Coelho and Secretary, Department of Social Services (Social services second review)
[2015] AATA 964
•14 December 2015
Coelho and Secretary, Department of Social Services (Social services second review) [2015] AATA 964 (14 December 2015)
Division
GENERAL DIVISION
File Number
2014/6571
Re
Kishore Coelho
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Regina Perton, Member
Date 14 December 2015 Place Melbourne The Tribunal affirms the decision under review.
[sgd]........................................................................
Regina Perton, Member
SOCIAL SECURITY – disability support pension – whether accepted medical conditions attract 20 points on the date of cancellation of DSP – reasonable treatment – other possible treatments later identified - decision affirmed
Legislation
Social Security Act 1991 section 94
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination Part 2 Sections 6, 8
Cases
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Jansen [2008] FCAFC 48
Coelho & Secretary, Department of Social Services [2014] AATA 640
REASONS FOR DECISION
Regina Perton, Member
14 December 2015
Kishore Coelho suffers from paroxysmal atrial fibrillation (PAF). He was first diagnosed with the condition following an emergency hospital admission in January 2013.
Mr Coelho lodged a claim for disability support pension (DSP) with Centrelink on 14 August 2013. That claim was ultimately unsuccessful before this Tribunal, differently constituted (Coelho & Secretary, Department of Social Services [2014] AATA 640).
Prior to the previous Tribunal’s final decision in relation to the August 2013 claim, Mr Coelho lodged a fresh claim for DSP on 30 May 2014. On 31 July 2014 Centrelink decided that Mr Coelho was eligible for DSP as from 2 June 2014. However, on 27 August 2014, Centrelink decided to cancel DSP.
Mr Coelho sought a review of the cancellation of his DSP by a Centrelink authorised review officer (ARO). On 14 October 2014 the ARO affirmed the decision.
Mr Coelho lodged an application for review of the ARO’s decision with the Social Security Appeals Tribunal (SSAT) on 15 October 2014. On 3 December 2014 the SSAT affirmed the ARO's decision to refuse DSP on the basis that Mr Coelho’s impairments did not rate 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) on 27 August 2014.
On 18 December 2014 Mr Coelho lodged an application for review of the SSAT decision with this Tribunal.
The issue before the Tribunal is whether Mr Coelho satisfied the requirements for DSP when the payment was cancelled. Various doctors have given differing opinions in their medical reports on Mr Coelho’s PAF condition especially in relation to whether he should try a particular treatment which he believes is too risky.
QUALIFICATION FOR DSP ON THE RELEVANT DATE
Section 94 of the Social Security Act 1991 (the Act) sets out the criteria for a person to qualify for DSP.
94(1)A person is qualified for disability support pension if:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person's impairment is of 20 points or more under the Impairment Tables; and
(c)one of the following applies:
(i) the person has a continuing inability to work;
…
The Tribunal accepts that Mr Coelho suffered from PAF on the cancellation date and continues to do so. The Tribunal must decide whether Mr Coelho’s medical conditions attracted an impairment rating of 20 points, subject to satisfying the requirements under sections 6 (3) and (4) of the Impairment Tables, which require the medical conditions to be fully diagnosed, treated and stabilised to be considered permanent.
Mr Coelho’s general practitioners and specialists have provided many reports since August 2013. Mr Coelho also gave evidence at a hearing on 14 July 2015. The Tribunal accepts that as from January 2013 and as at the date of cancellation, Mr Coelho suffered from PAF. The Tribunal therefore accepts that Mr Coelho suffered from a physical impairment on 27 August 2014. He meets the requirements of section 94(1)(a) of the Act.
As stated earlier, the legislation only allows for impairment points to be assigned for a particular condition if it has been fully diagnosed by an appropriately qualified medical practitioner, has been fully treated and fully stabilised, and is likely to persist for more than two years (section 94(1)(b) of the Act).
Section 6 of the Impairment Tables states that:
…
Applying the Tables
(2)The Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.
…
Impairment ratings
(3)An impairment rating can only be assigned to an impairment if:
(a)the person’s condition causing that impairment is permanent; and
Note: For permanent see subsection 6(4).
(b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
…
Permanency of conditions
(4)For the purposes of paragraph 6(3)(a) 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
Note: For fully diagnosed and fully treated see subsection 6(5).
(c)the condition has been fully stabilised; and
Note: For fully stabilised see subsection 6(6).
