.
On 9 August 2017, an MRI scan was taken of Mr Vasiliou’s left elbow and the radiologist made the following findings:[55]
Full thickness tear involving the anterior portion of the common extensor tendon origin, with evidence of preexisting common extensor tendon tendinopathy.
Degenerative cartilage loss and high grade chondropathy involving the capitellar cartilage.
Mild elbow joint synovitis but no intra-articular loose body.
[55] Refer Supplementary T-Documents ST11/727.
Neurosurgery physiotherapy screening review at The Alfred
On 7 September 2016, Mr Vasiliou was assessed at the Neurosurgery Physiotherapy Screening Clinic at The Alfred by a musculoskeletal physiotherapist.[56] The physiotherapist recorded that Mr Vasiliou had reported neck pain radiating to his left arm as far as the elbow, with associated arm numbness; radial aspect wrist pain; and episodic history of neck and arm pain since his sternotomy wire was removed. The impression formed by the physiotherapist was that Mr Vasiliou had “musculoskeletal neck pain with nil objective signs of radiculopathy”. The mild cervical spondylosis was noted on the CT scan and the physiotherapist considered that the radial wrist pain was unlikely to be radicular.
[56] Refer Supplementary T-Documents ST11/278&279.
On 7 December 2016 Mr Vasiliou attended the screening clinic again for assessment of his cervical spine. The musculoskeletal physiotherapist found that he had left sided mechanical neck pain and left C7 radiculopathy and referred him for an MRI.[57] It was noted in this report that the aggravating factors to his pain included Mr Vasiliou driving and turning his head while he was doing so.[58]
[57] Refer Supplementary T-Documents ST11/277&278.
[58] Refer Supplementary T-Documents ST11/590.
Mr Vasiliou returned to the clinic on 4 January 2017 with the results of the MRI. The musculoskeletal physiotherapist considered upon examination that Mr Vasiliou had “left sided mechanical neck pain, altered neurodynamics” and possibly left carpel tunnel syndrome with underlying degenerative arthropathy of the left wrist. It was recorded that Mr Vasiliou had reported “80% improvement in his neck and more proximal symptoms today”.[59]
[59] Refer Supplementary T-Documents ST11/276.
Further medical opinion provided by Dr Gouras
Dr Gouras issued a further report on 9 July 2018 (after the end of the Qualification Period) to provide the following medical opinion in relation to Mr Vasiliou’s medical conditions:[60]
The patient has been suffering of multiple medical and ongoing conditions which over the years have not improved but they have further progressed. He has a history of heart infarct, unstable angina, heart failure, hypertension, peptic ulcer, cervical radiculopathy and nerve compression, rotator cuff injuries, back pain, osteoarthritis in his knees, ankles and particularly his elbows and wrist joints.
The patient has never been free of symptoms and he is on regular treatment.
His conditions have been characterised with frequent aggravations of pain and restricted mobility associated with major depression.
He has been treated by various orthopaedic specialists in the past and over the past 5-10 years at The Alfred Hospital.
In my opinion, he is not fit to do any work because of his medical conditions.
[60] Refer T-Documents T39.
Letter from Mind Australia Limited
The Tribunal notes that Mr Vasiliou commenced receiving support from Mind Australia part way through the Qualification Period. A community mental health practitioner from Mind Australia Limited wrote a letter to Centrelink dated 30 July 2018 to confirm the assistance she had been providing to Mr Vasiliou since October 2017. The practitioner stated in this letter as follows:[61]
…My work with Peter has been orientated around helping him manage the stress of his caring role for his brothers; help with psychosocial skills in relation to his physical health issues, housing instability and stress which has been impacting his mental health.
Peter has always engaged in the services at Mind Australia. He always returns phone calls and always attends meetings. Peter is proactive in seeking support for himself, Peter makes contact at times of stress, and when I offer strategies and suggestions, he always takes them on board…
[61] Refer T-Documents T41/154.
Job Capacity Assessment (JCA) – July 2017
A JCA was undertaken by a “rehabilitation counsellor (RCAA/ASORC eligible)” on 26 July 2017 and issued on 24 August 2017.[62] The assessor assessed Mr Vasiliou as having a total impairment rating of 10 points arising from two permanent conditions which the assessor rated under the Impairment Tables as follows:
(a)“myocardial infarction (heart attack)” – 5 points under Table 1 indicating a mild impairment of functions requiring physical exertion and stamina;
(b)“spinal disorder” – 5 points under Table 4 indicating a mild impairment of spinal function.
[62] Refer T-Documents T26.
The assessor considered that Mr Vasiliou had a baseline work capacity of 8 to 14 hours per week in a “light less skilled position”, and a temporary work capacity of 0-7 hours per week with an end date of 24 April 2018. The assessor considered that Mr Vasiliou had a capacity for work within two years, with intervention, of 15 to 22 hours per week. The assessor identified that Mr Vasiliou would require “disability specific intervention in the form of workplace modifications, functional assessment, vocational assessment and post-placement support”.[63] He was referred to DES – Employment Support Services by the assessor.
[63] Refer T-Documents T26/119.
The assessor identified two other conditions considered to be fully diagnosed, but not fully stabilised or fully treated. Those conditions were:
(a)“musculo-skeletal disorder” due to the documented symptoms in Mr Vasiliou’s neck, hands, wrists, lower back, feet and ankles; and
(b)“depression”.
Claim for carer payment and/or allowance
On 13 February 2018 (six months after the end of the Qualification Period), Mr Vasiliou made a claim for carer payment and/or allowance for the provision of care to his brother, who at that time was living in a bungalow at the back of Mr Vasiliou’s residence in St Kilda. Mr Vasiliou stated on the claim form that he was caring for his brother seven days per week.[64]
[64] Refer T-Documents T32.
DSP Medical Assessment Recommendation (MAR) – June 2018
An occupational therapist issued a MAR on 29 June 2018 stating that Mr Vasiliou had the following permanent conditions: “Myocardial Infarction, Spinal Disorder, Musculoskeletal Disorder, and Depression”.[65] The assessor concluded that the evidence provided did not indicate a higher rating for the first two conditions and that the last two conditions could not be considered to be fully diagnosed, treated and stabilised. The assessor did not recommend that an Employment Services Assessment be undertaken.
[65] Refer T-Documents T38.
Mr Vasiliou’s personal circumstances
Mr Vasiliou had a difficult childhood. Mr Vasiliou reported that his father had become violent in the 1970’s and attempted to strangle his mother.[66] His father was previously tortured as a prisoner of war in Cyprus by the British Forces for a period of two years.[67] Mr Vasiliou was reportedly abandoned by his parents when he was in Year 8 and then cared for by relatives. He also reportedly lived by himself at one stage and was then required to live with one of his sisters, who Mr Vasiliou had described as an alcoholic. During this time, Mr Vasiliou was reportedly attacked by a dog which he said had left scarring. Mr Vasiliou told one doctor that he had finished his schooling in Year 10.
[66] Refer history given by Mr Vasiliou to Dr Danny Sullivan as outlined in his medical report dated 28 February 2017 – Supplementary T-Documents ST1.
