Bartone and Secretary, Department of Social Services (Social services second review)
[2021] AATA 3578
•8 October 2021
Bartone and Secretary, Department of Social Services (Social services second review) [2021] AATA 3578 (8 October 2021)
Division:GENERAL DIVISION
File Number: 2020/3836
Re:Mr Domenico Bartone
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Ms A E Burke AO, Member
Date:8 October 2021
Place:Melbourne
Pursuant to s 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision under review and remits the matter for reconsideration with a direction that the Applicant satisfies sections 94(1)(a), (b) and (c) of the Social Security Act 1991 (Cth)..
.............................[sgd]...........................................
Ms A E Burke AO, Member
Catchwords
SOCIAL SECURITY – application for disability support pension – whether qualified – whether insufficient medical evidence provided – whether impairment attracts rating of 20 points or more under Impairment Tables – where program of support had not been undertaken – decision under review set aside and remitted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)Secondary Materials
Guide to Social Security Law, Department of Social Services
REASONS FOR DECISION
Ms A E Burke AO, Member
8 October 2021
INTRODUCTION
Mr Bartone (the Applicant) is seeking a second tier review of the decision made by the Secretary, Department of Social Services (the Respondent) to refuse to grant him a Disability Support Pension (DSP), pursuant to section 94 of the Social Security Act 1991 (Cth) (the Act).
Mr Bartone lodged a claim for DSP on 23 April 2019. On 8 May 2019, Centrelink rejected Mr Bartone’s claim for DSP, as he did not have an impairment rating of 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables). On 25 February 2020, a Centrelink Authorised Review Officer (ARO) affirmed the decision.
Mr Bartone sought review of the decision by the ARO at the Social Services and Child Support Division of this Tribunal (AAT Tier 1), which affirmed the decision on 20 May 2020. Centrelink is the service provider for the then Department of Human Services, now Services Australia.
The application was heard via telephone on 7 September 2021. Mr Bartone was self- represented and Ms Jasmine Forsyth, Solicitor at Mills Oakley Lawyers, appeared for the Respondent. Mr Bartone and Dr Theresa Marasco, Clinical Psychologist, gave evidence under affirmation.
THE ISSUES IN CONTENTION
The issue in contention is whether Mr Bartone was qualified for a DSP from the date of his claim, 23 April 2019, to a date 13 weeks thereafter, 23 July 2019 (the qualifying period). This is in accordance with section 4(1) of Schedule 2 of the Social Security (Administration) Act 1999 (the Administration Act).
The Tribunal must consider whether Mr Bartone had:
(a)a physical, intellectual or psychiatric impairment(s);
(b)a fully diagnosed, treated and stabilised condition(s) which results in impairments attracting 20 points or more under the Impairment Tables; and
(c)a continuing inability to work.
BACKGROUND
Mr Bartone is a 54-year-old male of Italian descent who lives alone in his family home, which is currently on the market following the death of his mother. Mr Barone had been his parents’ full-time carer for 18 years. Prior to this, Mr Bartone had worked from 1989 as an administrative officer for Victoria Legal Aid, until he was made redundant in 1996. He completed a tourism course in 1997-1998 but could not find work in the tourism sector. Mr Bartone subsequently worked for 12 months performing data entry through a labour hire firm. Mr Bartone last performed paid work in 2005 for various supermarkets. Mr Bartone cared full-time for his father from 2001 until his father passed away in 2009 and subsequently for his mother until she was placed in a nursing home in 2019 prior to her death in 2020.
On 23 April 2019, Mr Bartone made an application for DSP citing his medical conditions as depression, cervical spine spondylosis, lumbar spine (L5/S1) spondylosis, mild compression, osteoarthritic bilateral knee, anxiety and obsessive-compulsive disorder.
On 30 April 2019, Centrelink undertook a medical assessment on Mr Bartone’s DSP application. Centrelink determined that Mr Bartone was manifestly medically ineligible as his conditions were not fully diagnosed, treated, and stabilised at the date of his claim. The assessor (a physiotherapist) found:
The spinal condition is confirmed by Dr Sam Zagarella, GP, in the medical report dated 20/3/2019 the condition cannot be assessed as fully treated and stabilised at present as the medical evidence indicates that the claimant has not engaged in all reasonable treatments and that further treatment is pending including a referral to an orthopaedic surgeon. Such a review and specialist management is likely to result in significant functional improvement within the next 2 years.
The knee condition is confirmed by Dr Sam Zagarella, GP, in the medical report dated 20/3/2019 and Dr Frank Laska, rheumatologist in the medical report dated 12/2/2019. The condition cannot be assessed as fully treated and stabilised at present as the medical evidence indicates that the claimant has not engaged in all reasonable treatments and that further treatments have been recommended including continuing with medication, increase the strength of muscular supports reduce excess body weight in consider the resumption of Synvisc injections. Such treatments are likely to result in functional improvement within the next 2 years.
The condition of depression is confirmed by Dr Sam Zagarella, GP, in the medical report dated 20/3/2019 and Dr Theresa Marasco, clinical psychologist, in the psychology report dated 2/4/2019. The condition cannot be assessed as fully treated and stabilised at present is the medical evidence indicates that the claimant recently engaged in psychological counselling and that further counselling has been recommended. Such treatments are likely to result in functional improvement within the next 2 years.
The condition of gastro-oesophageal reflux disease (GORD) is confirmed by Dr Sam Zagarella, GP, in the medical report dated 20/3/2019. The condition cannot be assessed as fully treated and stabilised at present as the medical evidence indicates that the claimant has not engaged in all reasonable treatments and that further treatments have been recommended including a review with a gastroenterologist. Such a review and specialist management are likely to result in functional improvement within the next 2 years.
Based on the available medical evidence the conditions cannot be assessed as fully treated and stabilised for the purposes of DSP.
On 8 May 2019, Centrelink rejected Mr Bartone’s claim for DSP as he did not have an impairment rating of 20 points.
On 17 February 2020, a second medical assessment of Mr Bartone’s DSP application was undertaken as he had supplied additional medical evidence. Centrelink again determined that Mr Bartone was manifestly medically ineligible as his conditions were not fully diagnosed, treated and stabilised at the date of his claim. The assessor (a physiotherapist) found:
Disability Support Pension Medical Eligibility Assessment Recommendation dated 30/4/2019 noted manifestly medically in eligible.
The claimant submitted further medical evidence to support the claim.
The osteoarthritis of the spine and knees is confirmed by Dr Frank Laska, rheumatologist, 29/1/2019 and Dr Sam Zagarella, GP, 6/6/2019. Osteoarthritis of the knees is also confirmed by Dr Anthony Bonomo, orthopaedic surgeon, 1/4/2019. The conditions cannot be regarded as fully stabilised as the claimant has not undertaken or completed reasonable treatment for the conditions and further treatment has been recommended including orthopaedic reviews, optimisation of medications, and physiotherapy. Such treatments are likely to result in significant functional improvement in the next 2 years.
The condition of depression is confirmed by Dr Theresa Marasco, clinical psychologist, 20/6/2019 and Dr Sam Zagarella, GP, 6/6/2019. The condition cannot be assessed as fully treated and stabilised at present as the medical evidence indicates that further psychotherapy has been recommended, and the claimant has been referred for a psychiatric assessment. Such treatments are likely to result in functional improvement within the next 2 years.
The condition of gastro-oesophageal reflux disease (GORD) is confirmed by Dr Sam Zagarella, GP, in the medical report dated 20/3/2019. It is noted that the claimant has undergone investigations (gastroscopy/colonoscopy) in the discharge summary, John Fawkner Private Hospital, 28/5/2019. However, there is no evidence of confirmation of diagnosis, current symptoms, treatment, prognosis or details of impact on functioning. Based on the available medical evidence the condition cannot be assessed as fully treated and stabilised for the purposes of DSP.
On 25 February 2020, a departmental ARO affirmed the earlier Centrelink finding on internal review. In a letter to Mr Bartone, the ARO stated the following:
I have found your conditions of knee disorder, spinal disorder, mental health disorders, gastro-oesophageal reflux disease and learning difficulty cannot be considered permanent.
Knee disorder
Mr Wade (physiotherapist) reported on 26 March 2018 that you have significant degenerative changes in your knee which are likely to progress to the point where you will require a knee replacement.
Dr Laska (rheumatologist) reported on 12 February 2019 that an MRI revealed there has been little change in your knee since 2013. The doctor reported you have a small Baker’s cyst and there are no loose bodies in the joint. The doctor suggested the treatment of a continuation of nutriceuticals, to increase the strength of muscular supports and consider resumption of Synvisc injections.
Dr Bonomo (orthopaedic surgeon) reported on 1 April 2019 that your left knee has been problematic for a long time and to a lesser extent your right knee is also affected. The doctor advised you have had 4 arthroscopies on your left knee and 1 on the right. However, you did not find these procedures helpful and the last one was 10 years ago. You have pain in your knee, are unstable when you use stairs and tire easily. You use a brace that offers you some support. The doctor reported your knee is arthritic, however, you do not have end stage disease and should steer away from joint replacement. The doctor reported that other modalities including physiotherapy and medication can be helpful and advised of further review in 6 months’ time.