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
(5)In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to 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.
Fully stabilised
(6)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
(bthe 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.
Note: For reasonable treatment see subsection 6(7).
Reasonable treatment
(7)For the purposes of subsection 6(6), 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.
Impairment has no functional impact
(8)The presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned.
Example: A person may be diagnosed with hypertension but with appropriate treatment the impairment resulting from this condition may not result in any functional impact.
Assessing functional impact of pain
(9)There is no Table dealing specifically with pain and when assessing pain the following must be considered:
(a)acute pain is a symptom which may result in short term loss of functional capacity in more than one area of the body; and
(b)chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected; and
(c)whether the condition causing pain has been fully diagnosed, fully treated and fully stabilised for the purposes of subsections 6(5) and (6).
Section 8 of the Impairment Tables sets out what cannot be taken into account.
8Information that must not be taken into account in applying the Tables
(1)...
(2)Unless required under the Tables, the impact of non-medical factors when assessing a person’s impairment must not be taken into account.
Example: Unless specifically referred to by a descriptor in a Table, the following must not be taken into account in assessing an impairment: the availability of suitable work in the person’s local community; English language competence; age; gender; level of education; numeracy and literacy skills; level of work skills and experience; social or domestic situation; level of personal motivation; or religious or cultural factors.
MR COELHO’S MEDICAL STATUS
Mr Coelho told the Tribunal that he was shaving in the early morning of 13 January 2013 morning and collapsed. When he regained consciousness, he thought of his father who had died from a heart condition. He crawled to the telephone and sought emergency assistance. He was then and now living alone. A report by Dr Leo Stockdale of Monash Medical Centre Emergency Department dated 14 January 2013 diagnosed atrial fibrillation and flutter.
On 14 August 2013 Dr J Feiber, Mr Coelho’s general practitioner, provided a medical report in support of Mr Coelho’s first claim for DSP. Dr Feiber stated that Mr Coelho suffered from intermittent AF, had seen a cardiologist and was taking medication.
On 8 October 2013 Dr Feiber provided another report stating that Mr Coelho suffered from Paroxysmal Atrial Fibrillation for which he was taking medication. Dr Feiber stated that Mr Coelho was affected by Episodic AF – 2-3 per week lasting 12 – 16 hours and the condition was likely to remain unchanged for more than 24 months. He also reported that Mr Coelho was unfit for work for the following three months.
In a letter dated 31 January 2014, Dr Nitesh Nerlekar, Monash Heart Registrar, provided a report to Dr Feiber in which he stated:
I reviewed Kishore in Cardiology Outpatient Clinic today with regard to his paroxysmal atrial fibrillation.
At last review his sotalol was increased to 120 mg twice per day due to intermittent breakthrough symptoms and he appears to still have had ongoing symptoms despite this. The move will be to considered commencing him on flecainide, amiodarone or the consideration of a pulmonary vein isolation.
I have had a discussion with Dr Emily Kotschet, Electrophysiologist, regarding this. The concern with amiodarone is obviously the nature of the drug and chronic use with multiple side effects and complications that can be related to it without necessarily the best benefit in controlling his symptoms. With regard to an ablation, as a procedure, it does not come with 100% success rate and is associated with risk due to its invasive nature. Flecainide is probably one of the best options but we need to rule out evidence of any coronary artery disease. The best way to do that would be with a CT coronary angiogram.
I have had a discussion at length with Kishore regarding this. He is very hesitant to undergo any sort of either invasive or radiologic investigation despite the fact that CT coronary angiography now can be delivered with a very low radiation dose. He would like to further think about this before considering it. His symptoms are not causing any detriment to his lifestyle and he feels he is able to tolerate it and maybe there has been some improvement with the increased dose of sotalol but would prefer not to commence anything new if it requires any further investigation
…
On 4 May 2014 Dr John Voukelatos, Consultant Cardiologist, addressed a report to Dr C Lahanis, general practitioner (who practises at a different clinic to Dr Feiber);
Mr. Coelho is a delightful 62 year old man who was seen in my rooms on the 2/5/14. He has a history of paroxysmal atrial fibrillation diagnosed in January 2013 and investigated at Monash Medical Centre. He has been on Sotalol 80 mg/bd and low dose Aspirin since that time. Despite this medication he continues to have episodes 2-3 times a week lasting for 16-18 hours where he experiences palpitations associated with shortness of breath. On 2 occasions he has had syncopal episodes.