[67] Refer Supplementary T-Documents ST1/2.
In 1983, Mr Vasiliou was involved in a car accident in Cyprus and sustained fractures to his left radius and ulnar for which he had five operations including a bone graft from his hip.[68]
[68] Refer Supplementary T-Documents ST9/82.
In 1999, Mr Vasiliou was physically attacked and hit on the head repeatedly with a hammer, punched and thrown down the stairs.[69] Many of Mr Vasiliou’s eight siblings have now passed away from different causes. Mr Vasiliou speculated that two of his siblings may have been murdered.[70]
[69] Refer hospital reports from 1999 lodged with the Tribunal on 8 May 2019.
[70] Refer Supplementary T-Documents ST1/3&4.
At the time Mr Vasiliou made his DSP claim, he lived in a house in St Kilda which he inherited from his late mother. Mr Vasiliou’s mother passed away in 2012.[71] Mr Vasiliou reported that his mother had been murdered due to medical mismanagement by a hospital.[72] Mr Vasiliou said that a mental health service had visited Mr Vasiliou’s brother Jimmy, living in the bungalow at the back of the house, on a daily basis.[73] At the hearing Mr Vasiliou said he had to train council workers how to look after his brothers – his other brother also lived there until he passed away in November 2011. Mr Vasiliou said he had to make sure his brothers were “locked in their areas so that they would not disturb or interfere with his mother”. He said when his mother was alive, he had to wake her up early to give her an insulin injection (as she suffered from diabetes and was blind consequently). He said he had to look after his mother and cook and clean for her.
[71] Refer Supplementary T-Documents ST1/3.
[72] Refer Supplementary T-Documents ST1/3.
[73] Refer T-Documents T11/47.
At the hearing, Mr Vasiliou told the Tribunal that he had received a carer’s pension for providing care to his mother before she passed away. He said the pension was subsequently “transferred”, as he was providing care for his brothers. Mr Vasiliou told the Tribunal that his carer’s pension was cancelled in 2014. He said it recommenced in 2018, and then stopped in May 2019 (when Jimmy ceased living with Mr Vasiliou).
Mr Vasiliou told the Tribunal he was forced to sell the house in St Kilda. When asked whether Mr Vasiliou was an executor of his mother’s estate, he said that he was meant to have her home but that the caseworker was corrupt. He also said that the State Trustees had made up “all these lies” and that VCAT had appointed the State Trustees as the executor. He said he bought a house in Wycheproof and he told the Tribunal at the hearing that he moved there on 16 November 2018. Mr Vasiliou said his brother Jimmy lived with him there initially, but “they” took his brother away in about February or March 2019.
Mr Vasiliou said he did not know anyone in Wycheproof, but he chose this town to live in because he was able to afford to buy a house there. He said he currently lived in this house alone. Jimmy remains living in Melbourne in a supported accommodation facility and Mr Vasiliou said he drives to Melbourne to visit him several times per week and that he makes the trip to and from Melbourne from Wycheproof in one day. Wycheproof is, approximately, a three-hour drive from Melbourne.
Mr Vasiliou also remains in contact with his niece who lives in Melbourne with her family.
During the Qualification Period, Mr Vasiliou said he was able to drive a car (and this remains the case). He said he avoids using public transport.
During the Qualification Period, Mr Vasiliou said he tended to his garden every day in the St Kilda home and cooked meals for himself and his brother.[74] The gardening activities he undertook included trimming branches, raking leaves, cleaning gutters and maintaining the nature strip (which he told the Tribunal he did by using a pair of scissors while crouching on all fours on the ground).[75]
[74] Ibid.
[75] Ibid.
Mr Vasiliou has many pet animals that he cares for in his home including cats, dogs and various breeds of birds. When he lived in St Kilda, he kept many pigeons.
Mr Vasiliou told the Tribunal that he collected memorabilia and “all sorts of things”. He said he had a large collection and that the house was covered with it. He said he had dolls, daggers and swords and they were displayed on the walls “like in a gallery”. He said some of them were high on the walls. When asked how they were placed there, Mr Vasiliou said he would slowly get up on a ladder. He said he had been doing this for over 30 years and that he sold some of the items on eBay. He said he started selling things from 2002 onwards and stopped completely in 2014/2015 when he had to pack everything away. He said he had an eBay seller rating of 100%, which he said later dropped to 95-97%. When he sold something, he said he would have to print out the payment receipt and then send the item to where it needed to go. He told the Tribunal that his communication with the buyers was okay.
Mr Vasiliou told the Tribunal that he had sold an investment property in about April 2016. He said he purchased this investment property in 1990’s and it had been used as a rental property. He said he sold the property through an agent. Mr Vasiliou said he signed the agency agreement and that the agents had arranged the s 32 statement to be prepared for the property. He said he signed the contract of sale for the property when it sold. He said he had engaged a solicitor and that he had an accountant.
When Mr Vasiliou rented the investment property prior to it being sold, he said that he was managing it as the landlord because the agent was not doing a good job. He said he had previously engaged two agents. He said that in 2015 and 2016 he was managing it, and this involved monitoring the rental payments into the bank and organising repairs.
Mr Vasiliou confirmed that he had hired a financial adviser who had helped him work out his taxes and his legalities. He said this occurred in 2014 to 2018 and that they came along with him to the solicitors and the court case, because “things became messy” and he said he was not able to deal with it.
Mr Vasiliou confirmed that he posted videos on YouTube and Facebook and that he had a YouTube channel under his name. He said he could not remember whether he had posted videos during the period May to August 2017 specifically. He said that photography was also another one of his hobbies. He accepted that he had posted the videos of the Labrador dog on 23 June 2017 and the spotted neck pigeon on 10 June 2017. He accepted that he had posted 22 (“and maybe more”) videos in 2017 when this was put to him at the hearing by the Secretary’s representative.
CONSIDERATION
Considering the evidence in this application, the Tribunal is guided by the observations of Gyles J in the Federal Court of Australia decision of Harris V Secretary, Department of Employment and Workplace Relations [2007] FCA 404 (Harris) at paragraph [1]:[76]
…the applicant’s entitlement to the pension must be considered as at the date of her claim, namely, 3 May 2004 and a period of 13 weeks thereafter. Any subsequent changes in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time.
[76] Approved by Besanko J in Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [26] to [28]. The Harris case was appealed to the Full Court of the Federal Court in Secretary, Department of Employment & Workplace Relations v Harris [2007] FCAFC 130 but the observations of Gyles J at first instance on this issue were not disturbed by the Full Court’s appeal decision. The approach to be taken was dictated by the terms of the legislation - Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286.
Is the first requirement under s 94(1)(a) of the Act met?

