Govindarajula Naidu and Secretary, Department of Social Services (Social services second review)

[2018] AATA 2244

Govindarajula Naidu and Secretary, Department of Social Services (Social services second review) [2018] AATA 2244 (2 May 2018)

Division:GENERAL DIVISION

File Number(s):      2017/4012

Re:Ravikumar Govindarajula Naidu

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member M J McGrowdie

Date:2 May 2018

Date of written reasons:        10 July 2018

Place:Sydney

For the reasons given orally at the conclusion of the hearing of this matter on 2 May 2018, the Tribunal affirms the decision under review, dated 5 June 2017.

.......................[sgd].................................................

Senior Member M J McGrowdie

CATCHWORDS

SOCIAL SECURITY – refusal of disability support pension – whether conditions fully diagnosed, treated and stabilised – Tribunal satisfied that applicant’s conditions are fully diagnosed – whether conditions have significant impact on applicant’s functioning - applicant not enrolled in or excused from program of support - decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) – s 94

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) – s 11(5)

REASONS FOR DECISION

Senior Member M J McGrowdie

10 July 2018

1. Mr Naidu was the applicant for the disability support pension with the application having been made on 21 September 2016.  The application was refused and the refusal was confirmed by an authorised review officer.  Mr Naidu then appealed to the tribunal and a hearing was conducted before Member Benk in the Social Services and Child Support Division of the tribunal and the member affirmed the decision.  Mr Naidu then lodged an application to the tribunal for a second peer review.

2. Mr Naidu has made a number of unsuccessful applications to Centrelink dating back to 2006.

3. In assessing Mr Naidu’s eligibility for the disability support pension, the tribunal must look at his various health conditions and determine whether he gets sufficient points and meets other qualifications for an entitlement to the pension.  Mr Naidu is now 64 years of age.  He had a work related injury in 2002 which involved a significant injury to his cervical spine resulting in neck pain and pain in the arms.  The injury was not a frank injury but rather was related to repetitive lifting within a short period of time.

4. Dr Kam, neurosurgeon, in a report dated 8 November 2017 provides a diagnosis of cervical spondylosis with spinal cord compression at the C5/6 level and also evidence of myelomalacia seen on an MRI scan.  Dr Kam describes how, over the course of years subsequent to the work events, there has been progressive compression of the spinal cord which would be, in Dr Kam’s view, benefitted by surgery.  Indeed, Mr Naidu is booked in for cervical spine surgery next week with Dr Kam.

5. Apart from that work related condition, Mr Naidu also suffers from a number of other health related issues.  He has low back pain which was also work related and that causes some problems in his legs as well, particularly the left leg and further, in particular, his left knee and left ankle.  The applicant has indicated that in his discussions with Dr Kam, it has been proposed that once the surgery to the neck has settled, then surgery of the lumbar spine is something which is then to follow.  I should mention that in the work related injury to the applicant’s cervical spine, not only does he have symptoms in the arms but he also suffered injury to his right shoulder.  It is hoped that the cervical spinal surgery will provide some relief.  Further to the injury to the cervical spine, the applicant developed some partial facial paralysis on the left side in that there was some drooping of his left cheek.

6. He believes that that is the result of a neurological effect of the injury to the cervical spine and that condition has to be looked at in terms of its effect, if any, on the applicant’s speech.  I will come back to that matter in a short time.  The applicant suffers from hypothyroidism and that is controlled by taking medications.  In addition, and probably as a result of ingesting pain relief medication, he developed gastrointestinal symptoms and is treated for that with medication which keeps that condition under control.  He also has regular colonoscopies, endoscopies and blood tests.

7. Further, he suffers from hypertension and high cholesterol and these conditions are controlled by the taking of medication.  Additionally, there is a mental health condition, namely a psychological condition, which Mr Naidu says is largely secondary to the pain and difficulties he has had with managing his various other conditions and, in particular, his cervical spinal condition as well as what might colloquially be referred to as “battling the system.”  Mr Naidu received worker’s compensation as a result of his workplace injury but then had to battle to get the payments increased to a proper and higher level.

8. Nonetheless, and probably in accordance with the legislation, payments were made to a date in 2013 at which time payments stopped.  Mr Naidu has also battled in his attempts to obtain welfare payments under the social security system and, in particular, in respect of the disability support pension.  He nonetheless manages the psychological condition and does not consider it necessary for him to undergo counselling as he has an appreciation of what it is that is causing him the stress and he manages it as best as he can and does fairly well at doing that.