He is aware of the palpitations as they cause him shortness of breath and fatigue. He is also aware of a fast erratic heartbeat. These episodes usually revert spontaneously.
…
His systematic questioning reveals he has otherwise been well although does experience some fatigue while on the Sotalol.
…
I suggest we increase the dose of Solatol from 80 mg/bd to 120 mg mane and 80 mg in the evening. I have also suggested that he be referred for consideration of pulmonary vein isolation. I offered to refer him to an Electrophysiologist for an opinion regarding curative pulmonary vein isolation but he was reluctant to have any treatment beyond medication. He will be followed up in 3 months time.
Dr Betty Ho, Cardiologist at Monash Health, provided a report dated 14 May 2014 in which she stated:
…
He has significant symptoms of breathlessness & fatigue, dating from January 2013.
I cannot predict whether the situation will change over the next 2 years.
As the Tribunal had remitted Mr Coelho’s previous application (for further evidence to be obtained in relation to his medical condition) to the respondent, Mr Coelho submitted further supporting documents. Dr Voukelatos provided a letter dated 28 May 2014 confirming that Mr Coelho’s atrial fibrillation was likely to be an ongoing problem for at least two years. Dr Lahanis provided a further medical report in which he stated that Mr Coelho’s symptoms and their impact on his ability to function:
…
Episodes are unpredictable when or where they occur & last for 16-18 hours at an average rate of 2-3 episodes/week. During episodes Kishore experiences fatigue, light-headedness, shortness of breath, unsteady on his feet. He is house bound during episodes & between episodes must avoid exerting himself as exertion triggers off episodes.
On 30 May 2014 Mr Kishore provided a statement to the Tribunal concerning pulmonary vein isolation procedure, stating that he was concerned about a number of issues which meant he would not be undertaking the procedure at least, for now:
1. Success rate. 70% according to DR. Voukelatos
2. Risks. The trans septal puncture not closing completely after the procedure, puncture to the blood vessels in the heart while moving the catheters around, and/or puncture to the lung wall to name a few.
3. Prospect of repeat procedures. The fibres of the Pulmonary vein attempting to reconnect with that of the left atrium, either partly or wholly, and possible gaps in the ablation allowing the impulses to cross over to the LA,
4. As I am currently on Newstart and do not have private insurance, I have to rely on the public hospital system, and do not know when I would meet the two electrophysiologists for an opinion, let alone a procedures. I am unsure about the costs involved and the ability to pay for the procedure to be done in a private hospital on my meagre income.
5. As I live alone, I do not have the care and support needed if there are complications post operative (sic) and that will put me in undue hardship.
On the same day, 30 May 2014, Mr Coelho lodged a fresh DSP claim. On 1 June 2014 Mr Coelho was seen at the Monash Medical Centre Emergency Department at 1.09 am. Notes indicate that he felt better by around 9 am. He was discharged mid-afternoon.
On 16 June 2014 Dr Ben Pang, Cardiac Rhythm Management Fellow at Monash Health provided a report of his consultation to Dr Feiber:
…
He has been seen in the Public Cardiology MonashHeart Outpatients Clinic by Dr Betty Ho and has also seen a private cardiologist, Dr John Voukelatos to attempt to obtain a disability pension for paroxysmal AF. He was referred by Dr Voukelatos to Dr Joe Morton in the Royal Melbourne Hospital for consideration of an atrial fibrillation ablation procedure.
…
…We discussed in detail the causes and the treatments for atrial fibrillation. With regard to possible precipitating causes, I have organised a 24-hour blood pressure monitor and he has an exercise stress test pending. With regard to treatment, he has just been started on an increased dose of sotalol 160 MG be in the Public Outpatients Clinic by Dr Betty Ho only a few weeks ago. We will continue this and I will review him in two months’ time. We discussed in length a possible AF ablation procedure. I will review him in two months’ time. I also advised him that it was preferable that he choose one cardiologist for his ongoing care.
