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

[2016] AATA 746

Vass and Secretary, Department of Social Services (Social services second review) [2016] AATA 746 (27 September 2016)

Division	GENERAL DIVISION
File Number(s)	2015/6341
Re	Tamas Vass
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member A Poljak
Date	27 September 2016
Place	Sydney

The decision under review is affirmed.

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

Senior Member A Poljak

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether applicant’s conditions were fully diagnosed, treated and stabilised – whether applicant’s impairments are rated 20 points or more under the Impairment Tables – ischaemic heart disease awarded 5 points under Table 1 – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth) s 42, Sch 2

SECONDARY MATERIALS

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

REASONS FOR DECISION

Senior Member A Poljak

27 September 2016

INTRODUCTION

1. Mr Vass seeks review of a decision by the Social Services and Child Support Division of the Administrative Appeals Tribunal (“SSCSD”) made on 17 November 2015 (“the decision”). In the decision, the SSCSD affirmed a decision made by Centrelink on 17 June 2015, which was affirmed by an Authorised Review Officer on 23 July 2015, rejecting Mr Vass’ claim for the disability support pension (“DSP”) made on 21 April 2015.

2. Mr Vass’ claim for DSP was rejected on the basis that he did not satisfy the eligibility criteria set out in section 94 of the Social Security Act 1991 (Cth) (“the Act”).

3. Section 94 of the Act provides that to qualify for payment, a person must have a physical, intellectual or psychiatric impairment, or impairments, which rate 20 or more points according to the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Impairment Tables”); and a continuing inability to work as defined in the Act.

4. Mr Vass had to satisfy these criteria on 21 April 2015, when he applied for the DSP, or within the following 13 weeks, that is, by 21 July 2015 pursuant to section 42 and Schedule 2 of the Social Security (Administration) Act 1999 (Cth) (“the claim period”).

5. The Secretary accepts that Mr Vass suffered from a number of conditions including an ischaemic heart disease, depression, hernia, alcohol dependence and bilateral knee pain during the claim period. He therefore satisfies section 94(1)(a) of the Act.

   IMPAIRMENT TABLES

6. The Impairment Tables include rules for assigning ratings to determine the level of functional impact of impairment. Impairment is defined in section 3 to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition”. 

7. Sections 6(3) and 6(4) provide that impairment can only be given a rating on the Impairment Tables if the condition is considered permanent. A condition is permanent if it has been fully diagnosed by an appropriately qualified medical practitioner, fully treated, fully stabilised, and it will more likely than not persist for more than two years.

8. In assessing whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, section 6(5) instructs that a decision-maker must consider whether there is corroborating evidence of the condition, what treatment or rehabilitation has occurred, and whether treatment is still continuing or is planned in the next two years.

9. Section 6(6) defines fully stabilised to mean that it is unlikely that there will be any significant functional improvement in a condition, with or without reasonable treatment, within the next two years.

10. Section 11 of the Impairment Tables instructs that an impairment rating can only be assigned in accordance with the ratings in each table and a rating cannot be assigned between consecutive impairment ratings. Significantly, section 11(1)(c) provides:

    (c) if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied (emphasis added).

11. For multiple conditions causing a common problem, sections 10(5) and 10(6) of the Impairment Tables provide:

    (5) Where two or more conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.

    (6) …it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once.

    CARDIAC CONDITION

12. The Secretary accepts, and I am satisfied, that Mr Vass’ ischaemic heart disease was fully diagnosed, treated and stabilised during the claim period. This is supported by the medical certificate of Dr Heves dated 20 February 2014 and medical report dated 13 March 2014, the report of Dr Walters dated 5 March 2014 and the medical report of Dr Vago dated 21 April 2015.

13. The Impairment Tables are designed to assess the level of functional impact of impairment and not to assess conditions. Table 1 of the Impairment Tables assesses the functional impact of impairment when performing activities requiring physical exertion or stamina. Accordingly, the issue before me is what functional impairment rating is appropriate for Mr Vass under Table 1 as a result of his ischaemic heart disease.

14. In the medical report dated 21 April 2015, Dr Vago advised that Mr Vass suffers from angina and breathlessness and that his physical activity is reduced. Dr Vago opined that Mr Vass was “permanently disabled and unfit for work” although it is unclear on what basis this opinion is founded in terms of functional impairment.

15. The report of a job capacity assessment (“JCA”), undertaken on 22 May 2015, shows that Mr Vass told the assessor he was able to walk on flat surfaces, but finds walking on an incline difficult. He advised that he was unable to perform heavy lifting and does his grocery shopping in small amounts.