Section 94(1)(a) of the Act requires the Tribunal to determine whether as at the time of the Qualification Period, Mr Vasiliou had a physical, intellectual or psychiatric impairment(s). Impairment is defined by s 3 of the Determination – see paragraph [‎15] of these Reasons for Decision.
Both parties agreed that this requirement was met by Mr Vasiliou. The Tribunal is satisfied on the medical evidence that the requirement under s 94(1)(a) of the Act is met because Mr Vasiliou’s medical conditions resulted in a loss of functional capacity, which affected his ability to work.
Is the second requirement under s 94(1)(b) of the Act met?
The second requirement that Mr Vasiliou must meet is that his impairment(s) must attract a rating of 20 points or more, as assessed under one or more of the Impairment Tables. Section 6(3) of the Determination provides that an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is “permanent” and the impairment resulting from that condition is more likely than not, considering the available evidence, to persist for more than two years.
Under s 6(4) of the Determination, a condition is considered to be “permanent” if it was fully diagnosed, fully treated and fully stabilised and more likely than not to persist for more than two years as at the time of the Qualification Period.
Mental health condition
The Secretary acknowledged that at different times between 1996 and recently as November 2019, two psychiatrists and a general practitioner had diagnosed Mr Vasiliou with a variety of anxiety-related and/or depression-related mental health conditions – see [4.19] of the Secretary’s Submissions and [2.1] of the Secretary’s Supplementary Submissions. However, the Secretary contended that Mr Vasiliou did not have any fully diagnosed mental health conditions based on the medical opinion of Dr Sullivan, a forensic psychiatrist, who opined in February 2017 that while Mr Vasiliou displayed features of anxiety, depression and possibly avoidant or obsessive-compulsive personality disorders, he did not meet the threshold for a clinical diagnosis.
The Secretary urged the Tribunal to place significant weight on Dr Sullivan’s views over the diagnoses of the other doctors on the bases that Dr Sullivan had relevant expertise in diagnosing mental health conditions being a forensic psychiatrist, and he had prepared his report three months before Mr Vasiliou made his DSP claim while the other psychiatrists’ reports were provided many years before this claim was made (i.e. six and a half years in the case of Dr Stern and over 20 years in the case of Dr Piperoglou).
The Tribunal considers that each of the relevant psychiatrists had the relevant degree of expertise to make a diagnosis of Mr Vasiliou’s condition(s) from a mental health perspective.
The Secretary’s representative contended that it could not be presumed that Dr Stern and Dr Piperoglou had undertaken a mental state examination of Mr Vasiliou in contrast to Dr Sullivan who had expressly done so. In relation to Dr Stern, this is not correct as there is a section in his report dated 14 October 2010 entitled “Mental State Examination” evidencing that a mental state examination was undertaken by him. In respect of Dr Piperoglou, the Tribunal is not satisfied that this presumption could fairly be made.
At all relevant times, Dr Piperoglou was a qualified psychiatrist and the Tribunal is able to infer from this and the fact that he was actively treating Mr Vasiliou on a regular basis for an extended period of about ten years, that Dr Piperoglou had undertaken (and most likely on every occasion he saw Mr Vasiliou) a mental state examination of him and further, that Dr Piperoglou’s opportunities to observe Mr Vasiliou were indeed extensive. The Tribunal makes the same inference in respect of Dr Gouras, as Mr Vasiliou’s treating general practitioner, who had many opportunities to observe Mr Vasiliou’s mental state during each of his visits over the years, which included consultations during the Qualification Period.
The Tribunal prefers the medical opinions of Dr Piperoglou and Dr Gouras because they have spent considerably more time in the presence of Mr Vasiliou over the years as his treating physicians.
Further, the Tribunal was not confident in accepting Dr Sullivan’s opinion of “no diagnosis” from a psychiatric perspective, because with all due respect, there was no elucidation by Dr Sullivan in his report as to the reasons why he opined that Mr Vasiliou did not meet the requisite thresholds for a clinical diagnosis despite reaching this conclusion. Further, Dr Sullivan did not state in his report what those thresholds were and his methodology for making an assessment against any such thresholds. Dr Sullivan’s medical conclusion also coexisted awkwardly with the multiple observations made in his report about the various psychological symptoms that had been exhibited by Mr Vasiliou included anxiety; inability to manage the task of an executor of a will; paralysis caused by distress; limited adaptive coping skill and distressed or disorganised cognitive thinking when under pressure.
The Tribunal finds that during the Qualification Period, Mr Vasiliou suffered from long-standing and significant anxiety and depressive symptoms which have impaired his mental health function. The Tribunal considers the most appropriate diagnosis for Mr Vasiliou’s condition was that given to him by Dr Stern being “chronic adjustment disorder with mixed anxiety and depressed mood”. For simplicity, the Tribunal will hereafter refer to this condition as the adjustment disorder in these Reasons for Decision. This diagnosis is broadly consistent with the diagnoses made by Dr Gouras and Dr Piperoglou.
Next, the Tribunal must consider whether Mr Vasiliou’s adjustment disorder was fully treated and fully stabilised as at the Qualification Period. In this respect, the Secretary contended that it was not.
The Secretary relied upon the report by Dr Kalfas, general practitioner, on 2 December 2003 reporting that Mr Vasiliou was prescribed with Zyprexa. The Secretary contended that this medication was “in respect of his pain symptoms”. However, the Tribunal notes that Dr Kalfas’ report did not say this. Instead, he stated as follows:[77]
In 2001 this anxious and tense patient was still under the psychiatric care of Dr. Piperoglou, who was prescribing him the tranquilizer Zyprexa. Peter could not be convinced to accept his chronic multiple pains, fearing that he would end up crippled in his later years if he did not employ the medical profession to cure him…
[77] Refer T-Documents T7/38.