On 1 July 2014 Dr Sandra Armstrong of the Health Professional Advisory Unit (HPAU) of the Department of Human Services undertook a review of Mr Coelho’s health at the request of the respondent in relation to the review of the August 2013 claim. Dr Armstrong noted that she was looking at the period between 9 August 2013 and 8 November 2013. She discusses symptoms and side effects of medication for Mr Coelho’s condition stating:
..Ablation therapy is usually advised for patients with symptomatic paroxysmal atrial fibrillation after treatment failure with anti-arrhythmic medication, or if they have intolerable side-effects with anti-arrhythmic medications. Pulmonary vein isolation is the usual method of catheter radiofrequency ablation therapy used for atrial fibrillation. This therapy is said to be associated with a reduction of treatment failure and symptomatic duration of atrial fibrillation, and improved quality of life, compared to anti-arrhythmic drug therapy. 50% of patients are asymptomatic after this procedure, although it may need to be repeated several times. Complication rates from this procedure have lessened over time and complication rates have also been shown to reduce with increased experience of the practitioner with the procedure. A 2007-2012 study reported an overall [minor and major] complication rate of 2.5% and a 0.06% mortality rate.
…
I consider that Mr Coelho’s atrial fibrillation is permanent and FD but not FTFS during the relevant period, as he has not undergone reasonable treatment, in that he has only had a trial of a single anti-arrhythmic medication without increasing the dose as advised. Mr Coelho did not wish to try an alternative anti-arrhythmic medication, despite his reports of fatigue associated with the use of Sotalol. He is also not willing to consider assessment of his suitability for ablation therapy, despite this now being a well-accepted procedure which is listed in the guidelines for the management of atrial fibrillation. Mr Coelho does not seem to have a medical or other compelling reason to not undertake reasonable treatment [as required by the impairment tables’ guidelines].
On 7 July 2014 Dr Lahanis wrote:
This is to confirm that the electrophysiological procedure suggested to possibly treat Mr Kishore Coelho’s paroxysmal AF of Pulmonary Vein Isolation only has a 70% chance of success but also carries a risk of long term and acute complications including pericardial effusion and pulmonary vein stenosis both acute and chronic.
On 8 July 2014 Dr Feiber responded to questions raised by the respondent stating that his patient’s condition was diagnosed fully, stable and permanent and managed and should be awarded 20 points.
In mid-July 2014 Dr Sarah Gutman of MonashHeart (a cardiology registrar) stated:
I saw Mr Coelho for the first time in Cardiology Outpatient Clinic 16/7/14. He has previously seen my colleagues Dr Betty Ho and Dr Ben Pang. During the period 15 August 2013 to 14 November 2013, he had a diagnosis of paroxysmal atrial fibrillation. He was taking aspirin 100 mg and sotalol 80 mg bd and his condition was well controlled. We do not believe he is a candidate for pulmonary vein isolation and catheter ablation neither then or now. I have discussed this patient with my consultant, Dr Emily Kotschet and we have quoted him a success rate of pulmonary vein isolation and catheter ablation of approximately 30% to 70%. He also asked that I outline the risks of the procedure in this letter which are approximately 2% - 5% risk of adverse event including tamponade, death, cerebrovascular accident and pulmonary vein stenosis.
On 31 July 2014 Centrelink wrote to Mr Coelho stating that he had been granted DSP backdated to 2 June 2014.
On 7 August 2014 Dr Armstrong of the Health Professional Advisory Unit (HPAU) prepared a supplementary report following Dr Gutman’s comments.
The 16/7/14 report from Dr S Gutman states that Mr Coelho is not a candidate for pulmonary vein isolation and that she discussed this with her consultant Dr E Kotschet, who is an electrophysiologist. Dr Gutman also states that he [presumably his paroxysmal atrial fibrillation] is well controlled with his current medication. To me this suggests that Mr Coelho does not have a severe impairment and/or frequent episodes of atrial fibrillation. In my opinion the condition of paroxysmal atrial fibrillation can now be rated as permanent and FDTS as it is “well controlled”. The 8/7/14 report from Dr Feiber does not seem consistent with the report from Dr Gutman and also seems inconsistent with my previous 30/6/14 phone conversation with Dr Feiber, when he told me “He finds the impact of Mr Coelho’s atrial fibrillation difficult to assess. When he is not in atrial fibrillation, he has no issues, when he is in atrial fibrillation he is quite severely impacted. Dr Feiber is unsure how often these episodes occur or the duration of the episodes. Dr Feiber said that Mr Coelho’s cardiologist manages the treatment of his condition, including the medication.” Dr Feiber has rated this condition as 20 points on table 1 in the new report, however it may be that Dr Feiber has not understood the purpose of the impairment tables and assigned an impairment rating for when Mr Coelho has an episode of atrial fibrillation. During my conversation with Dr Feiber he told me that he was unsure how often Mr Coelho had episodes of atrial fibrillation and taking into account that Dr Gutman says the condition is well controlled…On consideration it seems that it is unlikely that Mr Coelho has frequent episodes of atrial fibrillation. I believe that an appropriate rating on table 1 would be 10 points at most.