Based on the available evidence, I am satisfied that your condition is diagnosed. However, as you have treatment options which may improve your functionality within the next 2 years, I cannot consider the condition to be fully treated and stabilised for the purposes of Disability Support Pension. As such, I am unable to assign an impairment rating for this condition.
Spinal disorder
Dr Blecher (radiologist) reported on 11 July 2008 that you underwent a CT scan of your cervical spine which revealed that you have mild disc degenerative changes at C4-5 and C5-6.
Dr Taranto (radiologist) reported on 8 January 2010 that you had a CT scan of your lumbar spine which revealed you have some degenerative spondylosis at L5/S1 with broad disc bulge and posterolateral disc protrusions which cause severe foraminal encroachment and marked compression on exiting L5 nerve roots.
Mr Wade reported on 16 March 2018 that you have quite severe disc degeneration and disc bulges in your lumbar spine, which affects your range of motion and causes pain. Mr Wade advised that you have a restricted range of motion in your neck.
Dr Laska advised on 29 January 2019 that you have a clearly demonstrated loss of disc space at the L5/S1 level. The doctor advised you are undertaking very basic physical treatments under guidance by a physiotherapist.
You have not provided evidence you have had specialist intervention for your back condition (such as referral to a neurosurgeon) or provided detail regarding the functional impact or the prognosis of the condition.
Based on the available evidence, I am satisfied that your condition is diagnosed. However, as you have treatment options which may improve your functionality within the next 2 years, I cannot consider the condition to be fully treated and stabilised for the purposes of Disability Support Pension. As such, I am unable to assign an impairment rating for this condition.
Mental health disorders
The referral letter from Niddrie Medical dated 4 June 2019 indicates that you were referred to Dr Vidanagama (psychiatrist). The letter advised you experience panic, anxiety and aggressive outbursts along with excessive behaviours associated with OCD. The referral advised you are concentrating on working with your psychologist to address your long-term mental health issues.
Dr T. Marasco (clinical psychologist) reported on 20 June 2019 that you have symptoms of major depression and anxiety with panic attacks. The doctor reported that you had attended 6 sessions for psychological treatment in the form of supportive therapy, solution focussed strategies and cognitive behaviour therapy. The doctor advised that you would benefit from continuing treatment with the aim of further improving your symptoms.
Dr Zagarella (general practitioner) reported on 6 September 2019 that you have OCD, depression, anxiety and maladaptive personality traits. The doctor reported that your symptoms include panic attacks, depression, anxiety, verbal aggression and OCD symptoms and that you had seen a psychiatrist. However, a report from a psychiatrist has not been provided.
Based on the available evidence, I am satisfied that your condition is diagnosed. However, as you are undertaking treatment which may improve your functionality within the next 2 years, I cannot consider the condition to be fully treated and stabilised for the purposes of Disability Support Pension. As such, I am unable to assign an impairment rating for this condition.
Gastro-oesophageal reflux disease (GORD)
The referral letter from Niddrie Medical dated 4 June 2019 lists GORD as a condition you have been diagnosed with.
You have not provided any evidence of treatment, any specialist intervention, the symptoms, the functional impacts or a prognosis of the condition.
Based on the available evidence, I am satisfied that your condition is diagnosed. However, I cannot consider the condition to be fully treated and stabilised for the purposes of Disability Support Pension. As such, I am unable to assign an impairment rating for this condition.
Learning disability
Dr Zagarella (general practitioner) reported on 6 September 2019 that you have cognitive delay and learning difficulties. The doctor reported that you require assistance when learning new activities or new concepts. You have required a structured learning program since primary school.
You have not provided diagnostic evidence from a qualified medical practitioner in regard to this condition. As such, I cannot find the condition to be fully diagnosed, treated and stabilised for the purposes of Disability Support Pension. As such, I am unable to assign an impairment rating for this condition
As you do not have an impairment rating of at least 20 points, you are not qualified for Disability Support Pension. I have, therefore, decided that the decision to reject your claim for Disability Support Pension was correct.
On 20 May 2020, AAT Tier 1 affirmed the ARO’s decision to reject Mr Bartone’s DSP claim. AAT Tier 1 awarded Mr Bartone an impairment rating of 10 points, having allocated:
(a)5 points under Table 4 – Spinal Function as Mr Bartone experienced chronic pain which was aggravated by back movements such as bending;
(b)5 points under Table 3 – Lower Limb Function as there was at least mild functional impairment of activities involving use of the lower limbs and Mr Bartone had some difficulty walking short distances and is unable to stand for longer periods; and
(c)Nil impairment points under Table 5 – Mental Health Function as the condition was not fully treated and fully stabilised at the time of application or in the 13 week period thereafter.
The Member did not address whether Mr Bartone had a continuing inability to work as he found that he did not satisfy section 94(1)(b) of the Act, and therefore considered he was not qualified for the DSP at the date of his claim.
On 24 June 2020, Mr Bartone sought a review of the AAT Tier 1 decision by this division of the Tribunal (AAT Tier 2), as he disagreed with the decision. In his application to AAT Tier 2, he stated:
Decision in my opinion has been hastefully made in favour of Services Australia. My illnesses of Depression, OCD, Anxiety Disorder with related Mental Disorder, Spinal Disorder, & Knee Disorder are deemed to be permanent with Centrelink Medical Certificates and Medical Reports from Specialists reporting that any Level of Improvement would be slight. The AAT have queried my learning difficulty. I have had this since high school that tasks would need to be repeated constantly to get a view of learning. Failing HSC in 1985 dismally is an example.
I am very surprised that Tribunal Person who was a Doctor, left me with two issues being quite perplexed of decision - Initially was asked about what illnesses are more of an issue Muscular/Skeletal or Mental, I responded they are mental Issues but its not to say that my Muscular Issues aren't a problem. The line of questioning seem to be directed in Muscular/Skeletal & not Mental?? The second issue is that he agrees with Services Australia that my Illnesses aren't Permanent? Well I've had Knee Disorder since 1984 - 36 Years, Depression diagnosed in 2006 - 14 Years, but could of been longer, Spinal Disorder 2007. If a range of 13 years for Spinal Disorder, 14 Years for Depression and 36 Years for Left Knee Disorder isn't deemed PERMANENT, I would like to know what is.
Documents of my Illnesses only were accepted as evidence upto my Psychiatrist Report of 8 August 2019, which in my view have left me at a disadvantage as further reports were not admissable, As noted to the AAT, In March 2019 I had a Car Accident which has left me with pain in my Neck & Hands after being hit from behind, which has left issues not considered, which have shown a Disc prolapse in Neck in addition to Back Disc Prolapse Evidence provided to AAT by previous GP reports & associated film investigations. Dr. Bonomo my Orthopaedic Specialist who I've been seeing has noted in films that I have an issue with Left Hip, which was not present prior. An Occupational Therapist has been seeing me since September 2019 by both telephone & house visits. A SECOND ASSESSMENT by same Psychiatrist I saw in August 2019 was sourced in March 2020. My psychologist has provided a more up to date report & assessment of how my progress since initial letters in June 2019. So as one can see that " a lot of meat has been left out of the sandwich" which does not have a true reflection of my illnesses. Also a decision says it was made on Wednesday 20 May 2020, a day after I provided copy of Psychiatrist Report & correct dated letter of Physiotherapist Letter Chris Wade. One day to make a decision?? I only received notification of decision of Tribunal Thursday 28 May,2020. Looking from my point of view,, Decision Date should be Thursday 28 May 2020 & NOT Wednesday 20 May 2020 as indicated in the 21 Page Decision. A copy of email can be sent for your perusal & further consideration.
I have many concerns on how impairment ratings are used to assess DSP applications & Reviews. They are using a "ONE SIZE FITS ALL" & if you don’t fit in their categories, it's just your bad luck. Each application is different & should be judged individually. Just because you're not in a Wheelchair, doesn't mean you don't have a disability. After being a Primary Carer for both parents has left Mental Scars which cannot be changed as the role indicated the job at hand was to Provide a Level of care to them. It makes reference to being a carer is now non existent. That to some degree is incorrect. There are times I need to bring in clean clothes as the Laundry service at the Nursing Home have ruined clothes, colours washing out & wool undergarments turning dark just naming a few examples that all things cannot be left to the Nursing Home. Worrying about your state of affairs, wasn't the issue. Two Options were only available; Either you take on the role of being a Primary Carer and your issues take a back seat, which includes your own health OR the other option was to put parents in AGED C ARE against their will which really wasn't an option. So many of our population is making the selfless decision, to take on that role, with the Emotional consequences at your own peril, One wonders why there is so much carer burnout in society??
I make note the certain drugs have been changed, which according to recent decision are incorrect. Disperidone for OCD was trailed briefly but as the drowsiness had increased & became an increased risk, these tablets were stopped immediately by GP. Also Setraline has now been changed to a drug name called CYMBALTA to assist with Depression & Pain. I have been on them for at least a month with hardly no improvement. There have been changes to my heart medications which again is a new illness. Please advise me if my GP needs to advise you with an up to date list. It makes reference to on Page 8 that there is reasonable prospect for further improvement. This statement seems very optimistic given that in 14 years that there has been little improvement, I cannot see how a link of reasonable prospect of improvement can be made.
