Dedes and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 899 (16 December 2011)

Last Updated: 16 December 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 899

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2011/1017

GENERAL ADMINISTRATIVE DIVISION		)
	Re		JOHN DEDES

Applicant

And

SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal

Senior Member R W Dunne

Date 16 December 2011

Place Adelaide

Decision

The Tribunal affirms the decision under review.

..............................................
R W DUNNE
(Senior Member)

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – entitlement to Disability Support Pension – whether impairment rating of 20 points or more existed under the Impairment Tables – whether there was a “continuing inability to work” – Job Capacity Assessments conducted – reports of medical practitioners – decision under review affirmed.

Social Security Act 1991 (Cth) ss 94(1), (2), (3), (5), Schedule 1B
Secretary, Department of Employment and Workplace Relations v Parry [2007] FCA 1606
Secretary, Department of Social Security v Pusnjak [1999] FCA 994
Re Crossland and Secretary, Department of Family and Community Services [2004] AATA 864
Croker v Secretary, Department of Employment and Workplace Relations [2007] FCA 1635

REASONS FOR DECISION

16 December 2011

Senior Member R W Dunne

INTRODUCTION

1. The matter that is the subject of this review, following an indication of intent made on 11 October 2010, relates to a claim for Disability Support Pension (“DSP”) lodged with the respondent (Centrelink) on 19 October 2010. The claim was lodged by the applicant (Mr John Dedes) and confusingly was dated 3 March 2010 (on page 14) and 23 March 2009 (on page 26) and described as a “back-dated DSP pension claim”. In the claim form, Mr Dedes reported his medical conditions as “sleep apnoea, insomnia, stress and anxiety”. A medical report dated 5 March 2010 prepared by his treating doctor, Dr R Antic, accompanied the claim. In the absence of new or different supporting medical information, the claim was rejected on 23 November 2010. Mr Dedes requested a review of that decision by an Authorised Review Officer (“ARO”) and the Social Security Appeals Tribunal (“SSAT”). Both the ARO and the SSAT affirmed the original decision. Mr Dedes has applied to this Tribunal for review of the decision of the SSAT.
2. At the hearing, Mr Dedes was self-represented and the respondent was represented by Ms Julie Edwards (from Centrelink Program Litigation and Review Branch). The T documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 were admitted into evidence (as Exhibit R1), together with various documents provided by Mr Dedes (Exhibit A1).

ISSUE FOR THE TRIBUNAL

3. The issue for the Tribunal, in relevantly considering s 94 of the Social Security Act 1991 (“Act”), is whether Mr Dedes was qualified to receive DSP during the period from 11 October 2010 or within 13 weeks thereafter, namely 10 January 2011 (“Claim Period”). In respect of the Claim Period, Centrelink accepted that Mr Dedes had a physical, intellectual or psychiatric impairment. Centrelink did not accept:

(a) that the impairment attracted an impairment rating of at least 20 points under the Impairment Tables contained in Schedule 1B of the Act; and

(b) that Mr Dedes had a “continuing inability to work”, because of his impairment, within the meaning of s 94(1)(c)(i) and s 94(2), (3) and (5) of the Act.

LEGISLATION

4. Entitlement to DSP is to be found within the provisions of s 94 of the Act which is reproduced relevantly as follows:

“94 Qualification for DSP
(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 Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and
(d) the person has turned 16; and
(e) the person either:
(i) is an Australian resident at the time when the person first satisfies paragraph (c); or
(ii) has 10 years qualifying Australian residence, or has a qualifying residence exemption for a DSP; or
(iii) is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:
(A) is not an Australian resident; and
(B) is a dependent child of an Australian resident;
and the person becomes an Australian resident while a dependent child of an Australian resident; and
(f) the person is not qualified for disability support pension under section 94A.
(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(a) 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) 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.
...
(5) In this section:
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) prevocational training;
(c) vocational training;
(d) vocational rehabilitation;
(e) workrelated training (including onthejob 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

5. The Impairment Tables, under which impairment point ratings appear, are contained in Schedule 1B of the Act. The introduction to those Tables relevantly states:

“4. A rating is only to be assigned after a comprehensive history and examination. For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. The first step is thus to establish a working diagnosis based on the best available evidence. Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating. In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.
5. The condition must be considered to be permanent. Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years. A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.
6. In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:
what treatment or rehabilitation has occurred;
whether treatment is still continuing or is planned in the near future;
whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years.
In this context, reasonable treatment is taken to be:
treatment that is feasible and accessible ie, available locally at a reasonable cost;
where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient.
It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment, unless that treatment has associated risks or side effects which are unacceptable to the person. ...”