Centrelink cancelled Mr Coelho’s DSP on 27 August 2014 on the basis that he achieved 10 impairment points, not the 20 points allocated in the original decision granting DSP.
On 3 September 2014 Dr Feiber certified that:
This patient has PAF and is unable to do activities in the foreseeable future as per table 1 (20 points) sections a(i) and (iv) and section b.
On 12 September 2014 Dr Voukelatos wrote to Dr Lahanis stating:
Mr. Coelho was seen in my rooms on the 10/9/14. He continues to have twice weekly episodes of atrial fibrillation lasting up to 18 hours. He has been accepted at the Royal Melbourne for further treatment and has been placed on the waiting list for pulmonary vein isolation as definitive treatment for his condition.
He is still incapacitated by his condition which is likely to be permanent. Pulmonary vein isolation will be curative in about ¾ of patients but there is no guarantee that he will be entirely cured. He will need to continue with his medication and I suggest possibly that we increase the Sotalol to 120 mg/bd plus he continues with his low dose Aspirin.
He has an appointment to be seen by my Electrophysiology colleague regarding his ablation, Dr Joseph Morton, who would have him on the waiting list for this procedure.
On 23 September 2014 Dr Morton wrote to Dr Voukelatos:
…He currently gets episodes around twice a week, but usually it only lasts for 18 hours or less. He showed me an ECG today showing an episode of confirmed AF in August. He has had an echocardiogram which looks more or less normal other than mild atrial enlargement.
…
I went through the procedure of AF catheter ablation with him and explained it has a success rate of 70%, but this success rate may increase to 85% if patients have more than one procedure. Mr Coelho would be a good candidate for an AF catheter ablation because he has very little in the way of other past history. The procedure has risks, but the risk of a major complication is still less than 1%. Commonest complications seen are related to groin discomfort and haematoma formation, pericarditis and throat and oesophageal discomfort. The risk of stroke in my experience is well and truly less than 1% as are the risks of cardiac tamponade and pulmonary vein stenosis. In our recent series which we published, the commonest complication was oesophageal irritation and injury related to the transoesophageal echo approach. There have been no deaths related to cases performed at the Royal Melbourne Hospital in Melbourne Private Hospital.
I think this gentleman should re start Coversyl 2.5 mg daily and should go onto proper anticoagulation with either warfarin or one of the newer oral anticoagulant agents.
I think he would be a good candidate for an AF catheter ablation and if he wishes to proceed I would be happy to offer this procedure to him. My current waiting list at the Royal Melbourne Hospital is between 6 and 12 months. After discussion with him today, he indicated that his preference is not to have an AF catheter ablation procedure. Alternatives for him would therefore be to have a pacemaker inserted and increase the dose of Sotalol or alternatively try drugs such as Flecainide or Amiodarone.
…
On 29 September 2014 Mr Coelho wrote to Centrelink to advise that he did not intend to undergo pulmonary vein ablation procedure as there is no guarantee of a cure or even a response with up to three repeat procedures, while exposing me to new and significant aliments…
On 14 October 2014 Dr Armstrong of HPAU provided a further opinion after reviewing the reports presented since her last opinion:
…Mr Coelho has provided reports from several different cardiologists and GPs, some of which contradict each other. However the 23/9/14 letter from Dr J Morton a specialist cardiac electrophysiologist states that Mr Coelho would be a good candidate for cardiac ablation and that the success rate for this is about 70-85% [for 1 or more procedures] with a serious complication “well & truly less than 1%”. Moreover Dr Morton states Mr Coelho “should seriously consider this procedure” which indicates to me that Dr Morton considers cardiac ablation reasonable treatment. Dr Morton also outlines other treatments Mr Coelho could consider if he prefers not to have cardiac ablation; these include alternative antiarrhythmic medications or a pacemaker. Mr Coelho has stated that Dr Voukelatos is his treating cardiologist and I note that Dr Voukelatos states in his 12/9/14 letter that pulmonary vein isolation [cardiac ablation] is a definitive treatment and is “curative in about ¾ patients, although no; guarantee he will be entirely cured” [even though Dr Voukelatos also states his condition is likely to be permanent]. I have previously been provided with a 16/6/14 letter from a Dr B Pang a cardiologist and cardiac rhythm fellow, which states that Dr Pang discussed treatments [including cardiac ablation] for AF and organized further investigations. This medical evidence supports Mr Coelho’s condition being FD but not FTFS.