It makes reference to impairment tables that evidence needs to persist for more than 2 years? I have carried some of the above illnesses for at least 13 to 36 years - when it comes to Knee Disorder - definitely been more than 2 years and satisfied the criteria! How the Tribunal assigned ONLY 5 points for my KNEE DISORDER in my view is baffling. I have tried all conservative therapies with the smallest amount of improvement which happened only in one year. The only other option is KNEE REPLAC EMENT which at 52 years no Orthapaedic Surgeon will undertake. As for a PARTIAL OR FULL KNEE REPLAC EMENT one still has to go under the knife every 5-10 years to make sure no loose bits become an issue. The only time if surgery of this nature is considered, if you have a life threatening disease. One of my family members is a doctor, so its not without knowing what I'm referring to.
I notice that I received a total score of 10 points - 5 points for knee pain & 5 for back pain. I think that this point score is quite harsh & to say that I disagree with decision is an understatement. There have been no points awarded for my Depression & Mental Issues which I cannot agree with.. There is a 2nd Psychiatrist Report with a more recent letter from my Psychologist which will hopefully be reconsidered. In addition there are issues of Neck Disc Prolapse & C T Scans/ MRI left Hip. Finally once all letters , reports & films, etc would become available, I would provide copies, for your perusal & further reconsideration. Prior to Corona Virus $550 per fortnight to cover living, medical expenses was payable to Jobseeker recipients. This scenario left one scraping the bottom of the barrel. Seeing Specialists & Therapists, costs money. Even with Private Health Insurance, the rebates were quite poor. So how one was left to survive?
RELEVANT LEGISLATION AND ISSUES
Section 94(1) of the Act provides that a person is qualified for DSP 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;…
Paragraph 6(3)(a) of the Impairment Tables requires that an impairment rating can only be assigned if the condition causing that impairment is “permanent”.
Paragraph 6(4) of the Impairment Tables states that 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
(c) the condition has been fully stabilised; and
(d) the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
The introduction to each relevant Impairment Table stipulates that Self-report of symptoms alone is insufficient and There must be corroborating evidence of the person’s impairment.
In determining whether a condition has been “fully diagnosed” by an appropriately qualified medical practitioner for the purposes of paragraphs 6(4)(a) and (b), paragraph 6(5) of the Impairment Tables states that the following must 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.
As to the meaning of “fully stabilised”, paragraph 6(6) of the Impairment Tables states:
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.
For the purposes of paragraph 6(7) of the Impairment Tables, “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.
The Impairment Tables are function-based, rather than diagnosis-based. They describe functional activities, abilities, symptoms and limitations. They are designed to enable the assignment of ratings to determine the level of functional impact of an impairment and not to assess conditions.[1]
[1] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 s 5(2).
Paragraph 6(1) of the Impairment Tables sets out that when assessing functional capacity, a person’s impairment:
must be assessed on the basis of what a person can, or could do, not on the basis of what a person chooses to do or what others do for the person.
Paragraph 6(8) of the Impairment Tables further provides that the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating can be assigned. In other words, a person may be diagnosed with a condition but, with appropriate treatment, the impairment from the condition may not result in any functional impact.
Therefore, it is necessary to consider the Applicant’s medical conditions with reference to the applicable Impairment Tables.
Part 2 of the Social Security (Active Participation for Disability Support Pension) Determination 2014 (POS Determination) lists a number of exemptions to the general requirements that a person must participate in a program of support for at least 18 months, in cases where a person does not have a severe impairment.
The POS determination relevantly provides:
Part 2—Requirements for active participation
7 Requirements for active participation
…
(4) This subsection is satisfied in relation to a person and a program of support if:
(a) the program of support was terminated before the end of the relevant period; and
(b) the program of support was terminated because the person was unable, solely because of his or her impairment, to improve his or her capacity to prepare for, find or maintain work through continued participation in the program.
(5) This subsection is satisfied in relation to a person and a program of support if:
(a) At the end of the relevant period, the person is participating in the program of support; and
(b) The person is prevented, solely because of his or her impairment, from improving his or her capacity to prepare for, find or maintain work through continued participation in the program.
THE TRIBUNAL’S CONSIDERATION AND FINDINGS
Evidence before the Tribunal
The evidence before the Tribunal included documents provided by the Respondent under section 37 of the Administrative Appeals Tribunal Act 1975, referred to as the “T documents”. Mr Bartone also lodged additional medical reports.
Does Mr Bartone have a physical, intellectual or psychiatric impairment?
Section 94(1)(a) of the Act provides that to qualify for DSP in the first instance, a person must suffer from an impairment.
The Respondent accepts that Mr Bartone is suffering from impairments including depression, cervical spine spondylosis, lumbar spine spondylosis, mild compression osteoarthritic bilateral knee, anxiety and obsessive-compulsive disorder. The Tribunal finds that Mr Bartone was living with these impairments during the qualifying period and therefore meets the requirements of section 94(1)(a) of the Act.
As noted above, section 94(1)(b) of the Act states that the second DSP qualification requirement is that the person’s impairment rating is 20 points or more under the Impairment Tables.
Does Mr Bartone have medical conditions that result in impairments that can be rated 20 points or more under the Impairment Tables?
Spinal Condition
On 4 March 2008, Dr P Lau, radiologist, reported on a right shoulder X-ray and ultrasound, concluding:
1. No recent bony abnormality nor malalignment of the right shoulder region is seen.
2. Right subscapularis tendinosis is noted.
3. Right supraspinatus tendinosis/chronic small partial thickness tear is likely.
4. No further rotator cuff tendon abnormality is seen on the right side.
5. No ultrasound evidence of right subacromial bursitis.
6. Limited range of movement of the right shoulder region is noted, ? underlying adhesive capsulitis.
On 25 February 2009, Dr O Chiu, radiologist, reported on a right shoulder ultrasound, concluding:
1. Thinning of the distal and anterior aspect of the supraspinatus tendon, without a definite tear: Heterogeneity of the remainder of the supraspinatus tendon - ? a degree of tendinosis,
2. Minor bursal wall thickening at the subdeltoid-subacromial bursa, associated with impingement, compatible with bursitis in the appropriate clinical setting. If indicated, sonographic guided injection with steroid and local anaesthetic may be of therapeutic benefit.
On 20 November 2008, Dr A Taranto, radiologist, reported on a CT lumbar spine noting chronic lumbar spine degeneration.
Findings:
LI/L2: No disc prolapse.
L21L3: No disc prolapse.
L3/L4: No disc prolapse.
L4/L5: Mild lumbar canal stenosis due to broad diffuse circumferential disc bulge causing mild bilateral foraminal stenosis and slight narrowing of the subarticular recesses.
L5/S1: Marked disc degeneration with gas within the disc space. Broad posterolateral disc bulging causing moderate bilateral foraminal stenosis and narrowing of the subarticular recesses compromise to exiting left L5 and bilateral traversing S1 nerve roots.
Moderate bilateral LS/S1 facet joint arthritis.
No pars defect.
Conclusion:
Mild lumbar canal stenosis at L4/5 and L5/S1. Bilateral L5/S1 foraminal stenosis and narrowing of the subarticular recesses. Compromising exiting left L5 and contacting the traversing S1 nerve roots bilaterally.
On 3 July 2008, Dr Taranto performed an ultrasound guided right subacromial bursal steroid injection, reporting:
Findings: Routine ultrasound guided right subacromial bursal steroid injection was performed using a 22 gauge needle from the anterior and superior approach. A combination of 1ml of 0.5% Marcain and one ampule of Celestone was given. Single pass and no immediate complications.
On 8 January 2010, Dr Taranto reported on a CT lumbar spine finding:
The vertebral alignment is normal. There is no destructive bone lesion seen.
L1/L2:No disc prolapse.
L2/L3: No disc prolapse.
L3/L4: No disc prolapse. Mild bilateral facet Joint arthritis.
L4/L5: Mild diffuse circumferential disc bulge causing mild lumbar canal stenosis, not significantly changed since 20th November 2008.
Mild bilateral foraminal encroachment at this level.
L5/S1: Severe degenerative spondylosis with almost complete loss of disc space associated with gas and broad circumferential disc bulge. Small posterior central and posterolateral disc protrusions cause severe bilateral foraminal encroachment, compressing the exiting L5 nerve roots and contacting the traversing S1 nerve roots within the subarticular recesses.
CONCLUSION:
Severe degenerative spondylosis at L5/S1 with broad disc bulge and posterolateral disc protrusions causing severe foraminal encroachment and marked compression on exiting L5 nerve roots. This appears to have progressed mildly compared with the previous CT dated 20th November 2008.
On 26 March 2018, Mr Chris Wade, physiotherapist, provided a report for an earlier DSP claim of Mr Bartone’s, he reported:
The above gentleman has attended my clinic for Physiotherapy treatment intermittently since 2001. During this time he has undergone post-operative rehabilitation following multiple surgeries to his left knee. He has had right shoulder injury involving tendons of rotator cuff muscles and he has neck and back disc related injuries.