BACKGROUND AND EVIDENCE OF APPLICANT

6. At the time of the hearing, Mr Dedes was 51 years of age. He suffered from sleep apnoea. He had previously been employed as a valuer with the Australian Taxation Office, had not worked since March 2009 and had been made redundant in June 2010. He said that all avenues of treatment had been exhausted. Job Capacity Assessments had been conducted on 11 March 2010 and 27 April 2010. He referred to the medical report from Dr R Antic dated 5 March 2010. In that report, Mr Dedes was diagnosed as suffering from sleep apnoea, insomnia and psychogenic problems. He also referred to Centrelink medical certificates from Dr Nawzad Rasheed and Dr Kim Yong certifying that he had been unfit for work from 17 December 2009 to 17 February 2010, from 12 January 2010 to 12 April 2010, from 12 April 2010 to 12 June 2010 and from 10 June 2010 to 10 September 2010. Mr Dedes suggested that these certificates proved that he was suffering from the permanent condition of sleep apnoea, but was not suffering from psychogenic disorder, as reported by Dr Antic.
7. Mr Dedes also supplied a medical report dated 20 January 2011 prepared by Dr Nawzad Rasheed. His findings were that Mr Dedes suffered from obstructive sleep apnoea. According to its reasons for decision, this report was part of the documentary evidence before the SSAT at the time it reached its decision on 16 March 2011.
8. It appears Mr Dedes lodged a further claim for DSP early in 2011. The date of this claim is unclear but, in relation to it, on 6 July 2011 an ARO decided that his obstructive sleep apnoea did not attract an impairment rating of at least 20 points under the Impairment Tables. According to documents provided by Mr Dedes (Exhibit A1), he applied to the SSAT for review of the ARO’s decision and the matter was heard by the SSAT on 2 September 2011. On 6 September 2011, the SSAT advised him by letter that their decision regarding the claim would be deferred until 28 October 2011.
9. As occurred in the present case when before the SSAT, Mr Dedes said there had been confusion about the claim process for DSP. He said he had submitted previous claims for DSP and believed that Centrelink had not followed due process. He expected to have Centrelink’s decision changed and his qualification for DSP backdated to 2009.
10. Mr Dedes said that he had tried the CPAP mask, but found that it was uncomfortable. He had previously used a non-moveable mouth splint and could not get to sleep. He was now using a moveable mouth splint, but he still snored and he woke with pain in his jaw. He said he was unsure about surgery and was not prepared to have it. He could not find work or a job agency that was willing to deal with his disability, and he had no car available. He believed that, as there were no avenues for treatment available to him, he should be granted DSP in accordance with his claim.

CONSIDERATION

Was Mr Dedes qualified to receive DSP during the period from 11 October 2010 or within 13 weeks thereafter, namely 10 January 2011?

11. In order to qualify for DSP, Mr Dedes must satisfy the relevant requirements of s 94(1) of the Act. It is accepted (and I am satisfied) that, during the Claim Period, Mr Dedes satisfied paragraphs (a), (d), (e) and (f) of s 94(1) of the Act. It follows that he will qualify for DSP if, pursuant to s 94(1)(b) and (c):
    • (a) his impairment is (or his impairments are) of 20 points or more under the Impairment Tables; and
    • (b) he has a continuing inability to work.