The Tribunal considers that this statement represents that Mr Vasiliou was being prescribed with Zyprexa due to this anxiety, tension and fear about the impact of his chronic multiple pains. This report corroborates that in 2001 Mr Vasiliou was being treated with the medication Zyprexa. The Secretary asserts that Zyprexa is a “tranquilizer”.[78] The Tribunal notes that the active ingredient in this medication is olanzapine. The Therapeutic Goods Administration (TGA) describes this medication as an antipsychotic which is used for the treatment of schizophrenia and related psychoses by acting as a mood stabilizer and to treat acute manic episodes.[79]
[78] Refer [4.27] of the Secretary’s Submissions.
[79] Refer ebs.tga.gov.au.
In support of the Secretary’s contention that any mental health condition was not fully treated or fully stabilised, the Secretary also relied upon the recommendation that had been provided by Dr Stern as set out in his medical report dated 14 October 2010 that “he would probably benefit from long term antidepressant medication”.[80] However, the Tribunal notes that in his subsequent sentence, Dr Stern stated that medication was not expected to assist with Mr Vasiliou’s present level of activities of daily living, but it might improve his depression. The Secretary also highlights that Dr Stern’s report indicates that Mr Vasiliou stopped taking antidepressant medication in 2003.[81]
[80] Refer T-Documents T11/49.
[81] Refer T-Documents T11/47.
The Tribunal is satisfied that as at the Qualification Period, Mr Vasiliou’s adjustment disorder was fully treated and fully stabilised based on the following evidence:
(a)Mr Vasiliou received extensive treatment by a qualified psychiatrist, Dr Piperoglou, for over a decade commencing in July 1996 every month or two months. Those sessions with Dr Piperoglou included “supportive psychotherapy/counselling” with Mr Vasiliou – see paragraph [‎59] to [62];
(b)during this treatment, despite references that were made by Dr Piperoglou that Mr Vasiliou was not keen on taking psychotropic medication, he was prescribed with and took the following medication:
(i)Prozac, for about two or three months – see paragraph [‎59]; and
(ii)Serapax, for about a month;
(c)at the hearing, Mr Vasiliou told the Tribunal that he had taken Zyprexa for two or three months and that it did not work, so he stopped taking it; and
(d)Dr Gouras’ opinion that despite Mr Vasiliou’s “treatment, his severe anxiety and depression has not improved over the years” – paragraph [49].
Dr Sullivan stated in his report that, “Mr Vasiliou reported once at least having been prescribed antidepressants for four to eight weeks but did not feel that these benefited and ceased these”. The Tribunal infers from the time frame mentioned that this was a reference either to Mr Vasiliou having taken Prozac or Zyprexa, as mentioned above. It would seem reasonable for a person to cease taking a medication if there was no noticeable benefit experienced by the person in taking that medication. One of the factors specified in s 6(7)(c) of the Determination when considering whether a treatment is to be regarded as reasonable treatment is whether it could be reliably expected to result in a substantial improvement in functional capacity. The Tribunal considers that once a person had trialled a medication and is non-responsive to it, then that medication is no longer reasonable treatment that a DSP claimant should be expected to receive.
Mr Vasiliou stopped taking the Serapax due to the side effects on him, being that he started to forget things – see paragraph [59]. The Tribunal considers that it was reasonable for Mr Vasiliou to cease taking this medication if it was affecting him in this way noting that another factor to take into account in determining what is reasonable treatment is that it carries a low risk to the person – see s 6(7)(f) of the Determination.
The Tribunal is satisfied that Mr Vasiliou had taken steps to trial three different types of medications as prescribed by his treating physicians to see if they would alleviate his symptoms.
The Tribunal considers that Mr Vasiliou’s mental health condition was long-standing, entrenched and unresponsive to the treatment in the form of both extensive psychotherapeutic counselling by a qualified psychiatrist and different psychotropic mediation trialled under the supervision of his treating physicians. Dr Piperoglou opined that Mr Vasiliou’s condition had stabilised at a point in time before the Qualification Period – see paragraph [62] and the Tribunal accepts this evidence. Dr Stern also opined that his condition had stablished at a point in time before the Qualification Period – see paragraph [53]. The Tribunal notes that Dr Stern opined that treatment in the form of long-term counselling and medication was not expected to assist in respect of Mr Vasiliou’s present level of activities of daily living – see paragraph [53].
The Tribunal finds on the evidence referred to above and because Mr Vasiliou has suffered from the adjustment disorder for a period of many decades, that this condition was more likely than not to persist for more than two years as from the Qualification Period. Now, having the benefit of hindsight, there was no evidence given by Mr Vasiliou at the hearing, which would suggest that his condition had in any way changed or improved. Accordingly, the Tribunal concludes that as at the Qualification Period, Mr Vasiliou’s adjustment disorder was a “permanent condition” as defined under the Act.
The next step is for the Tribunal is to assign an impairment rating in relation to the impairment arising from Mr Vasiliou’s adjustment disorder under the Impairment Tables. The relevant table is Table 5 which deals with impairment to a person’s “mental health function”. There are five levels in respect of impairment “on activities involving mental health function”. They are:
(a)no functional impact (for which zero points are assigned);
(b)mild functional impact (for which five points are assigned);
(c)moderate functional impact (for which ten points are assigned);
(d)severe functional impact (for which 20 points are assigned); and
(e)extreme functional impact (for which 30 points are assigned).
The activities appearing in the descriptors for each of these levels include:
(a)self care and independent living;
(b)social/recreational activities and travel;
(c)interpersonal relationships;
(d)concentration and task completion;
(e)behaviour, planning and decision-making; and
(f)work/training capacity.
A finding that a person has no difficulties with any of those activities will lead to a conclusion that they have no functional impact on their mental health functioning. If they have mild difficulties with most of those activities (i.e. with four or more of those activities), it would lead to a conclusion that they have a mild functional impairment of mental health functioning, and so on in respect of each of the higher levels. Examples are provided for each of the activities to assist the decision-maker (in this case, the Tribunal) distinguish between the different level of difficulty that a person may experience in respect of each activity.