In his lower back he has quite severe disc degeneration and disc bulges in the lower levels which again significantly impact on his functional capabilities and results in on going pain and stiffness restricting his range of movement. In his neck he also has restricted range of movement due to degenerative changes. This degeneration of his spine is likely to progress as he ages and significantly impact on his daily living on an ongoing basis.
On 6 June 2019, Dr Sam Zagarella, Mr Bartone’s general practitioner since 2008, diagnosed Mr Bartone with permanent CxDDD, L5/S1 Spondylosis c DDD Mild N Compression L5/S1; severe L L4; L Knee OA resulting in symptoms of severe knees spondylosis and lower back pain (both chronic and severe). Treatment was noted as: pain management, injections with cortisone within joints and Synvisc knee injections.
The Respondent accepts that Mr Bartone’s long-standing spinal condition was fully diagnosed at the qualification period.
However, the Respondent contended it was not fully treated or fully stabilised at the qualification period as there was a lack of corroborative evidence going to the treatment of Mr Bartone’s spinal condition. Specifically, the Respondent argued there was no evidence of specialist review or treatment by way of pain management. Therefore, the Respondent contended, an impairment arising from Mr Bartone’s spinal condition cannot be assigned a rating under the Impairment Tables.
Having considered all the evidence before it, the Tribunal is satisfied that Mr Bartone’s long standing spinal disorder was fully diagnosed during the qualifying period, relying upon findings from CT scans in 2008, and numerous reports from his general practitioner and physiotherapist.
The Tribunal found that, given the severity of Mr Bartone’s long-term shoulder and back pain, his condition was fully treated and stabilised during the qualification period as he had been undertaking physiotherapy treatment for many years, had numerous ultrasound guided steroid injections, had undertaken a pain management course, and at times, had taken analgesia for pain relief.
The Tribunal concurred with the findings of the AAT Tier 1 that Mr Bartone’s spinal condition was having a mild impact on his functional impairment during the qualification period as he had chronic pain which was aggravated by back movements such as bending and therefore experienced difficulty with activities such as bending to knee level and straightening up again.
The Tribunal relied upon Mr Bartone’s evidence that he is (and was) in constant pain and has difficulty with standing, advising the Tribunal I couldn’t even stand after washing dishes without rushing to couch to lie down. Mr Bartone confirmed his evidence to the AAT Tier 1 had been accurately recorded by the Member, it stated:
He had a work accident when he was working in a supermarket in 2006. He has been taking pain medication since his early adult life.
He now does very little each day. He is able to get dressed, but experiences pain when undertaking tasks requiring bending such as tying up shoelaces or putting on socks. He is able to use the bathroom independently. One of the bathrooms in the house has grab rails in the shower, but he is uncomfortable using the hand-held shower head, so he uses the other bathroom. He used to use a chair when having his shower, but no longer does this. He washes his hair in the basin. He is fearful when standing, as his legs can give way and when this occurs he will fall onto his backside. This can happen two or three times each week. He also finds that he becomes fatigued quickly when doing moderate physical activities, and will have to go and have a lie down for about 20 or 30 minutes.
He prepares his own meals, but will usually choose foods which are easy to prepare. He is able to load and unload the dishwasher, but has difficulty using the oven because of arthritis in the hands. He is able to wash his clothes using the washing machine, which is a top loader. He does not hang clothes on the line, but has a clothes horse. He will occasionally iron clothes.
The house has a garden, but he has had to arrange for the lawn to be mowed by others. He does not water the garden.
The Tribunal found this was corroborated by the evidence of Mr Bartone’s physiotherapist who opined that the lower back condition impact on his functional capabilities and results in on going pain and stiffness restricting his range of movement.
The Tribunal therefore awards Mr Bartone 5 points under Table 4 (Spinal Function) of the Impairment Tables in respect of this condition. The Tribunal did not consider a higher rating was warranted for this condition as Mr Bartone did not report he was unable to sit in a car for at least 30 minutes.
Knee Condition
On 17 June 2009, Dr A Taranto, radiologist, reported on a bilateral knees X-ray, concluding:
1. Moderate bilateral knee joint osteoarthritis, most marked involving the medial and lateral compartments of the left knee joint. Mild bilateral patellofemoral joint arthritis.
2. A small ossicle within the sort tissues anterior to the medial femoral condyle.
3. Small lucent subcortical lesion at the distal medial left femoral condyle. Correlation with CT recommended
On 26 March 2018, Mr Wade provided a report for an earlier DSP claim of Mr Bartone’s, he reported:
In more recent times he has returned for treatment in 2018 which is ongoing at present. The current condition of his left knee is such that he has significant degenerative changes involving the joint surfaces as well as meniscal degeneration. Together these conditions severely impact on his functional capabilities and is likely to continue to progress over time to the point where he may at some stage require total knee replacement.
On 30 January 2019, Dr Frank Laska, rheumatologist, provided an extensive report to Mr Bartone’s general practitioner in which he recorded:
History: You are clearly familiar with an of the comorbidities and of specific note, from musculoskeletal perspective, osteoarthritic changes in the knee joint symptomatic mainly in the left and also ongoing back pain as a result of degenerative changes, predominantly at the L5-S1 level. In the last 4 years since I last saw Domenic, he has remained fairly stable from a general medical perspective. His social circumstances are changing a little in that mother is now, for the moment least, in respite and depending on circumstance there may be a longer term solution, which will give Domenic some more time to concentrate on physical rehabilitation which is so essential to his circumstance.
EXAMINATION: Domenic remains clinically fairly much unchanged, He still carries some degree of weight above desirable for build. At the level of the knees, we don't have effusion. only the scars from previous surgery. the deficient muscular supports and crepitus during movement, is particularly in the anterior compartments but range of movement is preserved. Recent x-rays have revealed reasonably well preserved joint spaces, fairly much identical to what was the case in 2009. Joint space remnant as a minimum is 6mm, though most of the spaces are better. We previously also had MRI study which showed that there was osteitis and for a time, Domenic was taking Protos to help remedy the situation since he apparently didn't tolerate Actonel EC -somewhat unusually. With respect to buttock pain, x-rays of the sacroiliac joints have been. Taken and these are normal. However, one can see quite clearly the loss of disc space at the L5-Sl level. Again, these are not new findings.
ASSESSMENT: Fortunately, there has been little deterioration in the joints, with established diagnosis being obvious. Domenic is at the present time doing some very basic physical treatments under guidance by Physiotherapist.
PLANS: In circumstance, it would be worth knowing what has happened to the cartilage space and the subchondral bone and hence, I've asked that we repeat MRI study and we will be able to compare this to the previous. We will no doubt have to upgrade the physical treatment whilst continuing nutriceuticals. There may be a need to revisit Actonel EC since we no longer have Protos available. In due course, I will let you know outcome.
On 12 February 2019, Dr Laska provided an updated report to Mr Bartone’s general practitioner in which he recorded:
I hope you received copy of report of MRI study. If this was overlooked, Domenic has the disk and report for your review. It is fortunate indeed that there has been little change since 2013 in the anatomical structure of the left knee joint. There is the same degree of loss in the lateral compartment of the hyaline cartilage, degenerative changes of the anterior cruciate and the lateral meniscal attachment, together with minimal subchondral bone stress response now. There is a small Baker's cyst projecting into the medial compartment of the popliteal fossa. Domenic was concerned that there might be loose bodies; however, none are evident. It would appear that the grinding sensation Domenic feels relates to the Baker's cyst and the synovial/capsular thickening. Hence, we need to continue with nutriceuticals, increase the strength of muscular supports. Reduce slight excess body weight being carried and in due course, consider resumption of Synvisc if this is necessary.
On 1 April 2019, Mr Anthony Bonomo, orthopaedic surgeon, provided an extensive report to Mr Bartone’s general practitioner in which he recorded:
He presented today seeking what can be done for his left knee which has been problematic for a long time. To a lesser extent the right one is also affected. In total he has had 5 arthroscopies, with 4 on the left side. The last one was more than 10 years ago. He says he didn't find the arthroscopies particularly helpful. His main issue is pain over the medial and posterior aspect of the knee. Going downs stairs makes the knee feel unstable. When he walks he says the knee tires easily. A brace offers some support. I note he has also tried Synvisc injections.
On examination he was lightly built. The knee itself bad a full range of movement. There was no effusion. He had a good range of movement in the hip. Image demonstrates patella femoral degenerate disease and on MRI there is a combination of meniscal and chondral pathology. I have explained to Domenico that the knee is arthritic. Based on the history given he is at least moderately disabled. His imaging however shows he does not have end stage disease and for the moment he should steer away from joint replacement. I have spent some time explaining that other modalities including some physiotherapy and Feldene medication intermittently can be helpful.
The Respondent accepts that Mr Bartone’s knee condition was fully diagnosed at the qualification period on the basis of MRI findings of osteoarthritic changes in the knee joint indicating significant degenerative changes corroborated by the opinions of Mr Bartone’s rheumatologist, orthopaedic surgeon and physiotherapist.
The Respondent accepted that Mr Bartone’s knee condition was fully treated and fully stabilised during the qualification period based on the opinions of Mr Bartone’s specialists that ongoing conservative treatment was appropriate for the condition.
