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

[2020] AATA 2649

Cardona Ossa and Secretary, Department of Social Services (Social services second review) [2020] AATA 2649 (3 August 2020)

Division:GENERAL DIVISION

File Number(s):      2019/3072

Re:Juan Carlos Cardona Ossa

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr I Alexander, Senior Member

Date:3 August 2020

Place:Sydney

The reviewable decision dated 30 April 2019, rejecting the applicant’s claim for the disability support pension, is affirmed

...............................SGD.......................................

Dr I Alexander, Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support pension –– decision under review affirmed.

LEGISLATION

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

Cases

SECONDARY MATERIALS

Social Security (Active Participation for Disability Support Pension) Determination 2014  (Cth)

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

REASONS FOR DECISION

Dr I Alexander, Senior Member

3 August 2020

BACKGROUND

1. On 27 February 2018 Mr Cardona Ossa, who is now 51 years old, lodged a claim for Disability Support Pension (DSP). He described his medical condition as “Major Depression Disorder and Anxiety”.

2. The claim was rejected by Centrelink, both initially and on internal review, on the basis he did not satisfy the requirements of s 94 of the Social Security Act 1991 (Cth) (the Act). In particular, he did not satisfy s 94(1)(b) of the Act as his impairment was not 20 points or more under the Impairment Tables.

3. In a decision dated 30 April 2019, the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) found that “none of Mr Cardona Ossa’s impairments can be assigned impairment ratings” and, therefore, he did not meet the requirements of section 94(1)(b) of the Act.

4. In these proceedings Mr Cardona Ossa, who is self-represented, seeks review of the decision of the AAT1.

5. In view of the temporary changes with regard to the suspension of face-to-face Tribunal hearings during the COVID-19 crisis, both parties attended the hearing by telephone.

   ISSUES

6. In order to qualify for the DSP, a person must satisfy the requirements of section 94 of the Act as at the date of the claim or within 13 weeks of lodging the claim. The claim must further be in accordance with subclause 4(1) of Schedule 2 to the Social Security (Administration) Act 1999 (Cth) (Administration Act). That is, Mr Cardona Ossa must satisfy the requirements between 27 February 2018 and 29 May 2018 (the qualification period).

7. 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)    …

   (i) the person has a continuing inability to work;

   (ii) …

   d)    the person has turned 16; and… 

   …

8. There is no dispute Mr Cardona Ossa suffered medical conditions during the qualification period that caused some functional impairment and therefore satisfying s 94(1)(a) of the Act.

9. The medical conditions included the following:

   ·Mental health condition – major depression;

   ·Spinal condition – chronic back pain, multilevel lumbar spondylosis;

   ·Upper Limb condition – carpal tunnel syndrome; 

   ·Hypertension; and

   ·Hypercholesterolaemia.

10. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Impairment Determination) requires that an impairment rating can only be assigned to an impairment if the condition causing that impairment is ‘permanent’ (paragraph 6(3)(a)).

11. For the purposes of paragraph 6(3)(a), a condition is permanent if it is:

    ·fully diagnosed by an appropriately qualified medical practitioner (paragraph 6(4)(a)); and

    ·fully treated (paragraph 6(4)(b)); and

    ·fully stabilised (paragraph 6(4)(c)); and

    ·the condition is more likely than not, in light of available evidence, to persist for more than two years (paragraph 6(4)(d)).

12. The introduction to each relevant Table requires that ‘there must be corroborating evidence of the person’s impairment’ and that ‘self-report of symptoms alone is insufficient’.

13. Where a person has a permanent condition resulting from a functional impairment due to a mental health condition, the Introduction to Table 5 of the Determination is utilised. It states the diagnosis of the condition “must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist)”.

14. The Respondent concedes and the Tribunal accepts that, during the qualification period, Mr Cardona Ossa’s “major depression”, lumbar spondylosis and CTS were fully diagnosed.