On 9 November 2014 Dr Voukelatos provided a further report following a consultation on 3 November 2014, stating:
…He is currently on Sotalol 120/80 mmHg and recently commenced onto Apixaban 5 mg/bd.
He has been seen by an Electrophysiologist who has offered him a chance of a cure of about 70% with one procedure and possible 85% with two procedures. The risks and complications were explained to Mr. Coelho.
At this point in time Mr. Coelho is not happy to proceed with this procedure as he feels the complication rate and also the success rate does not justify him undergoing this procedure. He is satisfied that he needs to continue with medical therapy. He continues however, to have episodes twice a week lasting up to 18 hours and reverting spontaneously.
…
On 21 November 2014 Professor Peter Kistler, cardiologist and electrophysiologist, examined Mr Coelho and provided a report:
…
Kishore’s symptoms have stabilised on Sotalol medication and he has been reviewed by at least three Cardiologists prior to myself, to review his management.
The alternative is pulmonary vein isolation which has a single procedure success of 70%, however may be associated with complications with an incidence of up to of 4-5% on the basis of worldwide registry data. The procedure may cost between $15,000 and $20,000 however this cost is covered by medicare thru the public hospital system.
As such, Mr Coelho will continue on his current dose of medication which has provided adequate stability for his heart condition, as there is no guarantee that significant functional improvement can reliably be expected with ablation.
…
On 27 November 2014 Dr Voukelatos presented a further brief note concerning the success rate of the ablation procedure and Mr Coelho’s wish not to undertake the procedure.
On 3 December 2014 the SSAT affirmed the decision on the basis that Mr Coelho’s paroxysmal atrial fibrillation was not fully diagnosed, fully treated and stabilised so he was unable to be awarded any points on the Impairment Tables.
Mr Coelho provided further reports to this Tribunal. On 7 January 2015 Dr Lahanis confirmed that Mr Coelho had suffered an average of twice weekly episodes of atrial fibrillation which he formally diagnosed in April 2014. He went on to state:
…DURING HIS PRESENTATIONS FOR AF I HAVE WITNESSED IT CAUSE HIM TO FEEL SHORT OF BREATH, LETHARGY FATIGUE AND WHOOZY. HE PRESENTS TODAY AF, CONFIRMED ON ACCOMPANYING ECG TRACING AND I OBSERVED THE ASSOCIATED SYMPTOMS MENTIONED ABOVE. THESE SYMPTOMS HAVE BEEN CONFIRMED BY HIS CARDIOLOGIST WHEN HE ASSESSED HIM EARLIER LAST YEAR.
On 20 January 2015 Professor Peter Kistler wrote to Dr Lahanis stating:
The potential for serious complications for pulmonary vein isolation comprises pericardial effusion/tamponade, stroke, pulmonary vein stenosis and rarely, but lethal atria oesophageal fistula, hematoma, heart attack and damage to the surrounding structures such as the vagus and phrenic nerve.
Current wait list for ablation at The Alfred Hospital is a minimum of twelve months.
On 2 March 2015 Dr Lahanis provided a similar report to that of 7 January 2015 adding:
…IN BETWEEN EPISODES PHYSICAL EXERTION SUCH AS ACTIVITIES OF DAILY LIVING INCLUDING HOUSEWORK CAN TRIGGER A RECURRENCE. EACH EPISODE REVERTS SPONTANEOUSLY.
Dr Lahanis provided a further report on 17 March 2015:
This is to confirm that the report I wrote on 2/3/15 regarding Mr. Kishore Coelho’s Atrial Fibrillation did not suggest that Mr Coelho has fluctuations of his condition but rather that his condition is permanent and stabilized and constantly interferes with his function and limits his activity capacity even though he only experiences episodes up to 3 times a week lasting at least 18 hours which revert spontaneously and recur spontaneously unpredictably with any exertion. The condition is now considered stabilized with the current regime of medication/management and is not likely to show any further improvement therefore considered permanent.