The Respondent contended that the functional impact arising from Mr Bartone’s left knee condition should be assessed under Table 3 – Lower Limb Function. The Respondent argued that a maximum rating of 5 points could be awarded for this condition based on Mr Bartone’s self-reporting and the limited corroborating evidence as to the condition’s functional impact.
The Respondent submitted in its Statement of Issues, Facts and Contentions that Mr Barone had described that:
(a)he shops at the supermarket but experiences pain when pushing the trolley and when transferring goods to the car;
(b)he finds going up and down the 17 stairs in his house painful;
(c)he does not use a walking stick but will use a walking frame occasionally; and
(d)he finds walking difficult and has to go slowly.
Having considered all the evidence before it, the Tribunal is satisfied that Mr Bartone’s long standing knee condition was fully diagnosed during the qualifying period, relying upon numerous reports including MRI scans and rheumatologist, orthopaedic surgeon and physiotherapist reviews.
The Tribunal found that, given the severity of Mr Bartone’s long-term bilateral knee pain, his condition was fully treated and stabilised at the qualification period as he had undertaken physiotherapy treatment for many years, had numerous arthroscopies, and has consulted a rheumatologist and an orthopaedic surgeon who both agree that a conservative approach at this time was best for Mr Bartone.
The Tribunal considered that Mr Bartone’s knee condition was having a moderate functional impact on activities requiring lower limb function in accordance with Table 3. Mr Bartone reported that during the qualifying period he was in constant pain, had difficulty with standing, walking up and down stairs and walking around a supermarket. Mr Bartone confirmed his evidence to AAT Tier 1 had been accurately recorded by the Member, it stated:
Apart from this, he goes out rarely. He used to go to church, but now only does this occasionally. Similarly, he used to regularly go for a walk, but no longer does this. He finds going up and down steps and stairs a nightmare as it is painful. The house is two-storey, and there about 17 stairs to climb. He does not use a stick but does have a walking frame which he uses occasionally; he is experiencing more pain.
His mother is now being cared for in an aged care centre in Carlton. When she was first moved there, he used to visit her frequently, but following a car accident in March of last year he is now particularly apprehensive about driving, and now visits less frequently.
He finds walking difficult because he is flat-footed. He has to go very slowly and has to be very careful on rough surfaces. Particularly if the ground is uneven his legs can give way.
He finds it hard to sit upright and slouches when sitting in a chair. He experiences pain when standing for longer periods.
The Tribunal found this was corroborated by the evidence of Mr Bartone’s physiotherapist, Mr Ward, who opined that: Together these conditions severely impact on his functional capabilities and is likely to continue to progress over time to the point where he may at some stage require total knee replacement.
Additionally, the Tribunal relied upon the evidence of Mr Bartone’s orthopaedic surgeon, Mr Bonomo, who reported:
Image demonstrates patella femoral degenerate disease and on MRI there is a combination of meniscal and chondral pathology. I have explained to Domenico that the knee is arthritic. Based on the history given he is at least moderately disabled. His imaging however shows he does not have end stage disease and for the moment he should steer away from joint replacement.
The Tribunal therefore awards Mr Bartone 10 points under Table 3 – Lower Limb Function in respect of this condition. The Tribunal did not consider Mr Bartone’s lower limb condition was severe as he did not report he was unable to walk, stand from a sitting position or use public transport without assistance.
Mental Health Condition
On 2 April 2019, Dr Theresa Marasco, clinical psychologist, provided a supporting letter for Mr Bartone’s DSP claim in which she advised:
I am writing regarding Mr Domenico Bartone who has now attended three sessions of psychological therapy with myself, on 27 February 2018, 12 March 2019 and 28 March 2019. Mr Bartone presented with stress symptoms of burnout in the context of being a carer for the past 18 years first to his father, then mother.
Mr Bartone’s symptoms may have been precipitated by family stressors involving caring for his father from 2002 until he passed away in 2009 then assuming care of his mother until she was placed in an aged care facility earlier this year further his symptoms may have been predisposed by learning difficulties experienced during secondary schooling... Mr Bartone has not been part of the workforce for the past 22 years due to being a carer for both parents and reported a longstanding history of depression and anxiety, which may have been a barrier to employment.
In my professional opinion currently, Mr Bartone’s symptoms impact his daily function and he may not have capacity to engage in employment. It is recommended that Mr Bartone continue therapy with the aim of reducing symptomology, improving overall mood and functioning and increasing professional and social supports where possible.
On 4 June 2019, Mr Bartone’s general practitioner, in a referral letter to Dr Ajith Vidanagama, requested:
psychiatric assessment and his issues related about working after 18 years of mental health issues and carer of his parents
He is aware he experiences panic and anxiety and aggressive outbursts when he is criticised
He struggles with learning new concepts and doesn’t cope with change
Excessive hand washing- belief the hands are never clean, if he touches any objects that he doesn’t own he will wash his hands
Excessive door, locks and light checking in his home and his car
With his depression he struggles getting out of bed, not motivated on a daily basis to complete tasks that he is committed to
He is aware that he will agree to complete a task and then experience anxiety and panic when he realises he is unable to commit or doesn’t feel able in completing the task at hand
Panic attacks issues with increased occurrence (2x a week) since his mother has been placed in a nursing home with an increase in triggers with now not having life direction with his mother in a nursing home who previously directed his decisions about care and home care needs and his father he previously cared for now deceased.
His role and duties of care are now non-existent– apart from visiting his mother and continues to provide for her care as her son and visitor to her in the nursing home.
He is concentrating on work with his psychologist about being the carer of his mother and then stepping into a new life role.
He continues to address and use strategies and apply them in areas of melancholia, negative self and feeling low.
He also plans areas in addressing his future and where that is heading in addressing his long term issues of Depression, Anxiety, OCD, panic attacks.
On 6 June 2019, Dr Zagarella diagnosed Mr Bartone with depression, anxiety, and panic attacks which displayed symptoms of altered mental state, cognition mood disturbance, panic attacks and anxiety, noting the treatment was antidepressants and psychological therapy.
On 20 June 2019, Dr Marasco, clinical psychologist, provided an update to Mr Bartone’s general practitioner in which she advised:
Thank you for referring Mr Domenico Bartone to me on the 21st DEC 2013. Mr Domenico Bartone has now attended six session of psychological treatment and is ready for you to review Mr Bartone presented with symptoms of major depression and anxiety, with panic attacks. Further, Mr Bartone presented with stress symptoms of burnout in the context of being a carer for the past 18 years, first to his father, then mother
Mr Bartone's symptoms may have been precipitated by family stressors involving care for his father from 2001 until he passed away in 2009, then assuming care for his mother until she was placed in an aged care facility earlier this year. Further, his symptoms may have been predisposed by learning difficulties experienced during secondary schooling. Mr Bartone's symptoms may be perpetuated by social isolation, having limited social networks and adjustment issues re to his mother being placed in a nursing home.
Treatment summary:
Treatment thus far has included supportive therapy, solution focused strategies and cognitive behavioural therapy (CST). with a focus on behavioural activation. The DASS 21 item was used to assess symptoms of Depression, Anxiety and Stress at session 1, and again at session 6 for mood scores as evidenced by table below:
Date: Depression Anxiety Stress
First session
27/02/2019 Extremely Severe (38) Extremely Severe (34) Extremely Severe (140)
Sixth session
17/06/2019 Severe (26) Severe (19) Severe (32)
As it can be seen in the above table symptom scores of depression, anxiety and stress have all significantly improved. Mr Bartone has been well engaged in sessions and responsive to treatment. Despite the improvement in mood score ratings, scores are still in the severe range. It is recommended that Mr Bartone may benefit from continuing treatment, with the aim of further improve symptomology.
On 12 August 2019, Dr Ajith Vidanagama, psychiatrist, provided an extensive report to Mr Bartone’s general practitioner in which she recorded Mr Bartone’s long-term experience of anxiety and depression since childhood and previous treatment sought. She recorded:
Domenico described long-term experiences of anxiety and depressive symptoms since his childhood. He recalled being tense, edgy and inability to relax most of his life. Domenico said later he developed more obsessional symptoms such as fear of contamination, doubts and ruminations of day-to-day things or some incident that happened in the past without sense. He reported ritualistic behaviours such as repeated washing, switching on and off lights, checking car switches and doors at home. Domenico said his behaviours and thoughts were irrational however, he found it hard to resist due to exacerbation of anxiety with panic attacks. Domenico said he experienced palpitation, shortness of breath, excessive sweating, blurred vision lasting a few minutes with the surge of anxiety during the panic attacks. He was unable to recall a clear precipitant except for circumstances such as someone criticising him. There were no apparent agoraphobic symptoms. He reported worsening of anxiety symptoms and development of depressive symptoms in around 2006 with a failed business adventure and after became a full-time caregiver for both parents. Domenico said, he saw a psychiatrist Dr McIntosh at Melbourne clinic for a few years with little improvement of symptoms. Domenico reported a recent deterioration of his mental state coincided with his mother moving to the nursing home, changes of his routine, loss of caregiver role and changes of Centrelink payments. Dominic said Centrelink expected him looking for work. which he found it as an unrealistic expectation due to his unresolved anxiety and depressive symptoms. He reported he was initially treated on Sertaline 50 mg and gradually increase the dose 150mg over the years. Domenico began to see a clinical psychologist in February 2019 and working on CBT based therapy.