15. However, the Respondent contends these conditions were not fully treated and fully stabilised during that period, therefore a rating under an Impairment Table cannot be assigned.

16. With respect to Mr Cardona Ossa’s hypertension and hypercholesterolaemia, the Tribunal is satisfied these conditions were permanent for the purposes of the Impairment Determination.

17. However, as there is no evidence before the Tribunal that, during the claim period, Mr Cardona Ossa suffered any functional impairment because of these conditions a rating of 0 points under the Impairment Tables would apply.

18. The Respondent also contends that during the qualification period, Mr Cardona Ossa could not satisfy s 94(1)(c) of the Act as he did not have a continuing inability to work; he had not actively participated in a program of support (POS) as required by paragraph 94(2)(aa) of the Act.

19. Paragraph 94(2)(aa) of the Act provides that a person has a continuing inability to work because of an impairment if the Secretary is satisfied that “in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B)… the person has actively participated in a POS within the meaning of subsection (3C)”.

20. Subsection 94(3B) of the Act provides that a person’s impairment is a severe impairment if the person’s impairment is 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.

21. Section 7 of the Social Security (Active Participation for Disability Support Pension) Determination 2014 provides, inter alia, that a person has actively participated in a POS if they have participated in the program of support for a period of at least 18 months during the 36 months prior to the date of claim.

22. It is agreed that, prior to the date of claim, Mr Cardona Ossa had not actively participated in a POS.

23. It follows that the determinative issue in this matter is whether, during the qualification period, Mr Cardona Ossa suffered an impairment of 20 points or more under a single Impairment Table and, if so, whether he had a continuing inability to work.

    EVIDENCE

24. On 10 November 2011 Mr Cardona Ossa was sentenced in the District Court of NSW to an effective term of nine years imprisonment with a non-parole period of five years and six months.[1] He was released early on parole on 17 December 2014.[2]

    [1] Report of Dr Reutens, psychiatrist, dated 6 February 2018, page 2.

    [2] Ibid

25. On 27 August 2015 Mr Cardona Ossa was granted permission to travel overseas to Colombia on compassionate grounds for a period of three weeks. The travel permit expired on 23 September 2015.[3]

    [3] Ibid

26. On 12 September 2015 a medical certificate signed by a general practitioner in Colombia stated Mr Cardona Ossa “had anxiety and severe depression syndrome” and recommended that he “abstain from travelling at all until his illness is under control”.[4] The Doctor noted that Mr Cardona Ossa  was referred for psychological assessment and started on medication.[5]

    [4] Section 37 documents page 162

    [5] Ibid, Paroxetine and Clonazepam

27. Mr Cardona Ossa’s psychological therapy ended on 25 August 2017[6]. He arrived back in Australia on 28 September 2017[7]  and was returned to prison. In February 2018[8] he was released from prison.

    [6] Ibid, page 107

    [7] Ibid, page 209

    [8] Ibid, page 187

28. At the hearing, Mr Cardona Ossa told the Tribunal that after returning to prison, he had not taken any psychotropic medication for 1 to 2 months.

    Mental health condition

29. The Tribunal was provided with translated copies of the clinical notes of  J O Calderon Duque, Mr Cardona Ossa’s treating psychologist from 30 September 2015 to 25 August 2017. Relevant extracts, inter alia are as follows:

    ·30 September 2015 - Patient coming to consultation referred by general practice. He has symptoms of anxiety and deep depression syndrome. Has been prescribed Paroxetine 20mg and Clonazepam drops

    ·Diagnosis - Anxiety and deep depression related to emotional mourning

    ·26 February 2016– Ten psychotherapy sessions have taken place to date where important progress has been seen regards to the patient’s emotional state which was prompted the consultation  ….However, in the last sessions a relapse in his mood and attitude is noticed, which are linked to the news regarding court proceedings in Australia  …..it is suggested that therapy continue…… 10 more psychotherapy sessions are ordered. 