Section 94(1)(b): Impairment Rating

12. Paragraphs 4 to 6 of the Introduction to the Impairment Tables in Schedule 1B set out a number of “mandatory requirements” that must be considered and satisfied before any impairment rating can be assigned to a condition (see Secretary, Department of Employment and Workplace Relations v Parry [2007] FCA 1606). Due to the operation of the Introduction, a physical, intellectual or psychiatric impairment can only be assigned impairment points if the medical condition is “permanent”, that is, a “fully documented, diagnosed condition which has been investigated, treated and stabilised” and “if in the light of available evidence it is more likely than not that it will persist for the foreseeable future”. The Impairment Tables give particular emphasis to the loss of functional capacity that a person experiences in relation to work. In using the Tables, ratings “can only be assigned for conditions where there is an associated current loss of function or where prolonged loss of function would be expected in most work situations”.
13. At the time of Mr Dedes’ claim for DSP, the conditions reported by Dr Antic were “sleep apnoea, insomnia, psychogenic problems”. In the medical details of Mr Dedes’ claim form, he reported his conditions were “sleep apnoea, insomnia, stress and anxiety”. In relation to the sleep apnoea, Dr Antic reported the current symptoms as “sleepiness occasionally during the day, insomnia at night, frustration due to inability to work”. He noted that there was “difficulty in finding comfortable and effective treatment” and that Mr Dedes had a “mandibular advancement splint”. Future treatment options were to see a sleep psychologist and to check with a sleep study “whether the mandibular splint is effective”. The effect of the condition on Mr Dedes’ ability to function was expected to significantly improve and Dr Antic noted, “Hopefully a means of controlling the sleep apnoea and insomnia will be found” (Exhibit R1 at page 66).
14. In the Job Capacity Assessment Report dated 11 March 2010, the assessor (Ms Jenna Harrington) found that Mr Dedes’ condition of obstructive sleep apnoea was permanent, but was not fully diagnosed, treated and stabilised. She noted that Dr Antic had recommended that Mr Dedes should see a speech psychologist, his current capacity to work was 15-22 hours per week and his future capacity to work within 2 years with intervention was 23-29 hours per week.
15. In the Job Capacity Assessment Report dated 27 April 2010, the assessor (Mr Andrew Leonard) found that Mr Dedes’ condition of sleep apnoea was permanent, but again was not considered to be fully diagnosed, treated and stabilised. The assessor noted that future treatment being considered was a moveable mouth splint and seeing a sleep psychologist. Mr Dedes’ current capacity to work was assessed as 15-22 hours per week, and his future capacity for work within 2 years, both with and without intervention, was assessed as 30+ hours per week. In his assessment summary, Mr Leonard said (Exhibit R1 at page 33):

“The client reported a medical condition of sleep apnoea. The client reported that he has had this condition for a number of years but has managed it well and managed to maintain a full time job. The client reported that he feels fatigued at times but is able to cope with general functioning by rising early and closing his work day by mid afternoon. The client reported that he is a ‘morning person’. ...”

16. I note that, according to the evidence available, Mr Dedes had lodged an earlier claim for DSP on 26 February 2010. In relation to his present claim lodged on 11 October 2010, there was no new evidence provided by him that suggested there had been any change to his medical conditions. A medical certificate supplied by Mr Dedes for the period 10 June 2010 to 10 September 2010 reported sleep apnoea as the only medical condition, and indicated that there was an “Exacerbation of Existing Condition”. The medical certificate indicated that Mr Dedes was “seeing respiratory physician as well as maxilofacial surgeon”. I note that, in a letter he sent to the Oral and Maxillofacial Surgery Unit at the Adelaide Dental Hospital on 31 August 2010, Mr Dedes said:

“The moveable mouth splint obtained recently is achieving better sleep scenarios.
I therefore cancel my next follow up appointment consult set for 14/10/2010.”