Dr Vidanagama’s report also opined that Mr Bartone’s presentation is consistent with Obsessive-Compulsive Disorder with comorbid Persistent Depressive Disorder (Dysthymia). There were no overt maladaptive personality traits. There were no acute risk concerns. It also recommended the following treatment plan:
1) We discussed the diagnostic formulation, treatment options including the role of medications and the importance of working with the clinical psychologist.
2) Regarding medications, we discussed the options of increasing the dose of Sertraline to 200 mg or switch to SNR I such as Venlafaxine or Desvenlafaxine. Domenico was concerned about weight gain with SNR I and prefer to be on Sertraline and increase the dose to 200 mg. We discussed the augmentation of antidepressant with low-dose of Risperidone 0.5 mg to 1 mg to manage his OCD symptoms after few weeks trial of high-dose of Sertraline. Domenico was agreeable with the plan.
3) I assume, Domenico working with the psychologists on CBT especially exposure and response prevention to manage his OCD.
4) Domenico said he is looking forward to reapplying for disability support pension, Given the long-standing nature of his anxiety and depressive symptoms, long duration of unemployment, my opinion is he will not be able to return to work or study in the foreseeable future. You could provide a copy of this letter if you requested to support his DSP application.
On 31 July 2019, Mr Bartone’s general practitioner provided an ongoing and indefinite medical certificate to Centrelink for Mr Bartone:
He has been attending his psychologist to assist with his anxiety, depression, panic attacks, carer stress and OCD.
He is also on the long wait list at Cohealth Ot to be assessed and managed with assistance of daily life function issues which includes issues with his mental health spinal and knee pain, he has been seeing the physio to have clinic care and home exercise plan.
He experiences daily and has experienced since childhood and will experience mental and physical health symptoms that will impact him for the rest of his life.
He addresses his difficulties with being hypervigilant, palpitations, trembling, shaking, sweating, feeling detached in the community, dizziness, skeletal pain.
He is learning and using strategies to assist with his physical and mental symptoms however this remains a daily challenge with his compensatory use of OCD strategies, anxiety, depression, stress and pain-relieving strategies to address this.
He has discussed with his psychologist about attending the Men Shed, Volunteering options of 2 hrs a week, he sees his mother in the nursing home and, his attendance at the carer support group.
He spends time visiting his mother who can become agitated and requires regular attendance to visit her.
At present he feels that he needs to focus on his care and attend his medical and allied health appointments and, investigate community supports in his journey to achieving an improved state of health.
The Respondent accepts that Mr Bartone’s longstanding mental health condition was fully diagnosed at the qualification period. Whilst conceding that Mr Bartone’s depression and anxiety were originally observed as far back as 2006, the Respondent noted that his first diagnosis in respect of mental health by a psychiatrist or clinical psychologist did not occur until April 2019. The Respondent based its determination that Mr Bartone met the qualification criteria set out under Table 5 – Mental Health Function on Dr Marasco’s (clinical psychologist) report of 2 April 2019, which diagnosed Mr Bartone with major depression and anxiety, panic attacks, and carer burnout from being a carer to his parents for 18 years.
However, the Respondent contended that the medical evidence confirms Mr Bartone was continuing to receive treatment in respect of his mental health condition at the qualification period and that further improvement was expected. Accordingly, the Respondent contended that Mr Bartone’s mental health condition was not fully treated or fully stabilised with the resulting impairment thereby unable to be assigned an impairment rating.
Dr Marasco gave evidence at the hearing that she had been treating Mr Bartone since 2019 under a Medicare treatment plan. She stated that she attended the Tribunal as a witness for Mr Bartone on her on time and at her own expense, as she truly believes Mr Bartone’s symptoms are persistent, that he has attempted to work on his mental health condition, has committed to the process and done everything right but there had been no improvement. Dr Marasco advised the Tribunal that she was not familiar with the Impairment Tables but felt Mr Bartone’s condition was severe and that it was not going to improve.
Dr Marasco explained to the Tribunal that in her experience, her client’s symptoms fluctuate and then stabilise, and she hoped this would happen for Mr Bartone. She remarked that in a block of ten sessions funded under a Medicare mental health care plan, she usually finds that she is still unsure after three sessions if things will improve but where there is no improvement past three sessions, she generally considers that a client’s symptoms are persistent and unlikely to change.
Dr Marasco referred to her notes which recorded Mr Bartone on 21 August 2019 as showing anxiety, worry, waiting psychiatrist letter additional therapy dates, mental health issues long standing. On 17 June 2019, it had been her intention to refer Mr Bartone to a psychiatrist for medication review as she wanted to get Mr Bartone as much support as possible with daily living.
Dr Marasco advised during the hearing that she had hoped the referral to a psychiatrist would result in some relief for Mr Bartone’s symptoms and functioning and that she had been working with Mr Bartone on basic issues of daily functioning like making a grocery list. Dr Marasco advised she assesses all her clients at their sixth session, which for Mr Bartone had been on 17 June 2019, to determine what, if any, progress has been made. At this stage, she determined Mr Bartone’s condition was persistent. Dr Marasco also advised the Tribunal that her referral to a psychiatrist for pharmacological input was to alleviate symptoms and not in any hope of improving functional capacity. Dr Marasco further advised that the subsequent assessment from Dr Vidanagama was consistent with her own clinical impression and assessment of Mr Bartone.
The Tribunal explored with Dr Marasco the functional impact of Mr Bartone’s mental health condition under Table 5 of the Impairment Tables. In particular the Tribunal explored Mr Bartone’s capacity in respect of a severe functional impact. Table 5 states:
Table 5 – Mental Health Function – 20 points
There is a severe functional impact on activities involving mental health function.
(1) The person has severe difficulties with most of the following:
(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;
(f) work/training capacity.
Dr Marasco advised the Tribunal at the hearing:
Member: So, what we are looking at is the period he qualified, that’s why the Respondent is getting picky about dates, and reasonably so. Mr Bartone applied in April 2019 and he has 13 weeks to determine if you’re going to get any better so April 2019 until July 2019 anything outside of that period I can’t consider, if it got worse or hasn’t… so when the department looks at your letter, which is reasonably clinically sound, you say I’ve met this man, hopefully with treatment we may be able to improve something, you then come to a decision that I don’t think I am going to get him back to much functionality but hopefully I am getting him to the stage where he can manage day to day – is that a fair assessment of what was going on?
Dr Marasco: yes absolutely, that was the goal absolutely
M: There is mental health table… so nobody has specifically put down in corroborating medical evidence that Mr Bartone can’t do any of these thing… for mental health to be severe …the person has to have severe difficulty with self-care and independent living so needs assistance at least two times a week to survive, on your experience do you think he falls into that category?
DM: I don’t have enough information to say that.
M: Next is social, reactional and travel… only travels in familiar areas?
DM: That I can comment on. Mr Bartone is very socially isolated and has a lot of anxiety even trying to get to appointments, so that is severely impacted.
M: Interpersonal relationships – limited social contact unless organised for him, often has difficulty interacting with other people and may need assistance or support from a companion to engage in social interactions?
DM: That is accurate, there are a lot of social challenges for Mr Bartone.
M: Was that your impression in April… better or worse or stay the same?
DM: that was my first assessment but three sessions is not always enough to make that assessment so I have an openness to make that assessment, that was my initial impression and has remained the same.
M: Concentration and task completion - person has difficulty concentrating for more than 10 minutes?
DM: I am going to say yes, I have noticed Mr Bartone’s concentration is impacted. I can comment on that on how he appears in our sessions there is a lot of redirecting back to come to a point of focus, so yes his concentration is impacted.
M: Behaviour, planning decision making - the person’s behaviour, thoughts and conversation are frequently and significantly disturbed
DM: Yes planning, organising, decision making is again severely impacted, a lot of therapy has become trying to focus on just one task needing to be completed, say organising a physio appointment by breaking down the tasks.
M: Last one is work, training, education capacity - the person is unable to attend work, education or training on a regular basis over a lengthy period due to ongoing mental illness.
DM: My understanding is Mr Bartone hasn’t been in the workforce 14 years approximately, given his poor functioning I would say no he doesn’t have capacity.
The Respondent took Dr Marasco to the examples under the moderate descriptor for mental health function, for a consideration of Mr Bartone’s functional capacity, as the Impairment Tables Rules state that in determining the functional impact of a condition upon a person, the relevant descriptor for each impairment rating should be compared to determine which impairment rating should be applied.
Dr Marasco clarified to the Tribunal:
Respondent: can I take you back to referred to difficulties of Mr Bartone with independent living, were you aware he was living alone, preparing own meals at that time?
Dr Marasco: Yeah he was, .. it’s kind of like doing that takes a lot was my impression, we also spoken about things like hoarding and state the house is in, … these tasks come with a degree of struggle.