    ·Psychological therapy begins 8 October 2015 and ends 25 August 2017. With the pass of time an improvement in his behaviour was noticed……but he did continue to have erratic and dangerous thoughts of self-harm that were still worrying. Even though he appeared to have improved ….it was recommended that he continue taking antidepressants.

    ·Justice Health & Forensic Mental Health clinical file to 3.11.2017[9]: The RSA Clinical Summary created on 2 .10.2017 noted that there was no history of self- harm or mental illness. Mr Cordona Ossa scored between 10-19 on the Kessler 10, a screening tool for psychological distress. The form noted that this score “indicates that the patient may currently not be experiencing significant feelings of distress”.

    [9] Supra 1 at page 3

30. On 8 December 2017 Dr Reutens, consultant psychiatrist, interviewed, Mr Cardona Ossa via audio-visual link for the purpose of a psychiatric assessment.

31. In a comprehensive report dated 8 February 2018 Dr Reutens stated inter alia as follows:

    Mr Cardona Ossa stated that prior to his diagnosis in 2015 he had never previously been depressed nor had he ever self- harmed or been suicidal ……he was released on parole one month earlier …in 2014. Mr Cardona Ossa stated that his father who lived in Colombia was very sick. He applied and received permission to travel on compassionate grounds….he was allowed three weeks in Colombia. His father was in hospital when he arrived…….His mood became depressed. He cried frequently and was suicidal. His family took him to a doctor who stated that he needed treatment and needed to stay in Colombia ….he sent an email to the parole officer requesting an extension, however his parole was revoked…….

    Mr Cardona Ossa was not admitted to hospital for psychiatric treatment however he did attend a therapy group at the hospital for one day and commenced psychotropic medication…..he saw a psychiatrist every two to three months …he recalled that his medication included the antidepressant medications Amitriptyline, Paroxetine and …Clonazepam. His mood gradually improved. …..It took two years before he was considered well enough to come home when he arrived in Australia on 18 September 2017 [sic] he informed immigration that there was a warrant out for him …and he was detained.

    Mr Cardona Ossa stated that his mood was better but his concentration was still impaired and his mood was still depressed. He said that being in gaol was “very hard’ and in the three months that he had been incarcerated he felt he was “going backwards”. He stated that he had not been prescribed his psychotropic medication and had only seen a psychologist on one occasion … Mr Cardona Ossa stated that he was told he would have to see a psychiatrist to have reinstate medication for depression and anxiety.  [emphasis added]

    DIAGNOSIS

    Mr Cardona Ossa appears to have developed a major depressive episode during his time in Colombia……He had psychological therapy and took the prescribed antidepressant medication and benzodiazepines and his mood gradually improved. Despite the substantial improvement in his mental state Mr Cardona Ossa described residual symptoms…..these symptoms are not mentioned in the Justice Health file. I note that there was no reference to other depressive symptoms in the file, and he did not score in the distressed range on the screening questionnaire, the Kessler 10. However, if Mr Cardona Ossa has suffered from a recent episode of major depression, he is recommended to continue antidepressant medication to reduce his risk of relapse…. longitudinal psychiatric review is recommended.

32. The Tribunal was provided with Justice Health & Forensic Mental Health clinical file notes from 5 January 2018 to 29 January 2018: Relevant extracts inter alia as follows:

    ·5.1 2018 – Dr Suman Staff specialist- Client presents with symptoms indicating Major Depression -moderate – Plan: Initiate on Amitriptyline 25 mg nocte ↑ to 50mg nocte on 9/1/18.