The Tribunal will commence by looking at each activity in turn.
Self care and independent living
During the Qualification Period, the Tribunal notes that Mr Vasiliou was living independently in the residence in St Kilda and was also caring for his brother who was residing in the bungalow behind this house. He was cooking meals for himself and his brother. He was also caring for a range of different pet animals at the house. Further to this, Mr Vasiliou managed his own personal affairs such as his finances and paying bills. He also managed an investment property either independently or at times, with the assistance of managing agents. With the assistance of a real estate agent and solicitors, Mr Vasiliou also managed to sell that investment property.
On the evidence referred to above, the Tribunal finds that Mr Vasiliou had no difficulty with the activity of self care and independent living during the Qualification Period.
Social/recreational activities and travel
During the Qualification Period, Mr Vasiliou had a diverse range of interests including caring for many different types of animals, photography, posting numerous YouTube videos, selling items on eBay and collecting a whole range of collectables and exhibiting them in his home. The evidence did not give an impression that Mr Vasiliou’s social activities were extensive, however, he maintained relationships with his brother, his niece and family who lived in Melbourne and he stayed in touch with some old friends. There was no evidence that Mr Vasiliou engaged in any significant travel, despite expressing a wish to do so. However, Mr Vasiliou reported to Dr Sullivan shortly before the Qualification Period that he felt overwhelmed by his friendships and affiliations with family members and “hid from people” because he would be “bugged to death”.[82]
[82] Refer Supplementary T-Documents ST1/3.
Based on the evidence above, the Tribunal finds that Mr Vasiliou had mild difficulties with the activities of social/recreational activities and travel.
Interpersonal relationships
The Secretary contended that Mr Vasiliou had no difficulties with this activity. The Secretary also contended that any difficulties Mr Vasiliou had experienced with interpersonal relationships did not result from a diagnosed mental health condition and that there was insufficient corroborating evidence that his interpersonal relationships were strained with occasional tension or arguments; that he had difficulty making and keeping friends or sustaining relationships or required assistance to engage in social interactions.[83]
[83] Refer 4.40(e), (f) and (g) of the Secretary’s Submissions.
The Tribunal does not accept the Secretary’s contention. The apparent scope of Mr Vasiliou’s interpersonal relationships are noted in paragraph [‎127]. They appear to be confined to his close family and personal contacts. While it seems he has been able to maintain interpersonal relationships sufficient to engage professional assistance from lawyers, a financial adviser and real estate agents; the Tribunal nevertheless formed an impression from the evidence and Mr Vasiliou’s presentation at the hearing that this had not always been easy and he seemed to experience great difficulty placing his trust in others. Based on the Tribunal’s observations during the hearing, Mr Vasiliou is likely to find it difficult to develop new interpersonal relationships with others around him, based on the manner in which he communicates.
The Tribunal is satisfied that the examples provided in the Impairment Tables for the descriptor applicable to the severe level, applied to Mr Vasiliou. Mr Vasiliou had (and still has) a very small circle of family and friends in his life and when he was living in St Kilda during the Qualification Period, he rarely went out and was socially isolated. He mainly kept the company of his animals and cared for his brother. The Tribunal accepts that Mr Vasiliou probably did hide from people as he had described to Dr Stern. It was clear from the evidence and when he gave evidence at the hearing, that Mr Vasiliou virtually had no trust in other people. To the contrary, the evidence revealed a history of him perceiving that other people were conspiring to harm him or his family members in some way or that certain organisations, including the Police or hospitals, had murdered members of his family. Based on the evidence above, the Tribunal finds that as at the Qualification Period, Mr Vasiliou had severe difficulties with “interpersonal relationships”.
Concentration and task completion
The Secretary accepted that Dr Stern had reported that Mr Vasiliou had reduced concentration (Dr Stern had also reported that his memory was reduced), but contended that there was no corroborating evidence that he had difficulties with his concentration for longer than one hour or that he had difficultly completing education or training.[84] The Secretary further contended that any difficulties he had experienced, either with his concentration or task completion, did not result from a psychiatric condition, essentially relying on the opinion of Dr Sullivan.
[84] Refer 4.40(h) of the Secretary’s Submissions.
As explained above, the Tribunal does not accept Dr Sullivan’s opinion that Mr Vasiliou’s problems arose from his personality structure. The Tribunal has found that Mr Vasiliou has suffered an adjustment disorder and that this condition has impacted significantly on his concentration and task completion based on the following evidence:
(a)Dr Kalfas recorded in his 2003 report that Mr Vasiliou had poor concentration;[85]
(b)Dr Stern recorded in his 2010 report that Mr Vasiliou had reduced concentration;[86]
(c)Dr Sullivan’s observations as set out in his 2017 report that:
(i)Mr Vasiliou’s speech was “circumstantial and meandering, with much extraneous detail but he was able to respond somewhat to redirection”. The Tribunal considers this to be an indicator that Mr Vasiliou’s concentration on the task at hand was poor;[87]
(ii)Mr Vasiliou’s thinking became “progressively distressed and disorganised when under this pressure” to separate the task at hand from his own interests;[88]
(d)Dr Piperoglou’s observations in his 1996 report that Mr Vasiliou’s “attention and concentration was somewhat variable and worsened as the interview proceeded”.[89]
[85] Refer T-Documents T7/35.
[86] Refer T-Documents T11/47.
[87] Refer Supplementary T-Documents ST1/6.
[88] Refer Supplementary T-Documents ST1/7.
[89] Refer Supplementary T-Documents ST9/72.