R: When we talk about whether impairment is severe or moderate, in terms of self-care and independent living would you say there was mild difficulty, moderate or severe, example for moderate is person needs some support, that is occasional visit to live independently and maintain adequate hygiene and nutrition?
DM: I am leaning towards moderate as I know his siblings check in quite frequently, I know there has been a lot of support organising finances, I know he has required assistance around that and they check in with him to kind of make sure he’s ok.
R: With social/reactional activities and travel, severe is travels alone only in familiar areas, moderate is goes out alone infrequently and is not actively involved in social events or often refuses to travel alone to unfamiliar areas, would you say moderate or severe?
DM: Was severe the first example?
R: Yes.
DM: I will say severe.
R: interpersonal relationships: severe is limited social contact unless organised for him, often has difficulty interacting with other people and may need assistance or support from a companion to engage in social interactions. Moderate is the person has difficulty making and keeping friends or sustaining relationships - would you say sever or moderate?
DM: I’m actually going to say severe. I am only going to say that because I have tried to connect him with support groups and even that initial step has been really challenging and nothing has come of it. I am going to say severe because I have really tried to incorporate that, been a big challenge.
R: You talked about concentration and task completion, you said Mr Bartone had difficulty focusing on tasks or conversation for more than 10 minutes, would you say he could concentrate a little longer than that on TV or a book?
DM: I can’t say that for sure, it could be possible, obviously I don’t have all information, all I can comment on is staying on topic in our session redirection, sure he is capable of watching movie.
R: Moderate or severe?
DM: Moderate, there is capacity, because it would depend on the task.
R: What kind of tasks?
DM: TV show example, just sitting watching that doesn’t require demanding concentration, but if it is a little bit more demanding say a conversation in therapy my observation is that’s when it becomes difficult
R: Behaviour Planning and Decision-making – moderate or severe … Mr Bartone gave evidence that he is capable of paying his own bills, he can go to the post office or do them online?
DM: Perhaps in that case, more moderate, there is some degree of functioning but with significant impairment
R: Are you talking about his cognitive impairment or mental health?
DM: I believe that there is both. Mental health his anxiety, he might ruminate all day about going to the post office, but someone who does not have that issue will just go and get it done but Mr Bartone’s whole day is planned around that task, that’s all that’s gotten done, the place is still untidy, we could get other things done but for Mr Bartone its overwhelming for him. Yes, he can get that done but it takes a great deal to get there.
R: Would you say it’s also due to cognitive delay and learning difficulties or mental health, OCD, depression, anxiety, or a combination of both conditions?
DM: I do believe it is a combination of both, but mental health side is having an impact, there is also something else going on cognitively but obviously can’t report on that as test hasn’t been conducted yet.
R: Would you, in your opinion, be able to say, putting cognitive aspect aside in terms of that impairment, would you be able to say in terms of the descriptors the same or less likely impacted?
DM: I think it remains the same because mental health, the anxiety, OCD, depression all of that is still highly prevalent, and I don’t see that changing. I think what the cognitive assessment would break it down more and enrich conceptualisation but everything else stays the same.
Mr Bartone advised the hearing:
Applicant: I suffered a lot in having to look after my late mother she was very disabled to get around, she fell and went to hospital in 2018 going backwards and forwards between rehab and hospital and then aged care until that’s where she passed in 2020 but I still had a lot of guilt and a lot of feelings of could I have done anything better to avoid it. So that was hard and I’m still coming to grips even almost a year after her passing. You understand, that was a lot of anguish. You actually asked, bearing in mind the other ailments brought their own issues but feeling alone, some days I didn’t even want to speak to people, that’s a consequence of depression, you just want to close yourself and not know anyone else exists.
……
Respondent: Letter dated 6 April 2019 … last paragraph it is recommended Mr Barton continue therapy to … social supports where possible, so what was happening after 28 March 2019 were you still continuing to see Dr Marasco?
A: Yes. Nothing much has changed, I was still being withdrawn not wanting see the outside world, still wanting to see my mother was she was still alive, the days just seem to drag on, ...it had done its damage, and just didn’t want to, it was not my decision was out of my hands cause was more of a hospital procedure that was in place and multiple admissions seemed not in best interest for my mother so she was determined not to be given permission to return to her residence so be placed waiting list aged care accommodation so my world had been turned upside down and so basically I didn’t want to engage.
R: Your mother, you were living with your Mum until January 2019, and when you saw Dr Marasco three months after your mum went into residential care. At that time were you the nominated contact person for your Mum for the hospital and arrangements for your mum?
A: Myself and my elder brother.
R: You were communicating with elder brother to make those arrangements for your mother?
A: Well at the time my brother was a doctor, it seemed better, so they preferred to speak to someone who understand their language rather than someone who can’t understand what happens in aged care so I had very little to do with decision making in that sense.
R: Did you continue to maintain the home?
A: Yes, basically otherwise I wouldn’t have had anywhere to go to.
R: You arranged for person to come mow lawn, you made those arrangements?
A: Yeah you would ring and make time that suited and that’s how arrangement happened, I was knocked back for any cleaning or domestic services which is basically how I could maintain the house but outside was more of a gardener would call night before and say coming on such and such date and time and that’s how arrangement happened.
R: Did you continue to pay the bills…?
A: Yes, I did.
R: How were you paying those bills? Internet banking or post office?
A: Sometimes I would actually go to a bank or post office but when that became hard I did it online through the phone apps or B-Pay.
…….
Member: Mr Bartone can I check with you about your view of self-care and independent living – so needs visit twice a week from family member or support worker – what just on a day to day basis just describe back in April 2019, back then not now, when your mum was in the nursing home what was your day to day activity like?
A: Just basically centred round going to see my Mum, just one particular task what adds to rumination is thinking about certain bill has to be paid but also fitting time to do shopping or paying bill, I actually had to do one thing at a time, couldn’t do it in the one hit, it just basically centred around one activity.
M: You could get up in the morning, would you remember to have a shower or would someone have to tell you to have one?
A: There are days when I do a self-wash and there are days even morning wouldn’t be shower it would be afternoon, that’s how it sort of was, lack of motivation any task is like making a mountain out of a mole hill, just seems to be so overwhelming.
M: Back then, … feeding yourself, getting meals, did people ring you or drop food, how was that going?
A: I wouldn’t be say having silver service, evening might consist just sandwich if there wasn’t enough money, had to pay bills.
M: Just, would you remember to get yourself a sandwich, talking now about your ability mentally to do these things?
A: I would look at what’s in fridge and that will have to do, getting two pieces bread, slice cheese, slice ham, even people with complex issues I think would have no problem with that.
M: For it to be severe you need to be at the end of the scale, that’s why I’m going over and over this, you need to be so incapable because of your mental health issues, that you’re really not functioning. The Act says you have no ability to do any, not a little or some but very little, you need to rely on brother or sister to ring and tell you to get out of bed have a shower and have a sandwich.
A: At the moment if we didn’t have this conference call I would still be in my jammies, even back then, I would go in afternoon, get myself ready, wash self, clean, get in car, stay for a couple of hours, that was my day to day function.
M: You were still driving and capable of driving?
A: I had car accident which made my trips to see my Mum even that much less because I didn’t have car and when I did I was only going in every third day so withdrawal symptoms for both of us were traumatic, bad for me but worst mum not being able to see me and that was eventually what caused her passing is that she couldn’t see people as often as she wanted to, so even with the car after 2019 accident I was only going twice a week whereas before was going every day before accident.
M: How would you describe your concentration, watch movie, TV, read a book?
A: I will watch first 15, 20 minutes then doze off, times had to rewind TV if capable or wait next time to come on, I can’t recall watching a movie from start to finish for some reason whether I’m just not zoned in or not concentrating enough the next thing I know to doze off.
M: Did you speak to your Mum in Italian or English?
A: A dialect of Italian because she was more comfortable with, there were times she would ring constantly and I mean constantly, without giving the cold shoulder there were times when we just spoke a little while ago, I would say why have you called again, just to tell you about so and so, well you could of told me before, conversation the next day. After losing my father in 2009 it was just myself and my Mum with the carers who came in on week daily basis, so it was just myself and my Mum, with Dad being taken from both of us, we both had to improvise how we get past this stage, for her it was speaking on the phone for me it was face-to-face but when that taken away I probably didn’t deal with that as best as I could.
Having considered all the evidence before it, the Tribunal is satisfied that Mr Bartone’s long standing mental health condition, described as depression, anxiety, OCD and panic attacks, was fully diagnosed during the qualifying period, preferring the evidence of Dr Vidanagama who opined: presentation is consistent with Obsessive-Compulsive Disorder with comorbid Persistent Depressive Disorder (Dysthymia). There were no overt maladaptive personality traits. There were no acute risk concerns.
The Tribunal found, given the long-term severity of Mr Bartone’s mental health condition, that it was fully treated and stabilised at the qualification period relying on the evidence which indicated he had previously attended the Melbourne clinic, seen both a clinical psychologist and psychiatrist as well as undertaking CBT-based therapy and taking anti-depressants for many years. The Tribunal further found that, in the qualification period on 17 June 2019, Dr Marasco had determined Mr Bartone’s condition was persistent and her referral to Dr Vidanagama was for a pharmacological review to assist with this permanent and intractable condition.