    ·7.1.18 – pt. refused 25 Amitriptyline tonight -has “felt unwell” taking it symptoms of headache & dizzy

    ·8-9.18 – refused medication

    ·25.1.18 – Pt. refused Amitriptyline ( only 2 doses) ……current end of parole July 2018 but due to see magistrate 12.2.18……commence mirtazapine

33. In a Chronic Disease Management GP plan, dated 21 March 2018, it is noted that the patient’s problems are “major depression” and “chronic back pain due to degenerative disc disease”. Medication is noted as “Aropax 20mg” and required treatment is recorded as “counselling and medication as prescribed” and “physiotherapy”.  I note there is no documentation of any assessment of functional impairment.

34. In a Centrelink Medical Certificate dated 15 June 2018 - Dr Natale, general practitioner stated that Mr Cardona Ossa had been his patient since 3 April 2018. He listed “degenerative disease of the lumbar spine” as the main medical condition which impacted on Mr Cardona Ossa’s capacity to work or study and that there was a “temporary exacerbation of a permanent condition”. I note there is no mention of his mental health condition.

35. In a Centrelink Medical Certificate dated 9 January 2019, just over 10 months since the date of claim, Dr Natale included “depression” as a medical condition which impacted on Mr Cardona Ossa’ capacity to work or study and that there was a “temporary exacerbation of a permanent condition”. He described current treatment as Aropax 20mg[10] and planned treatment as “psychiatric review with Dr Mendez”.

    [10] Paroxetine

36. In a brief letter, dated 18 October 2019, Dr Natale stated Mr Cardona Ossa “has been a patient of this practice since 2015”[11].  He also stated as follows:

    Mr Cardona Ossa has a long history of depression. He has treated for depression for two years by a psychiatrist in Columbia [sic] and has taken antidepressant medication, Aropax 20mg for the past year.  He remains chronically depressed, suffering with negative cognition, low mood, flat affect, insomnia and impaired concentration.

    [11] In Dr Natale’s various medical certificates he notes that Mr Cardona Ossa first attended the practice on 3 April 2018, that is, during the qualification period. I assume that 2015 may be a typographical error.

    Consideration

37. Mr Cardona Ossa claims that because of his condition of “major depression” he suffers significant functional impact on activities involving mental health function.

38. The evidence clearly demonstrates that Mr Cardona Ossa suffered an episode of major depression in October 2015while in Colombia. Over the following 2 years, with the benefit of psychological treatment and psychotropic medication, his condition appeared to have improved so that he was able to return to Australia.

39. On returning to Australia Mr Cardona Ossa was again imprisoned for a period of approximately 5 months. During this time, he continued to complain of symptoms consistent with “depression” but did not receive any psychotropic medication, until January 2018.

40. The medical evidence with respect to Mr Cardona Ossa’s mental health condition during the remainder of 2018 can be best be described as incomplete and unhelpful.

41. I accept that there is sufficient evidence to support a conclusion that, during the qualification period, Mr Cardona Ossa‘s condition of “major depression” was permanent for purposes of the Impairment Determination.

42. However, in the evidence before the Tribunal there is no meaningful assessment of either Mr Cardona Ossa’s symptoms or the functional impact of his condition on activities involving mental health function during that time.

43. Therefore, I am not persuaded that a rating under the Impairment Tables can be assigned.

    Spinal condition

44. Mr Cardona Ossa complains of chronic lower back pain and that he suffers significant impairment.

45. A CT scan of the lumbar spine performed on 14 March 2018 is reported as showing “multilevel spondylosis most severe involving the posterior aspect of L5/S1 disc. Here there is broad-based disc bulge which appears to contain [sic] a early / small 6/4mm disc protrusion which may / impinge the descending S1 nerve roots.”

46. Dr Natale in his medical certificates dated 15/6/2018, 9/1/2019 and 22/5/2019 stated that a “temporary exacerbation” of “degenerative disease of the lumbar spine” was the main condition which impacted on Mr Cardona Ossa’s capacity to work or study.