On 23 March 2015 Dr Feiber provided a medical certificate attesting that:
…During episodes of AF which occur 2-3 times per week lasting 18 hours he is short of breath, with dizziness and fatigue. In between episodes exercise triggers AF again. Due to this he is unable to do activities as per table 1 (20 points) section a(i) and (iv) AND SECTION B.
On 29 May 2015 Professor Kistler wrote:
Further to my letters dated 21st November 2014 and 20th January 2015, I do not believe Kishore Coelho is a candidate for pulmonary vein isolation.
The Tribunal had before it several Job Capacity Assessments providing differing opinions on the points, if any, to be allocated to Mr Coelho depending on their timing and the recent views of the various treating doctors and that of Dr Armstrong of HPAU.
Mr Coelho and the respondent provided written submissions and further comments during the hearing. Mr Coelho provided a written submission on 6 June 2015 in which he summarised the medical evidence and the reasons why he has chosen not to undertake the ablation process.
During the hearing, Mr Coelho said that he had modified his lifestyle due to his condition. He described his initial experience of atrial fibrillation and the impact on him. He also spoke of seeing various doctors and specialists. He spoke of Dr Ho’s prescribing double the dose of Sotalol and the negative impact on him of too high a dosage.
Mr Coelho described how he handles things when he is suffering from an episode and how he has learned to deal with it. He said that if he exerts himself, it may trigger an episode. Others now do most of his housework for him.
There are a number of issues that the Tribunal needs to grapple with in this matter: Is it reasonable for Mr Coelho to refuse pulmonary vein isolation treatment when it has a relatively high success rate? Had all other reasonable treatments been tried as at the date of cancellation? How should points be allocated from the Impairment Tables when Mr Coelho’s condition differs markedly when he is suffering an episode of PAF as opposed to when he is not?
The Full Federal Court in Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Jansen [2008] FCAFC 48 concerned a DSP claimant who declined to undergo particular treatment. While the current Impairment Tables differ from those that were in place at that time, the principles and the wording of the reasonable treatment provisions are similar although the decision making process differs in terms of who allocates the points. In Jansen, the Court stated:
38 In this case it is quite clear from the context provided by clause 6 of the Introduction … that whether the person’s reason for refusing treatment is compelling is to be determined by the relevant medical officer. When the Introduction refers to functional improvement not being expected or there being "a medical or other compelling reason" for the person not undergoing further treatment, it does not contemplate separate decision makers. It is the medical officer who must assign impairment rating and it is he or she who must decide if the reason for the person not undertaking treatment falls within the circumstances identified in the Introduction.
39 As Mr Hanks put it, the appropriate question for the decision maker to ask is, "Am I satisfied that there is a reason that compels, in this case, Mr Jansen ... not to undertake treatment?" Put this way it is not a choice between mutually exclusive objective and subjective tests but a simple formulation which involves some elements of each. We agree that is the correct approach to the construction of clause 6. It follows that the primary judge erred in focusing on the purely subjective aspect of the test in clause 6 [of the Social Security (Tables) Determination]
In relation to the pulmonary vein isolation treatment, the respondent submits that Mr Coelho’s refusal to undergo the treatment on the basis that success is not guaranteed is not a compelling reason not to undertake that treatment.
5.13 …An objective consideration of whether there is a compelling reason not to undertake that procedure where there is a very high success rate predicated, and a low percentage of risk, must be made having regard to the severity of the impact of the condition. If Mr Coelho’s evidence as to the severity, duration and frequency of his episodes of atrial fibrillation is accepted, then the severity of that impact may well mean that it is reasonable for a person to undertake a procedure that has relatively high risks associated with it.
Dr Sandra Armstrong of HPAU was initially of the opinion that Mr Coelho should undertake ablation therapy citing an over 50 per cent success rate and diminishing complications arising over the years for that treatment. She later suggested that Mr Coelho’s condition was stabilised and that she believed that an appropriate rating on table 1 would be 10 points at most.
Dr Lahanis, one of Mr Coelho’s general practitioners, noted on 7 July 2014 that the procedure carried only a 70% chance of success. He stated in March 2015 that he believed Mr Coelho’s condition had stabilised at the time of cancellation. He also provided corroboration that Mr Coelho suffered from an episode whilst he was seeing him. The SSAT had raised the issue of corroboration of Mr Coelho’s condition.