The Tribunal has not considered the evidence given by Mr Vasiliou at the hearing before the AAT1 or this Tribunal about the degree of impact on his spinal function to the extent that such symptomatology was reported by him after the end of the Qualification Period and was uncorroborated by other evidence before the Tribunal. The Tribunal has limited its consideration to the reported symptomatology as corroborated by others including his treating physicians as set out in the paragraph above.
The Tribunal must now look to see if Mr Vasiliou met the descriptor applicable for a 10-point rating under Table 4, as set out below:
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).
Mr Vasiliou always has, including during the Qualification Period, owned a car and held a driver’s licence. His evidence was that he preferred to travel by driving his car and did not like to take public transport. By his own admission, Mr Vasiliou can drive to and from Melbourne from Wycheproof requiring him to drive independently for about seven hours in one day. Even though this posted-dated the Qualification Period, the Tribunal infers from this at that Mr Vasiliou has been and still is a capable driver arising from his past driving experience. Based on this evidence, the Tribunal is satisfied that Mr Vasiliou met the first requirement of this descriptor being that during the Qualification Period he was “able to sit in or drive a car for at least 30 minutes”.
The second requirement is that Mr Vasiliou meet at least one of the descriptors in (1)(a) to (d) for a 10-point rating.
The Tribunal is not satisfied that the descriptor in (1)(a) is met as evidence was presented in the form of YouTube video clips created and posted by Mr Vasiliou which showed him lifting a small dog above head height during the Qualification Period. The Tribunal is satisfied that Mr Vasiliou was able to sustain overhead activities. This finding was also supported by the evidence that Mr Vasiliou was able to clean the gutters of his former home in St Kilda during the Qualification Period.
The Tribunal is satisfied that the descriptor in (1)(b) is met as at the Qualification Period based on the corroborating evidence referred to in paragraph [‎165(d)] and [‎165(e)] that Mr Vasiliou had restriction of movement in his neck and found it hard to turn his head when driving, needing to rely upon the rear-vision mirrors when doing so.
The Tribunal is not satisfied that the descriptor in (1)(c) is met by Mr Vasiliou because by his own evidence he was able to get down onto the ground to trim his lawn at the house in St Kilda. Further, Dr Hooper had observed in 2010 that he was able to bend over to touch his toes as referred to in paragraph [‎165(c)].
The Tribunal is not satisfied that the descriptor in (1)(d) is met by Mr Vasiliou as he was able to get up out of a chair without requiring assistance as observed by the Tribunal at the hearing. Mr Vasiliou has lived independently at all relevant times and has not required any person to assist him to get up and down out of a chair. There was no complaint by Mr Vasiliou that he had such physical limitation.
Given the Tribunal’s finding that Mr Vasiliou met the descriptor in (1)(b) and the requirement as described in paragraph [‎168], the Tribunal is satisfied that the 10-point rating applied to him under Table 4.
Next, the Tribunal must consider whether Mr Vasiliou met the descriptors for a 20-point rating under Table 4.   These descriptors are set out below:
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 head, 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.
The Tribunal is not satisfied that Mr Vasiliou met the descriptor in (1)(a) based on the evidence referred to in paragraph [‎170].
While the Tribunal considers that Mr Vasiliou had trouble turning his head as outlined above, the Tribunal does not consider that there is any corroborating evidence that he was unable to turn or bend his head without moving his trunk. This was also apparent from the YouTube video footage showing Mr Vasiliou’s head movements at the time of the Qualification Period. Mr Vasiliou’s neck restrictions did not extend to a level that met the descriptor under (1)(b).
The Tribunal is not satisfied that Mr Vasiliou met the descriptor in (1)(c) based on the evidence referred to in paragraph [‎172].
There was no evidence to support a conclusion that Mr Vasiliou met the descriptor in (1)(d) and the Tribunal is satisfied that he was able to remain seated for at least 10 minutes, as observed by the Tribunal at the hearing.
In conclusion, the Tribunal finds that the 20-point rating under Table 4 should not be assigned to Mr Vasiliou on account of his spinal conditions. The Tribunal concludes that the appropriate rating to be assigned to him under Table 4 is 10 points.
The Tribunal has also considered that Mr Vasiliou’s spinal conditions resulted in an impairment during the Qualification Period to his lower limb function. The Secretary contended that there was no functional impact on Mr Vasiliou’s lower limb function because the evidence established that he required no assistance when ambulating, did not experience falls and in fact, walked frequently with no limitation. This was confirmed by Mr Vasiliou’s own evidence at the hearing. He told the Tribunal that he still took his dogs for a walk and would do so at night by taking them to the park. The Tribunal also observed Mr Vasiliou walking at the hearing without restriction or requiring assistance. The evidence by Mr Vasiliou was that he completed household tasks during the Qualification Period and was able to care for his pet animals. This evidence supports a finding that Mr Vasiliou was able to ambulate freely and without assistance.
The Tribunal accepts the Secretary’s contention that the descriptors for a five-point rating under Table 3 were not met in Mr Vasiliou’s case. The Tribunal agrees that there was no corroborating evidence that he was unable to stand for more than 10 minutes or that he used a lower limb prothesis or walking stick when mobilising. The Tribunal finds that descriptor (2) for a five-point rating in Table 3 was not met. The Tribunal also finds that descriptor (1) was not met based on the matters referred to in the above paragraph.
Accordingly, the Tribunal concludes that there was nil functional impact on Mr Vasiliou’s spinal function arising from his spinal conditions as at the Qualification Period, and zero points are to be assigned to him under Table 3.
Lower limb conditions
The Secretary accepts, and the Tribunal finds on the evidence, that Mr Vasiliou also suffered from two lower limb conditions, namely varicose veins and a right ankle stress fracture of the medial malleolus, which were fully diagnosed, fully treated and fully stabilised. However, the Tribunal has already assessed that Mr Vasiliou had no functional impact on his lower limb function as outlined in the above paragraphs as at the Qualification Period.