47. In a letter dated 24 July 2018 Dr Bazina, neurosurgeon, stated inter alia, as follows:

    I reviewed Mr Cardona Ossa in my Liverpool Rooms Friday 20 July 2018. He is a gentleman who presents with multiple episodes of back spasms and recurrent back pain on a background history of an injury 15 years ago……His CT scan suggests there is a central L5/S1 disc herniation. He travels back and forth to Colombia, he saw a Specialist there last year when his last flare up occurred who diagnosed him with a disc bulge but said that he did not think surgery was necessary. He will proceed with an MRI, he has a prescription for Norgesic, there are no acute neurological findings.

48. In a letter dated 20 August 2018 Dr Bazina stated that:

    There is no surgical pathology in this man. He has mechanical back pain from multifactorial sources. Pain management is recommended…..it is recommended he continue with an exercise program, improve his posture, try swimming and he has a referral for facet joint injection.

49. The somewhat limited evidence with respect to Mr Cardona Ossa’s chronic back pain suggests that he suffers intermittent episodes of increased pain on a background of permanent degenerative lumbar spine disease.

50. While I accept that Mr Cardona Ossa’s lumbar spine disease is a permanent condition, I am not satisfied that, during the qualification period, his condition was fully treated and fully stabilised.

51. Furthermore, even if I were to accept that Mr Cardona Ossa’s spinal condition was permanent for the purposes for the Impairment Determination, in my view, there is no convincing corroborative evidence of the functional impact of this condition on his activities involving spinal function during the qualification period. Therefore, a rating under Impairment Table 4 cannot be assigned.

    Upper limb function

52. Mr Cardona Ossa claims that he suffers impairment of activities requiring the use of his hands because of “carpal tunnel syndrome” (CTS).

53. In a letter dated 11 March 2015 Dr Rail, neurologist, stated, inter alia, as follows

    Mr Cardona has developed recurring paraesthesia through the hands particularly over the last six to eight months. He works in an aluminium factory……On examination power normal in the hands with intact sensation. Tinel’s sign positive……..EMG shoes mild carpel tunnel syndrome and we will see how he goes with some wrist splinting and I will review.

1. In his letter of 18 October 2019, Dr Natale stated Mr Cardona Ossa “has carpal tunnel syndrome in both hands with paraesthesia and pain. He has a wrist splint at night, however he continues with symptoms”.

2. As there is no other medical evidence before the Tribunal, which would allow for any meaningful assessment of the impact of Mr Cardona Ossa’s carpal tunnel syndrome on his activities of upper limb function during the claim period, I am satisfied that a rating under Impairment Table 2 cannot be assigned.

3. I note that in August 2019 Mr Cardona Ossa was referred to Dr Lieu, orthopaedic surgeon, with a one -year history of left shoulder pain. In a letter dated 20 September 2019 Dr Lieu noted that an MRI “did not show up any significant tendon pathology” and stated that there was “no obvious cause of pain base on his MRI findings”. Given Mr Cardona Ossa’s symptoms Dr Lieu suggested an MRI of the cervical spine.

4. Clearly Mr Cardona Ossa’s left arm symptoms were not present during the qualification period and, therefore, not relevant for present purposes.

   CONCLUSION

5. For the reasons set out, the Tribunal is satisfied that, during the qualification period, Mr Cardona Ossa did not have an impairment rating of 20 points or more under the Impairment Tables and therefore did not satisfy s 94(1)(b) of the Act and did not qualify for DSP.

6. As Mr Cardona Ossa did not satisfy s 94(1)(b) of the Act during the qualification period it is not necessary to consider whether he had a continuing inability to work.

   DECISION

7. For the reasons set out above, the Tribunal is satisfied that, during the qualification period, Mr Cardona Ossa did not satisfy s 94(1)(b) of the Act and did not qualify for DSP.

8. The decision under review is affirmed.

I certify that the preceding 76 (seventy -six) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Senior Member

...............................SGD.......................................

Associate

Dated: 3 August 2020

Date(s) of hearing:	6 July 2020
Applicant:	In person
Solicitors for the Respondent:	Claire Campbell