17. It appears that, following the Claim Period, Mr Dedes lodged a further medical report of Dr Rasheed dated 20 January 2011. That report indicated that Mr Dedes only suffered from obstructive sleep apnoea. The clinical features of the condition were “loud snoring at night time, drowsy and tired during the day”. It seems that Dr Rasheed’s report was taken into account by the SSAT when it reached its decision on 16 March 2011. Dr Rasheed noted that Mr Dedes had tried different treatment options, but that nothing helped. He reported that it was safe for Mr Dedes to drive short distances and the “ability to work is uncertain”. Dr Rasheed did not identify what the current impact of the condition was, but noted that it was uncertain what effect the condition would have on Mr Dedes’ ability to function within the next two years.
18. In Dr Antic’s medical report dated 5 March 2010 (Exhibit R1, page 67), he seems to have diagnosed Mr Dedes as having a separate psychogenic disorder with an uncertain date of onset. The then current symptoms of the disorder were insomnia and anxiety, and future treatment was in the form of control of “anxiety/insomnia by sleep psychologist”. In the Job Capacity Assessment Report dated 11 March 2010, the assessor considered that the condition of psychogenic disorder was a temporary condition and hence could not be considered as fully diagnosed, treated and stabilised. In the Job Capacity Assessment Report dated 27 April 2010, the condition was found to be temporary and hence could not be assigned an impairment rating. Future treatment was referral to a sleep psychologist. Dr Antic recommended referral to a sleep psychologist, but to date it appears that this has not occurred. Moreover, there has been no evidence to suggest that this is not an appropriate treatment option. The fact that this was not undertaken suggests that the condition was not fully diagnosed, treated and stabilised throughout the Claim Period. In any event, Mr Dedes appeared convinced that he was not suffering from a psychogenic disorder.
19. It is Centrelink’s contention (which I accept, having regard to all the material available) that the weight of medical evidence indicates that Mr Dedes’ conditions of sleep apnoea and psychogenic condition (as diagnosed by Dr Antic) and his condition of obstructive sleep apnoea (as diagnosed by Dr Rasheed) have not been fully investigated, treated and stabilised in, or in respect of, the Claim Period.

Section 94(1)(c): Continuing Inability to Work

20. Centrelink has contended that it is only relevant for me to consider whether Mr Dedes had a continuing inability to work at the time of his claim or within 13 weeks thereafter if I am satisfied that his impairment(s) rated at least 20 points under the Impairment Tables. As I have not done this, it is strictly not necessary for me to consider whether Mr Dedes had a continuing inability to work during the Claim Period. However, for completeness, I will express my view on whether, during the Claim Period, Mr Dedes had a continuing inability to work. I note that, in considering this issue, I am not (upon review) to have regard to the availability to Mr Dedes of work in his locally assessable labour market (s 94(3)(b) of the Act), and “work” means work that exists in Australia, even if not within Mr Dedes’ locally accessible labour market.
21. Under s 94(1)(c)(i) of the Act, when read with s 94(2), a person has a continuing inability to work because of an impairment if the Secretary (or the Tribunal, upon review) is satisfied that the impairment was of itself sufficient to prevent a person from doing any work within the next two years, and the impairment was of itself sufficient to prevent the person from undertaking educational or vocational training or on-the-job training during the next two years. Under s 94(5) and in Mr Dedes’ case, “work” means work that is for at least 15 hours per week in Australia at award wages or above. In Secretary, Department of Social Security v Pusnjak [1999] FCA 994, Drummond J (in the Federal Court) considered the operation of s 94(2) of the Act. At paragraphs 31 and 32 of his decision, the learned Judge said:

“31 If, as I think it should be, s 94(2)(a) directs the Secretary to confine his determination to whether the impairment of itself is sufficient to prevent the person from doing any work that may be available anywhere in Australia, being work for which that particular person is already fitted without first requiring some form of occupational retraining, s 94(2)(b) then, logically enough, moves on to identifying what impact the availability of occupational retraining is to have on the eligibility of the particular applicant for a disability support pension who surmounts the first hurdle of s 94(2)(a).
32 Effect will be given to the intention of legislation if the Secretary asks the following questions as he works his way through the various paragraphs of s 94(2):
As to s 94(2)(a) Does the impairment of itself, ie, considered in isolation from other matters that may influence his attitude to working, have such an impact on the particular claimant's capacity for work that it prevents him from doing work available anywhere in Australia, being work of a kind which the particular applicant is, by reason of his existing work skills and experience, capable of performing, without the need for retraining? If so:
As to s 94(2)(b)(i) Is the impairment of itself sufficient to prevent the particular pension claimant undertaking, ie, commencing, during the next two years, retraining of a kind that is available to him and which would fit him for a class of work available in Australia that he currently lacks the skills or experience to perform, even if unimpaired?
If so, the applicant will satisfy the Secretary that he has the requisite continuing inability to work. ...”