Accordingly, the Tribunal concludes that nil points can be assigned to Mr Vasiliou under Table 3 arising from these two lower limb conditions.
Upper limb conditions
The Secretary accepts, and the Tribunal finds, that as at the Qualification Period, Mr Vasiliou suffered from the following right upper limb conditions, which were fully diagnosed, fully treated and fully stabilised:
(a)right shoulder injuries, namely, tear in the anterior portion of the labrum,[122] subluxation and labral tear and partial tear of the supraspinatus tendon;[123]
(b)right elbow injury, namely, synovitis;[124]
(c)right hand/finger injury;[125] and
(d)right wrist injury, namely, hairline fracture of the distal radius, mild synovitis, post-traumatic arthritis.[126]
[122] Refer T-Documents T5/31.
[123] Refer Supplementary T-Documents T9/102.
[124] Refer T-Documents T7/34.
[125] Refer Supplementary T-Documents ST9/105.
[126] Refer T-Documents T7/34.
The Tribunal is satisfied that these conditions were likely to persist for more than two years from the end of the Qualification Period (and indeed, have persisted). The Tribunal concludes that they are permanent conditions as defined under the Act.
The Tribunal acknowledges the emergence of some other significant issues concerning Mr Vasiliou’s left thumb and wrist. However, the Tribunal accepts the Secretary’s contention that those left upper limb conditions were not fully treated or fully stabilised because significant treatment was planned to take place after the end of the Qualification Period, specifically:
(a)a medical certificate issued by The Alfred Hospital on 8 November 2018 referred to planned surgery to be performed on Mr Vasiliou’s left thumb and elbow;[127] and
(b)a medical report issued by Dr Mulligan on 8 May 2019 stated that Mr Vasiliou was awaiting tendon repair surgery to his left elbow that occurred as a result of an injury sustained in 2016;[128] and
(c)Mr Vasiliou’s evidence at the hearing was that he was on a waiting list to have a joint replacement of the left wrist.
[127] Refer Supplementary T-Documents ST2/8.
[128] Refer Supplementary T-Documents ST6/18.
The Tribunal considers that it must now assign an impairment rating under Table 2 in respect of any upper limb impairment arising from Mr Vasiliou’s right upper limb conditions as found by the Tribunal to be permanent conditions.
The Secretary contended that no impairment points should be assigned to Mr Vasiliou under Table 2 because there was nil functional impact on his upper limb function. The Secretary contended that Mr Vasiliou was able to live independently, care for his brother at the time of the Qualification Period, maintain his household which involved gardening and caring for a significant number of animals; indicating that Mr Vasiliou was able to pick up, handle, manipulate and use most objects on a daily basis without difficulty. The Secretary also contended that there was no corroborating evidence that Mr Vasiliou experienced difficulties with picking up heavy objects, handling very small objects, doing up buttons or reaching out to pick up objects and for this reason, he did not meet most (i.e. three or more) of the descriptors for the five-point rating under Table 2.
The Tribunal notes that The Alfred Hospital issued a report on 21 January 2017 recording that Mr Vasiliou had a full range of movement in his left and right shoulders (abduction), elbows (flexion and extension) and wrists (flexion and extension).[129]
[129] Refer Supplementary T-Documents ST11/350.
During the JCA assessment carried out in July 2017, it was recorded that Mr Vasiliou was able to write, use a keyboard, tie up his shoelaces, carry items, trim branches, rake leaves, clean gutters, care for his pets and complete all activities of daily living including cooking and shopping. However, the Tribunal notes the following reference in the JCA report regarding Mr Vasiliou’s right arm:
He is right hand dominant. Has reduced mobility & strength in right hand. Needs to rest often and his hand cramps up. He is able to write, use a keyboard/tie up shoelaces/carry items – however this causes pain.
Based on this evidence, the Tribunal is satisfied that as at the Qualification Period, Mr Vasiliou had some difficulty (due to the pain he reportedly experienced) with doing most, if not all, of the activities listed in descriptor (1) for a five-point rating under Table 2.
The Tribunal must now consider whether the degree of his functional impairment was at a level to meet the descriptors for a 10-point rating. The Tribunal considers that these conditions did not have a moderate impact on his upper limb function because there was insufficient corroborating evidence that as at the Qualification Period, he was experiencing difficulty with four or more of the activities listed in descriptor (1).
The Tribunal is satisfied that Mr Vasiliou was able to pick up a one litre carton of liquid without difficultly given the full range of activities of daily living he engaged in such that he could look after himself, his brother and many pet animals independently. He was also able to engage in several activities necessitating the concentrated use of either photographic equipment and his telephone or computer to enable him to post numerous YouTube videos on his YouTube channel and to sell several items on eBay. The Tribunal is not satisfied that Mr Vasiliou experienced difficulty with using a standard computer keyboard, using a pen or picking up a light but bulky item, all of which he would have been required to do when selling items on eBay and then attending to the packaging and postage of those items to the buyers.
The Tribunal concludes that as at the Qualification Period, there was a mild (but not moderate or any greater degree of) functional impact on Mr Vasiliou’s upper limb function as a result of his upper limb conditions found by the Tribunal to be permanent conditions. Accordingly, the Tribunal assigns 5 points under Table 2 for the impairment to Mr Vasiliou’s upper limb function.
There were also some brain and gastrointestinal conditions referred to in the documentary materials. However, for the reasons as outlined in the Secretary’s Submissions from [4.67] to [4.73] the Tribunal is satisfied that those conditions were not permanent conditions as defined under the Act, and also that there was insufficient corroborating evidence that they had any functional impact on Mr Vasiliou’s digestive function or brain function such as would warrant the assignment of a rating under Table 10 or 7 respectively.