16. At hearing, Mr Vass advised that during the claim period, he was able to walk on flat surfaces and downhill but had difficulty walking up hill and climbing stairs. He agreed that he was able to do housework without assistance or difficulty and could walk to the local supermarket and do his shopping; provided the groceries were not too heavy.

17. On the evidence before me and having regard to the descriptors in Table 1, I am satisfied that Mr Vass’ functional impairment as a result of his cardiac condition warrants a rating of 5 points for functional impact.

    MENTAL HEALTH CONDITION

18. The Secretary accepts, and I am satisfied, that the conditions of adjustment disorder with mixed anxiety, depressed mood and post-traumatic stress disorder (PTSD) were fully diagnosed during the claim period. This finding is supported by the reports of consultant psychiatrist, Dr Ziukelis dated 27 February 2013, 4 March 2013 and 24 April 2014.

19. The issue before me is whether the conditions were fully treated and stabilised during the claim period and if so, what functional impairment rating is appropriate under Table 5 of the Impairment Tables.

20. At hearing, Mr Vass said that he only took medication for his mental health condition for a period of six months in 2013. He advised that the medication did not help with his mood so he stopped taking it. Mr Vass last consulted Dr Ziukelis in 2014 and has not sought or received any counselling or treatment since.

21. In regards to functional impairment, the JCA report records Mr Vass’ symptoms as low mood, anxiety, insomnia, loss of motivation and difficulty coping. 

22. In the report dated 21 April 2015, Dr Vago advised that treatment for Mr Vass’ mental health conditions is conservative and that he is very compliant with recommended treatment. At hearing, Mr Vass said that his mental health conditions did not impact on his functional ability much during the claim period. He had no difficulties with self-care and lived independently.

23. Mr Vass’ evidence and the report of Dr Vago indicate to me that Mr Vass would undertake treatment for his mental health conditions if needed and given his self-reporting of symptoms during the claim period, I accept that further treatment was not required.

24. On the evidence before me I am satisfied that Mr Vass’ mental health conditions were fully treated and stabilised during the claim period. Having regard to the descriptors in Table 5, and the functional impairment, I am satisfied that his mental health conditions warrant a rating of 0 points for functional impact.

    OTHER CONDITIONS

25. Mr Vass claimed in his application for DSP that he suffered from a number of other conditions. Namely, bilateral inguinal hernia, alcohol dependence and bilateral knee pain.

26. The Secretary contends that the bilateral inguinal hernia was fully diagnosed but was not fully treated and stabilised during the claim period. In regards to the bilateral knee pain and alcohol dependence, the Secretary contends that these conditions were not fully diagnosed, treated and stabilised during the claim period. I agree for the following reasons.

27. At hearing, Mr Vass advised that alcohol dependence was no longer an issue as he had given up alcohol; the hernia caused him minimal functional impact and only when lifting heavy objects; and his bilateral knee pain was only an issue occasionally and was dependent on the weather.

28. In the report dated 13 March 2014, Dr Heves diagnosed bilateral inguinal hernia. I accept that this condition was fully diagnosed during the claim period but I am not satisfied that it was fully treated and stabilised. Mr Vass advised that the bilateral inguinal hernia required surgery however he cannot have the surgery due to his heart condition. In any event, I accept Mr Vass’ evidence that the hernia causes minimal functional impact.

29. The medical certificate of Dr Vago, dated 12 October 2015, states that Mr Vass has bilateral knee degenerative arthritis causing bilateral knee pain. There is no other corroborating evidence before me. The report of Dr Vago is dated after the claim period and the date of onset of the condition is unknown. Therefore I cannot be satisfied that bilateral knee degenerative arthritis was fully diagnosed, treated and stabilised during the claim period.

30. Having regard to Mr Vass’ evidence at hearing and the lack of medical evidence before me to support a finding that any of these conditions were fully treated and stabilised during the claim period, an impairment rating cannot be assigned for Mr Vass’ bilateral inguinal hernia, alcohol dependence and bilateral knee pain.

    CONTINUING INABILITY TO WORK

31. As Mr Vass’ impairments did not rate 20 or more points on the Impairment Tables, his claim for DSP cannot succeed. It is therefore not necessary to consider whether he also had a continuing inability to work during the claim period.

    CONCLUSION

32. For all of the reasons given above, I affirm the decision under review.  Mr Vass may apply for DSP again at any time. 

I certify that the preceding 32 (thirty -two) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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

Associate

Dated   27 September 2016

Date(s) of hearing	19 August 2016
Applicant	In person
Solicitors for the Respondent	J Eslick, Department of Human Services