Vergios and Secretary, Department of Social Services (Social services second review) - [2016] AATA 16

Vergios and Secretary, Department of Social Services (Social services second review) [2016] AATA 16 (20 January 2016)

Division

GENERAL DIVISION

File Number

2014/4679

Re

Michael Vergios

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal
Dr I Alexander, Member

Date 20 January 2016

Place Sydney
The Tribunal affirms the decision under review.
............................[sgd]............................................
Dr I Alexander, Member
CATCHWORDS
SOCIAL SECURITY – disability support pension –– whether conditions fully diagnosed, treated and stabilised – impairment ratings – continuing inability to work – whether additional medical evidence supports “severe impairment” during claim period
LEGISLATION
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Social Security (Requirements and Guidelines- Active Participation for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Dr I Alexander, Member
20 January 2016

Mr Vergios is currently 55 years old and has been receiving Disability Support Pension (DSP) intermittently since 1999.
In March 2009, whilst receiving DSP, he was injured in a workplace accident.
On 18 July 2012, Mr Vergios settled a compensation claim for $123,000.00 and consequently was subject to a compensation preclusion period from 28 June 2012 to 27 November 2013. His DSP was cancelled on 14 October 2013 because he was not entitled to pension payments until after 27 November 2013.
On 9 December 2013, Mr Vergios lodged a new claim for DSP on the basis that he suffered several medical conditions which were having an impact on his ability to function.
Mr Vergios’ claim was rejected by Centrelink, both initially and on internal review, on the basis that he did not satisfy the requirements of s 94 of the Social Security Act 1991 (Cth) (“the Act”). In particular he did not satisfy s 94(1)(c) of the Act, which requires that the person has a continuing inability to work. In particular, he did not have a severe impairment under a single Impairment Table and had not actively participated in a program of support (POS).
In a decision dated 15 August 2014, the Social Security Appeals Tribunal (“SSAT”) found that Mr Vergios’ total impairment rating was 15 points and therefore he did not satisfy s 94(1)(b) of the Act.
In these proceedings Mr Vergios seeks review of the SSAT decision.
Mr Vergios attended the hearing by telephone and was self-represented.
I note that, following a review of additional medical evidence, Mr Vergios was granted DSP on 26 March 2015 on the basis that his spinal function attracted an impairment rating of 20 points under Impairment Table 4 and that he had a continuing inability to work.
ISSUES
In order to qualify for DSP, Mr Vergios must satisfy the requirements of s 94 of the Act as at the date of the claim or within 13 weeks of lodging the claim, in accordance with the requirements of the Social Security (Administration) Act 1999, that is, between 9 December 2013 and 10 March 2014 (the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Vergios and Secretary, Department of Social Services (Social services second review) [2016] AATA 16
Case: [2016] AATA 16
Decision Date: 20 January 2016

CaseChat Overview and Summary

In the case of Vergios and Secretary, Department of Social Services, the applicant sought a review of the decision to deny his claim for a Disability Support Pension (DSP). The dispute centred on whether the applicant's conditions were fully diagnosed, treated, and stabilised during the relevant period and whether his impairment ratings supported a finding of severe impairment. The case was heard in the Administrative Appeals Tribunal (AAT).

The legal issues before the court included determining whether the applicant's medical conditions were fully diagnosed, treated, and stabilised at the time of the DSP application and whether the impairment ratings assigned by the Department of Social Services were accurate. Additionally, the court had to consider whether the applicant's inability to work was due to the severity of his impairments during the claim period.

The AAT found that during the period of the DSP claim, the applicant did not have a rating of 20 points under a single Impairment Table, as required by the legislation. The tribunal accepted that while the applicant's conditions had deteriorated since the DSP application, this deterioration occurred after the claim period. The tribunal concluded that the applicant had not actively participated in a Plan of Support (POS) as required by the Social Security Act. Consequently, the tribunal affirmed the decision to deny the applicant's DSP claim.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Accordingly, I am satisfied that, during the claim period, Mr Vergios did not have a rating of 20 points under Impairment Table 4.DECISION For reasons set out above I am satisfied that, during the claim period Mr Vergios did not have a rating of 20 points under a single Impairment Table and therefore, as he had not actively participated in a POS he did not satisfy s 94(1)(c) of the Act and did not qualify for DSP. The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

The assessor states that in a phone call to Dr Costa on 30 March 2015, Dr Costa confirmed that Mr Vergios had experienced a deterioration in his back condition over the last year since his application for DSP [emphasis added]. The assessor notes that the JCA report of 8 January 2014 did “not assess his back injury as it was not listed in the medical report provided for the assessment” and was rated together with the neck injury to avoid a double rating with an allocated rating of zero points under Table 4. In an incomplete copy of a letter dated 17 December 2014, Professor Papantoniou notes, inter alia, that Mr Vergios “continues to have quite severe lower back pain which he feels has been getting worse over the last few years…his biggest problem at present is his lower back pain”. In a subsequent letter dated 12 February 2015, Professor Papantoniou notes that Mr Vergios continues to have lower back pain and expresses the following opinion:“I feel Mr Vergios has severe lumbar degeneration, which is worst at L5/S1 and much less severe at L4/5 going upward. His biggest problem I feel is at L5/S1 probably followed by L4/5. I note he cannot sit for more than 5 minutes and certainly the image pathology could confirm this…..Mr Vergios has asked me to try and give an assessment based on the social security tables for assessment and I note from the 2011 Tables Mr Vergios appears to qualify for a 20 point disability based on his lumbar spine.” In a supplementary report of the JCA performed on 26 March 2013, which was also reviewed by the Business Manager, Assessment Services, East and South NSW, the assessor stated that: “The JCA interview on 26/03/2015 considered Mr Vergios’ permanent medical conditions at 09/12/2013. Mr Vergios’ neck and back pain were assessed to be fully diagnosed, treated and stabilised and assigned an impairment rating of 10 points under Table 4”. In response to a hypothetical question as to whether Mr Vergios would be qualified for DSP if he lodged a new claim now, the assessor stated the following:“Mr Vergios’ back and neck injuries would be likely to be considered fully diagnosed, treated and stabilised as there was no further treatment planned. The letter from Associate Professor Papantoniou (12/02/2015) and the letter from Dr Con Costa (26/02/2015) both indicated that Mr Vergios was unable to sit for 10 minutes due to his back injury. This was consistent with his presentation in the assessment. This would be consistent with an impairment rating of 20 points under Table 4, as he is unable to remain seated for at least 10 minutes”. The assessor goes on to state, inter alia:“If Mr Vergios were to lodge a new claim for DSP, his current work capacity would be likely to be assessed as 0-7 hours per week as he was unable to sit for more than 10 minutes and had difficulty standing for more than 10-15 minutes… he would not currently be required to meet POS requirements if assessed to be “severely impaired”… this assessment considered additional medical evidence…. this additional information confirmed that Mr Vergios’ back injury had deteriorated at the end of 2014…this new information would provide evidence that Mr Vergios could be assigned 20 points for his back and neck condition if he applied for DSP today, but does not impact on the impairment rating assigned in respect of his DSP claim on 09/12/ 2013 plus 13 weeks”. [emphasis added]CONSIDERATION

Division	GENERAL DIVISION
File Number	2014/4679
Re	Michael Vergios
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

Tribunal	Dr I Alexander, Member
Date	20 January 2016
Place	Sydney