The Tribunal relied on Dr Marasco’s evidence at the hearing that when she had received the report form Dr Vidanagama it confirmed her opinion that Mr Bartone’s mental health condition was severe and persistent. Dr Marasco stated the report confirmed she and the psychiatrist were on the on same page, that their clinical impression was congruent.
The Tribunal considered that Mr Bartone’s mental health condition was having a severe functional impact on activities requiring mental health function in accordance with Table 5 – Mental Health Function. Mr Bartone reported that during the qualifying period he had a great deal of difficulty dealing with anything from his personal care to socialising to travel, as he ruminates on every activity he undertakes, from thinking about visiting his mother in the nursing home to a certain bill he has to pay, but also fitting time in to do shopping or paying the bills. He could only to do one thing at a time, reporting he couldn’t do it in the one hit, and his day was centred around one activity. He remarked that he still doesn’t want to see the outside world, his days drag on, he cannot concentrate on anything for a long time as he just zones out and often falls asleep watching TV, does not socialise, and his brother, who is a doctor, made all the decisions about his mother’s care whilst she was in the nursing home.
The Tribunal found Mr Bartone’s description of his functional impairments were corroborated by his psychologist Dr Marasco, his psychiatrist, Dr Vidanagama, and general practitioner, Dr Zagarella. Dr Zagerella opined:
He has been attending his psychologist to assist with his anxiety, depression, panic attacks, carer stress and OCD.
He is also on the long wait list at Cohealth Ot to be assessed and managed with assistance of daily life function issues which includes issues with his mental health spinal and knee pain, he has been seeing the physio to have clinic care and home exercise plan.
He experiences daily and has experienced since childhood and will experience mental and physical health symptoms that will impact him for the rest of his life.
He addresses his difficulties with being hypervigilant, palpitations, trembling, shaking, sweating, feeling detached in the community, dizziness, skeletal pain
The Tribunal relied upon Dr Marasco’s evidence at the hearing where she considered that, Mr Bartone’s:
(a)self-care and independent living: could fall between moderate and severe as she was aware his siblings check in on him regularly to ensure he is okay and that they provided support particularly around organising his finances; she had also been working with him on issues of hoarding and the state of his house and undertaking basic tasks like grocery shopping; that he could clean and attend appointments but it all took a degree of struggle and he could only do one task at a time;
(b)social/recreational activities and travel: was severe as he was very socially isolated and had a lot of anxiety even coming to appointments;
(c)interpersonal relationships: was severe, as he had enormous challenges connecting with people, had very limited contacts and indeed this was something she had really tried to incorporate into his therapy, but it had been really challenging as he had been resistant to getting involved in any social activities;
(d)concentration and task completion: was severe as she had observed in all their sessions that there was a lot of redirecting Mr Bartone back to the point of discussion; that Mr Bartone may be able to watch a TV show as this does not require demanding concentration, but she had observed in therapy that it becomes difficult for Mr Bartone to concentrate on a task for more than 10 minutes;
(e)behaviour, planning and decision-making: was severe as a great deal of her work with Mr Bartone had become centred around his ability to deal with just one task, such as completing a shopping list; that Mr Bartone’s anxiety results in him ruminating all day about going to, say, the post office; his whole day is planned around that task, that is all that’s can get done, it is overwhelming for him and whilst he can get that done, it takes a great deal to achieve; and
(f)work/training capacity: was severe as she understood Mr Bartone had not been in the workforce for 14 years and given his poor functioning she believed he had no capacity for work or training.
The Tribunal therefore awards Mr Bartone 20 points under Table 5 of the Impairment Tables in respect of this condition.
Impairment Rating
The Tribunal finds that Mr Bartone has an overall impairment rating of 35 points comprising 5 points under Table 4, 10 points under Table 3 and 20 points under Table 5. Therefore, Mr Bartone satisfies section 94(1)(b) of the Act.
Does Mr Bartone have a continuing inability to work?
To qualify for the DSP, Mr Bartone must not only satisfy the requirement that he has impairments that can be assigned 20 points or more under the Impairment Tables; he must also demonstrate that he has a continuing inability to work. Pursuant to section 94(2) of the Act, Mr Bartone would be considered to have a continuing inability to work if:
he has actively participated in a program of support within the meaning of section 94(3C) of the Act prior to his claim for DSP; and
(b)his impairment is of itself sufficient to prevent him from improving his capacity to prepare for, find or maintain work through continued participation in the program.
However, a person with a severe impairment is not required to satisfy the Secretary that they have actively participated in a program of support. A person’s impairment is a severe impairment if it attracts 20 points or more under a single Impairment Table.
The Tribunal strictly applies the program of support (POS) requirement, finding that no power exists to dispense with it under the operation of section 94(2)(aa) of the Act. It is irrelevant whether an applicant was aware of the requirement.
As set out in section 94(2)(aa) of the Act and clarified by section 7 of the POS Determination, an applicant whose impairment is not categorised as a ‘severe’ must actively participate in the program for 18 months within the three years prior to the date of claim. The Respondent contended that Mr Bartone did not satisfy section 94(2)(aa) of the Act during the qualification period, as his Centrelink records indicated that he had completed zero days in the POS period, which was less than the 18 months required under section 7(2) of the POS Determination. Further, the Respondent argued there was no evidence that Mr Bartone had completed a POS that was less than 18 months (in accordance with section 7(3)) or that his participation was terminated (in accordance with section 7(4)).
However, these requirements under section 94(2)(aa) of the Act are enlivened only where an impairment is not severe. The Tribunal has found that Mr Bartone has a severe impairment, having assigned 20 points or more under a single Impairment Table. Accordingly, Mr Bartone is not required to have participated in a program of support, and thereby satisfies section 94(2)(aa) of the Act.
On 1 August 2019, Centrelink undertook a face-to-face psychological assessment of Mr Bartone and determined in an Employment Services Assessment Report of 5 August 2019 that he had a baseline work capacity of 15-22 hours per week in a light semi-skilled role. The rationale for this determination stated:
Work capacity is temporarily reduced to 0-7 hours per week over the next 6 months to allow for rheumatology review, orthopaedic assessment, and re-engagement with a psychiatrist and to continue sessions with a psychologist.
Baseline capacity is assessed at 15-22 hours per week due to chronic pain, motivational difficulty, physical limitations.
With disability specific intervention, work capacity is likely to remain stable at 15-22 hours per week. He may benefit from vocational assessment, retraining, and a graduated return to work program.
Interventions
Interventions that were identified for this client
Intervention: Psychiatric services/treatment (P54)
Intervention: Psychological/cognitive assessment/intervention (P55)
Intervention: Secondary rehabilitation (M54)
Intervention: Vocational assessment/counselling (V52)
Intervention: Job-seeking (specialised) (V60)
Intervention: On-the-job training (V56)
Intervention: Occupational Therapy assessment (H54)
Barriers to be addressed
Barrier: Physical limitations restricting type of work (V03)
Barrier: Awaiting medical/health intervention (H15)
Barrier: Chronic pain (H12)
Barrier: Psychological/psychiatric condition (H02)
The Respondent contended that Mr Bartone had a continuing ability to work, with a work capacity of greater than 15 hours per week, as his impairments did not prevent him, within the next two years, with intervention, from being able to work or study for 15 to 22 hours per week.
The Tribunal finds that Mr Bartone satisfies section 94(2) of the Act as he has a continuing inability to work. In reaching this conclusion, the Tribunal relies upon the findings of the authors of the employment service assessment report of 5 August 2019, who are considered to have specialised knowledge and experience in identifying barriers to employment, interventions, available programs and suitable occupations to determine a person’s work capacity quoted above. The report identified Mr Bartone’s chronic pain, motivational difficulty, physical limitations and psychological/psychiatric condition were all barriers to his re-entry to the work force.
The Tribunal also relied upon the report of Dr Vidanagama, in which he opined on Mr Bartone’s continuing inability to work:
Domenico said he is looking forward to reapplying for disability support pension, Given the long-standing nature of his anxiety and depressive symptoms, long duration of unemployment, my opinion is he will not be able to return to work or study in the foreseeable future. You could provide a copy of this letter if you requested to support his DSP application.
The Tribunal was also informed by Dr Marasco’s evidence at the hearing where she advised she did not believe Mr Bartone had any capacity for work or training.
The Tribunal is satisfied that, at the date of application, Mr Bartone was qualified to receive the DSP, as his impairments attracted 35 impairment points under the Impairment Tables, including 20 points for a severe impairment. As such, he was not required to undertake a POS as his impairment was considered to be severe. Additionally, he satisfies section 94(1)(c) of the Act in that he had a continuing inability to work.
DECISION
The Tribunal sets aside the decision under review and remits the matter for reconsideration with a direction that the Applicant satisfies sections 94(1)(a), (b) and (c) of the Act.
I certify that the preceding 98 (ninety-eight) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke AO, Member
...........[sgd]............................
Associate
Dated: 8 October 2021
Date of hearing:
7 September 2021
Applicant:
Self-represented
Advocate for the Respondent:
Ms Jasmine Forsyth
Solicitors for the Respondent:
Mills Oakley Lawyers
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