9. This matter was before me earlier this year and the matter was adjourned so that the applicant could obtain a report from a psychiatrist, Dr Singh, who he saw in 2015 and he was having problems getting a report from her.  During the intervening period from the adjournment until today, Mr Naidu has managed to get a report from Dr Singh, namely a report dated 9 March 2018.  Dr Singh confirms a diagnosis of adjustment disorder which is chronic with some depression in respect of it and also anxiety.

10. I do consider that a diagnosis of a mental health condition would date from when the applicant was seen by Dr Singh in 2015 and provides a valid diagnosis of his condition at the time he submitted the current application to Centrelink.  However, Dr Singh does recommend psychotherapy sessions if the applicant was to engage appropriately to address any underlying issues.  As I have indicated, Mr Naidu does not consider that this is necessary as he is managing his condition and understands it.

11. There is a question that does arise, however, whether it can be said that that condition is fully treated and stabilised given Dr Singh’s recommendation for some counselling.  That ultimately is a matter for Mr Naidu to discuss with his general practitioner or not.  In addition to the conditions I have already referred to, there is also some hearing loss.  The applicant suffers from some tinnitus and some hearing loss in the left ear which is referred to by Dr Kevin in his report of 26 November 2009 and which indicates a hearing loss in the left ear of 7.2 percent loss of hearing which equates to a three percent binaural hearing loss.

12. This does not appear to unduly affect the applicant’s speech ability in terms of assessment that would come under table 11 of the tables used in respect of the assessment of permanent impairment for the purposes of social security claims and is headed Hearing and Other Functions of the Ear.  It is a similar position with regard to the mild and partial facial paralysis which does not appear to give rise to terms of the faculty of speech.  They are all the conditions which Mr Naidu suffers from and which, I am sure, cause him a great deal of discomfort and distress and which are difficult for him.

13. The tables I have referred to under the social security legislation, however, are tables which look at permanent impairment in terms of the impact of conditions on functionality or activities.  That is, they are function based rather than diagnosis based.  I accept that Mr Naidu does, in fact, have each of those conditions of which he complains and I am satisfied that they are diagnosed conditions.  However, as indicated, I must look at the functional effect of those conditions.  I must also look at whether or not the conditions have stabilised and/or have been fully treated.

14. Section 94 of the Social Security Act 1991 provides that a person is qualified for disability support pension if the person has a physical, intellectual or psychiatric impairment and the person’s impairment is 20 points or more and the person relevantly has an inability to work.  Each of those conditions must be satisfied.

15. As I have said, I do accept that Mr Naidu has the physical conditions and the psychological condition of which he complains.  One then goes to the assessment of those conditions under the tables if the conditions are fully treated and stabilised.  A condition is fully stablished if the person has either undertaken reasonable treatment and any other reasonable treatment is unlikely to result in significant functional improvements or that even with reasonable treatment the condition would be unlikely to improve.

16. The existence of a diagnosed condition will not necessarily result in a rating being assigned under the tables and where an impairment has no function or impact, a zero rating must be applied (see the tables in this regard and section 11(5) of the rules for the application of the impairment tables).  I will now go to each of the conditions.  With respect to the neck, right shoulder and arms, noting that the applicant is to have surgery to his spine next week, it could not be concluded that the conditions have been fully treated or yet stabilised.

17. That will depend on Mr Naidu undertaking the surgery and the necessary rehabilitation following the surgery to aid his recovery and to stabilise.  I move now to the lower back condition.  Centrelink was of the view that that condition had been fully diagnosed, treated and stabilised and allowed five points.  Noting, however, that Mr Naidu is contemplating surgery for his lower back, again, I would feel that that condition is one which has not yet been fully treated or stabilised given the course that is proposed.

18. None of this is, by any means, any criticism of Mr Naidu but is simply what is the proposed treatment of these conditions.  It would seem that up to this point, Dr Kam has been more concerned with Mr Naidu’s neck condition which is a serious one and that at this point, the lower back condition is taking second place.  That is also consistent with what Mr Naidu says to the tribunal and that his neck is a more serious condition than his back condition although, of course, he would not dismiss either as being a problem for him.