Based on the findings of the Tribunal above, the Tribunal concludes that as at the Qualification Period, Mr Vasiliou had a total impairment rating of 30 points arising in combination under Tables 1, 2, 4 and 5.
Therefore, the Tribunal concludes that as at the Qualification Period, Mr Vasiliou met the requirements under s 94(1)(b) of the Act.
“Continuing inability to work” requirements
The next task for the Tribunal is to consider whether as at the Qualification Period, Mr Vasiliou had a “continuing inability to work” under s 94(1)(c) of the Act, as defined by ss 94(2) and (3). Unless a person has a “severe impairment” (i.e. they have 20 or more impairment points under any one impairment table), a person must show that they “actively participated in a program of support” within the meaning of s 94(3C) prior to making their claim for DSP. This applies to Mr Vasiliou because this Tribunal has not assigned an impairment rating of 20 points or more under any one impairment table in respect of his permanent conditions.
This is a problem for Mr Vasiliou because the undisputed evidence before the Tribunal is that at no time during the Qualification Period, was Mr Vasiliou enrolled at all in a program of support. The “Referral History” report generated by Centrelink shows the first activity recorded was not until 4 December 2017 and this was described as “Quarterly contact for 0-7 and 8-14 job seekers”.[130] There was an absence of any history showing activity in the form of participation in a program of support, whether under an exemption or otherwise.
[130] Refer T-Documents T47/164.
The Social Security (Active Participation for Disability Support Pension) Determination 2014 (POS Determination) sets out what it means for a person to have “actively participated in a program of support”. Part 2 of the POS Determination requires, among other things, that a program of support is provided by a “designated provider” which is defined in s 5, exclusively, as a Job Services Australia provider, a Disability Employment Services provider, an Australian Disability Enterprise or any person who provides a program of support that is funded wholly or partly by the Commonwealth. Section 7 sets out what it means for a person to have “actively participated” in such a program. It requires a person to have participated in a program of support for at least 18 months within the three years prior to the date of making of DSP claim (i.e. in Mr Vasiliou’s case, the relevant three-year period commenced on 15 May 2014 and ended on 15 May 2017). As mentioned above, Mr Vasiliou did not participate in a program of support with a designated provider at any time during this three-year period.
The other way that a person can meet the program of support requirement is for one of the “exceptions” stated in subsections 7(3), (4) or (5) to apply to the person.
The exception in subsection 7(3) applies if a person completes a program of support for a period that is less than 18 months if the duration of the program was only for such lesser period. This is not applicable to Mr Vasiliou as he did not complete any program of support before making his DSP claim.
The exception in subsection 7(4) applies if a person was participating in a program of support and it was terminated because the person was unable, solely because of their impairment, to improve their capacity to prepare for, find or maintain work. Again, this is not applicable to Mr Vasiliou as he did not participate at all in any program of support before making his DSP claim.
The final exception under subsection 7(5) applies if a person was participating in a program of support at the end of the relevant period, and they were prevented, solely because of their impairment, from improving their capacity to prepare for, find or maintain work through continued participation. This does not apply to Mr Vasiliou as he was not participating in a program of support at the end of the Qualification Period on 15 August 2017.
The Tribunal acknowledges that several of the specialist and general physicians who have examined Mr Vasiliou opined that Mr Vasiliou is neither fit for, nor ever likely to work again. The Tribunal accepts that evidence. However, the framework provided under the POS Determination establishes requirements which, in Mr Vasiliou’s case, he is unable to meet, because at no stage prior to making his DSP claim did he enrol and participate in a program of support with a designated provider. This means that none of the “exceptions” can apply to Mr Vasiliou for the reasons set out above.
The Tribunal makes a non-binding observation that if Mr Vasiliou’s circumstances were different (and they may be different at a later point in time upon making a subsequent claim for DSP, which he is entitled to do) and Mr Vasiliou was in fact, enrolled and participating in a program of support at the end of any new relevant qualification period, based on the evidence that has been presented to the Tribunal as part of this application, the Tribunal observes that Mr Vasiliou is likely to meet the requirements under s 7(5) of the POS Determination.
CONCLUSION
In conclusion, the Tribunal is not satisfied that Mr Vasiliou had a continuing inability to work as at the Qualification period, because he did not actively participate in a program of support prior to making his DSP claim. For this reason, although Mr Vasiliou met the eligibility requirements under both subsections 94(1)(a) and (b) of the Act, he did not meet the further mandatory requirements under subsection 94(1)(c) of the Act.

Accordingly, Mr Vasiliou did not qualify for the DSP as at the Qualification Period and the Tribunal affirms the decision under review.
The Tribunal appreciates that Mr Vasiliou will be greatly disappointed by the outcome of this application. The Tribunal encourages Mr Vasiliou to consider reapplying for the DSP if he considers that his circumstances have changed such that he may be able to demonstrate at a subsequent point in time that he meets the “program of support” (and “continuing inability to work”) requirements under the POS Determination, in addition to the remaining DSP eligibility requirements under the Act.

I certify that the preceding 211 (two hundred and eleven) paragraphs are a true copy of the reasons for the decision herein of Member K. Parker

................[sgd]...............................................
Associate
Dated: 24 April 2020

Dates of hearing:

Date final submissions lodged:

19 September 2019 & 6 November 2019

24 April 2020

Applicant:

In person

Representative for the Respondent: Mr Pietro Nacion
Sparke Helmore Lawyers

[2020] AATA 962

24 April 2020

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