22. The concept of continuing inability to work is not confined to a claimant’s ability to undertake work for which they are trained and skilled, but rather their capacity to undertake “any work”. In relation to the phrase “any work” in s 94(2)(a) of the Act, I note that this phrase ought not be qualified to meet “suitable work” (see Re Crossland and Secretary, Department of Family and Community Services [2004] AATA 864 at paragraph [34]), and the phrase does not exclude types of employment that a person might consider insufficiently intellectually challenging or are, in the person’s view, insufficiently challenging (see Croker v Secretary, Department of Employment and Workplace Relations [2007] FCA 1635 at paragraph [27]).
23. In Mr Dedes’ case, in relation to his claim for DSP, Job Capacity Assessments were carried out. I recognise that a Job Capacity Assessment is not about diagnosis or prognosis of a person’s medical condition. Rather, its focus is drawing on the information provided by treating doctors and specialists when making assessments and applying the assessor’s specialised knowledge and experience in identifying barriers to employment, interventions, available programs and suitable occupations to determine a person’s impairment rating and work capacity. The Job Capacity Assessment Report by Ms Harrington dated 11 March 2010 indicates that Mr Dedes had an assessed current and future work capacity of at least 15-22 hours per week, and with intervention his work capacity was 23-29 hours per week. The Job Capacity Assessment Report by Mr Leonard dated 27 April 2010 indicates that Mr Dedes had an assessed current and future work capacity of at least 15-22 hours per week, and with intervention his work capacity would be 30+ hours per week. In both cases, the Reports indicated that there were no permanent conditions that were fully diagnosed, treated and stabilised.
24. A letter from Dr Vinh-An Phan, a Thoracic RMO at Royal Adelaide Hospital, dated 30 September 2009 (Exhibit R1, page 144) contains a history of Mr Dedes’ constructive sleep apnoea and anxiety. The letter notes that Mr Dedes:

“states that the majority of his symptoms are occurring in the late afternoon including daytime somnolence as well as poor concentration. He has no issue staying awake from early morning to early afternoon”.

This evidence is consistent with evidence recorded in a referral letter from Dr Kim Yong dated 13 November 2008 (Exhibit R1, page 146). Both of these medical practitioners recommended early starting and finishing hours at work for Mr Dedes. Furthermore, Dr Antic reported in a letter to Dr Yong relating to Mr Dedes dated 8 January 2010 (Exhibit R1, page 174) that:

“In the afternoons, he has a problem with sleepiness and needs a rest. Because of this he has been starting work earlier in the morning and this he thinks has avoided any problems.”

25. Having regard to all the evidence, I am satisfied that Mr Dedes had the capacity to work for at least 15 hours per week on wages that are at or above the relevant minimum wage. As reported by his treating doctors, this may require employment arrangements or interventions which enable him to start and finish work earlier. It appears he would still have no problem in doing this.

CONCLUSIONS

26. In my view, as Mr Dedes’ conditions of obstructive sleep apnoea and psychogenic disorder were not fully diagnosed, treated and stabilised when he lodged his claim for DSP and during the Claim Period, he requirements of Schedule 1B of the Act are not satisfied and it is not possible to assign an impairment rating under the Impairment Tables pursuant to s 94(1)(b) of the Act.
27. Moreover, in respect of Mr Dedes’ claim for DSP, I find that he does not have a continuing inability to work and thus does not satisfy the requirements of s 94(1)(c)(i) of the Act.
28. It follows that he was not qualified for DSP at the time he made his claim and during the Claim Period.

DECISION

29. For the reasons set out above, the Tribunal affirms the decision under review.

I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne

Signed: .....................................................................................

Associate

Date of Hearing 16 August 2011

Date of Decision 16 December 2011

Advocate for the Applicant Self-represented

Advocate for the Respondent Ms J Edwards

Program Litigation and Review Branch