19. The neck condition, as I have indicated, affects not only his neck but his shoulders and arms and even the left hand side of his face.  It is a condition which one could well understand is proposed to be dealt with by way of surgery.  I think there would need to be more up to date evidence in relation to the lumbar spine before any impairment could be properly assessed or attributed.  I would not, on the evidence currently available, conclude that the lumbar condition is fully stabilised or fully treated and, of course, the lumbar condition also includes the problems in the lower limbs.

20. With regard to the lower limbs, there are also the problems with the left knee and the left ankle.  There is not, in the medical evidence, any indication of there being any distinct pathology in the left knee or the left ankle other than it being as a result of the condition of the low back which Mr Naidu suffers.  Coming now to the hyperthyroidism, the Department does consider that that condition has been fully diagnosed, treated and stabilised but attributed zero points.  The applicant takes medication for that condition and in a phone session between Dr Bonovas, the applicant’s long term general practitioner, and a job capacity assessor, it appeared to be Dr Bonovas’ view that the problems do not currently result in any functional impairment.

21. Similarly with the circulatory system, namely the hypertension and high cholesterol which is controlled by medication. The same could be said for the gastrointestinal condition which is monitored and treated by way of medication quite effectively.  Accordingly, I do not believe I can attribute any functional impairment to the hyperthyroidism, the hypertension and high cholesterol or the gastrointestinal condition.  So far as the psychological condition is concerned, I have mentioned that Dr Singh believes that some therapy sessions would be beneficial.

22. I think that until a decision is made by the applicant in consultation with his general practitioner, Dr Bonovas, as to what should be done, that it is very difficult to say that that condition has been fully treated even to the extent that treatment has commenced.  I am also mindful of the fact that the applicant says he manages that condition and that it is secondary to his physical ailments and his having to battle the system.  Accordingly, although I am not satisfied that it has been fully treated in terms of the legislation, I do not see how there is any significant impact on Mr Naidu’s functioning, particularly given that there is nothing in Dr Singh’s report which supports a functional impairment.

23. Dr Singh commented in her report that speech was coherent, that eye contact was good and appropriate and whilst she noted some anger and at times flatness, Mr Naidu was not restricted and responded appropriately in terms of speech, thought organisation, processing and flow.  She did not consider that there was any formal thought disorder or perceptual abnormalities.  I do consider though that Mr Naidu would be best served to discuss what further is to be done in relation to that before the matter were to be assessed if, in fact, a determination could be made sometime in the future that the condition had been fully treated and stabilised.

24. There is the hearing loss, which I have already discussed, and although there is a condition affecting the left ear, it does not appear to have a functional impact. Similarly with the tinnitus in the left ear.  If then the neck and upper limbs were left for future consideration, and also the lumbar spine and the legs left for future consideration, and thirdly, similarly, the psychological condition, that leaves an assessment to be made of the hyperthyroidism, the circulatory system, the hypertension and high cholesterol and the gastrointestinal condition and it certainly appears that, based on the evidence which is before me which includes notes of the conversations between the job capacity assessor and Dr Bonovas, that there is really very little that would suggest that there is anything other than a mild impairment in relation to those conditions and a mild functional impairment does not necessarily correlate with the specific impairment set out in the tables.

25. In terms of the tables, it would be my view that no functional impairment is demonstrated or evidenced in relation to those conditions.  I have already dealt with the hearing condition and in terms of that, that would not attract an impairment.  It might well be that Mr Naidu would get a significant assessment for his neck and arms in due course and for his lower back and legs in due course.  He is also a candidate for assessment in relation to the psychological condition.  However, that is not the case today.

26. In terms of the legislation, even if the applicant was to get a combined assessment of 20 points or more for his various conditions, he would still have to satisfy the requirement in relation to an inability to work.  Under the legislation, the applicant would be required to be in a program of support or either excused from it. Mr Naidu, who thinks that he might have some capacity to work in some lighter form of work, however, has not enrolled in a program of support and therefore the only way he could succeed in obtaining the disability support pension would be to have an assessment of permanent impairment for any one item or any one condition of 20 points.

27. If he did, then that would excuse him from having to participate in a program of support.  Given all I have said, the determination I make is to affirm the decision under review.  That is the decision only, of course, on this application and does not affect the future or any other application that he might make.

I certify that the preceding 27 (twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member M J McGrowdie

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Associate

Dated: 10 July 2018

Dates of hearing:	13 December 2017 and 2 May 2018
Applicant:	In person
Solicitors for the Respondent:	Mr J Kim, Department of Human Services