Dr Gutman, a cardiology registrar who consulted with an electrophysiologist, Dr Kotschet, emphatically stated that they did not believe Mr Coelho should undertake the procedure. It was after Dr Gutman’s correspondence that Dr Armstrong changed her mind and considered that Mr Coelho’s condition was fully treated and stabilised. Mr Coelho’s DSP was cancelled after Centrelink’s receipt of Dr Armstrong’s second opinion. A week after the cancellation on 3 September 2014, Dr Feiber, Mr Coelho’s other general practitioner, wrote to Centrelink stating that he believed Mr Coelho warranted 20 points.
On 12 September 2014, Dr Voukelatos, one of Mr Coelho’s cardiologists, stated that Mr Coelho was on the waiting list for pulmonary vein isolation which was the definitive treatment for PAF. He was also to see Dr Morton, electrophysiologist, in the future. Mr Coelho saw Dr Morton on 23 September 2014 who expressed the opinion to Dr Voukelatos that Mr Coelho was a good candidate for the procedure and that the risk of a major complication was less than 1%. Dr Morton also suggested additional medication that should be taken. Dr Morton also suggested that if Mr Coelho did not wish to have the AF catheter ablation procedure, consideration should be given to having his medication dosage increased; trying a change in medication with alternative drugs; or having a pacemaker inserted.
Dr Voukelatos’s 9 November 2014 report describes Mr Coelho’s decision not to have the procedure but does not mention his view of Mr Coelho’s decision. He also states that Mr Coelho had recently begun trialling other medication (Apixaban) as he still experienced episodes of PAF twice a week for 18 hours or so.
On 21 November 2014 Professor Kistler advises that Mr Coelho does not have a guarantee of success with the suggested procedure. In January 2015 Professor Kistler wrote to Dr Lahanis about the possible complications. In March 2015 Professor Kistler again stated that he did not believe Mr Coelho was a candidate for pulmonary vein isolation, and that his condition was permanent.
As indicated above, the medical opinions go in opposite directions as to whether Mr Coelho should undergo pulmonary vein isolation. Mr Coelho’s subjective opinion is that he is not prepared to have the treatment for a range of reasons set out earlier. There are electrophysiologists who agree with Mr Coelho and others who think he would be a good candidate for the procedure.
Given there are strong objective opinions from relevantly qualified doctors that he should not undergo the procedure as well as his subjective opinion, the Tribunal is prepared to accept that there is a medical or other compelling reason for him not to undertake reasonable treatment.
Unfortunately, that does not automatically lead to the conclusion that Mr Coelho was fully treated and stabilised on the date of cancellation of his DSP, 27 August 2014.
On 27 August 2014 Mr Coelho had yet to see Dr Morton. He had seen cardiologists and general practitioners on many occasions, all of whom agreed that he suffered from PAF. Mr Coelho had seen Dr Pang, Cardiac Rhythm Management Fellow, on 16 June 2014 with Dr Pang suggesting a blood pressure monitor, exercise stress test and review some two months after that. On 12 September 2014 after a consultation, Dr Voukelatos considered upping Mr Coelho’s medication.
The appointment with Dr Morton on 23 September 2014 was some four weeks after the cancellation. Dr Morton suggested that if Mr Coelho was not proceeding with pulmonary vein isolation, he should be on additional anticoagulation medication. Dr Morton also raised the possibility with Dr Lahanis of a pacemaker or that other named drugs be tried given Mr Coelho continued to suffer two or three episodes per week on his current regime.
The Tribunal is not satisfied that on the date of cancellation, all reasonable treatment for Mr Coelho’s PAF had been considered and undertaken. The Tribunal is therefore not satisfied that the condition was fully treated and stabilised during the relevant period. Consequently, no points can be awarded under the Impairment Tables. Therefore Mr Coelho does not meet section 94(1)(b) of the Act and the cancellation of his DSP was valid.
Mr Coelho’s general practitioners did not identify any other medical conditions that are not well-controlled.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 66 (sixty-six) paragraphs are a true copy of the reasons for the decision herein of Ms Regina Perton, Member [sgd]........................................................................
Administrative Assistant
Dated 14 December 2015
Date of hearing 14 July 2015 Applicant In person Advocate for the Respondent Andrew Shelley - Sparke Helmore
Key Legal Topics
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Appeal
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Judicial Review
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Procedural Fairness
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Statutory Construction
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