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

[2015] AATA 491

Karaga and Secretary, Department of Social Services (Social services second review) [2015] AATA 491 (8 July 2015)

Division	GENERAL DIVISION
File Number	2014/6446
Re	Radomir Karaga
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Miss E A Shanahan, Member
Date	8 July 2015
Place	Melbourne

The Tribunal affirms the decision under review.

........................[Sgd]........................................

Miss E A Shanahan, Member

SOCIAL SECURITY – pensions and allowances – application for the disability support pension – chronic pain syndrome secondary to major trauma in 1990 – chronic obstructive airways disease – depression and anxiety – are conditions fully diagnosed, treated and stabilised – no evidence of chronic obstructive pulmonary disease – chronic pain syndrome not fully treated and stabilised – impairment rating of 20 points not attracted – evidence that applicant has been working – decision affirmed

Legislation

Administrative Appeals Tribunal Act 1975

Social Security Act 1991
Social Security (Administration) Act 1999

Social Security (Tables for the Assessment of Work-related Impairment for
Disability Support Pension) Determination 2011
Social Security (Requirement and Guidelines – Active Participation for Disability Support Pension) Determination 2011

Cases

Augustynski and Secretary, FaHCSIA [2013] AATA 507
Budisa and Secretary, Department of Social Services [2014] AATA 79
Crossland and Secretary, Department of Family and Community Services [2004] AAT 864
Hamal and Secretary, Department of Social Services (1993) 30 ALD 517
Tey and DSS [2013] AATA 753
Li and Secretary, Department of Employment and Workplace Relations (2007) 96 ALD 769
O’Bryan and Secretary, Department of Social Services [2014] AATA 590
Secretary, Department of Family and Communication Services and Bell (1998) 52 ALD 472
Secretary, Department of Family & Community Services v Michael (2001) 116 FCR 500
Spry and Secretary, Department of Social Services and Anor [2014] AATA  722
VMXC and Secretary, FaHCSIA [2013] AATA 663
Woodiwiss and Secretary, Department of Family and Community Services [2003] AATA 846

REASONS FOR DECISION

Miss E A Shanahan, Member

8 July 2015

1. Mr Karaga was receiving compensation payments from the Transport Accident Commission (TAC). The TAC advised him that his compensation payments would be cancelled as of 23 April 2014, as his level of impairment was now assessed to be less than 50 per cent.  Mr Karaga then lodged a claim with Centrelink for the disability support pension (DSP) on 10 April 2014.  Due to an administrative oversight, the compensation payments did not cease until 12 August 2014.

2. On 19 May 2014, Centrelink had a job capacity assessment (JCA) performed on Mr Karaga. Mr Karaga received an impairment rating of 10 points, with 5 points for spinal function and 5 points for mental health function, under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables).   His chronic pain syndrome was not assigned an impairment rating although this was his major complaint, as a pain management program was indicated.  Mr Karaga was assessed as having a base line work capacity of 15-22 hours per week, remaining at a similar level two years hence. 

3. Mr Karaga lodged an application for review of the Centrelink decision. An authorised review officer (ARO) from Centrelink affirmed the decision on 26 September 2014. Mr Karaga lodged an application with the Social Security Appeals Tribunal (SSAT) for further review. On 12 November 2014 the SSAT concluded that Mr Karaga’s chronic pain syndrome attracted an impairment rating of 10 points under Table 1. Mr Karaga’s psychiatric disorder was not considered to be fully diagnosed as he had not seen a psychiatrist or a clinical psychologist for some years. Despite this, the SSAT allotted an impairment rating of 5 points to his depression under Table 5. Mr Karaga’s total impairment rating was therefore 15 points and he did not satisfy s 94(1)(b) of the Act. As a result, the SSAT affirmed Centrelink’s decision.

4. Mr Karaga applied to the Administrative Appeals Tribunal on 15 December 2014 for review of the SSAT decision. 

5. At the hearing Mr Karaga was represented by Mr Douglas James of counsel, instructed by Hyman Solicitors. Ms Ailsa Bramley, an advocate of the Department of Human Services, appeared on behalf of the Secretary, Department of Social Services.  Mr Karaga and the Tribunal were assisted by an interpreter in the Serbian language. Mr Karaga gave evidence to the Tribunal under oath.

6. The Tribunal was provided with the documents lodged by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975. These are marked Exhibit R1. (T-documents and ST-documents).

7. Mr James tendered Mr Karaga’s statement of 24 April 2015 and this was marked Exhibit A1. 

   BACKGROUND TO THE APPLICATION

8. Mr Karaga migrated from Serbia to Australia in 1988. He married shortly after his arrival but the marriage seems to have been dissolved within 18 months.  He worked as a process worker in a metal fabrication plant.

9. On 21 September 1990 he was involved in a motor vehicle accident. This apparently occurred at 1.00 am and he has no memory of events until some 24 hours later when he awoke in hospital. 

10. Mr Karaga suffered a penetrating injury to his left chest at the level of the seventh rib.  A solid metal bar approximately 2cm by 2cm and 50 centimetres in length had penetrated his left chest, causing a pneumothorax and haemothorax.  He suffered a closed head injury and lacerations to his occipital area, the right side of his face and the right knee.  He was taken to The Alfred Hospital where he underwent a left thoracotomy to remove the steel bar.  Haemostasis was secured. There was minor contusion to the left lower lobe of the lung and the comminuted fracture sites in the sixth, seventh and eighth ribs were resected. The scalp, facial and knee lacerations were sutured.

11. On the same day Mr Karaga underwent an exploratory laparotomy to exclude any intra-abdominal or sub-diaphragmatic injury.  No abnormal findings are recorded.  It would appear Mr Karaga made an uneventful recovery.   He was discharged from hospital on 2 October 1990. He underwent some six weeks of rehabilitation at the TAC facility in Mount Waverley.  Mr Karaga has continued to suffer from left chest pain since the accident.  He claims not to have worked since the motor vehicle accident.  However, there is video surveillance evidence of him working in a manually demanding job − installing air-conditioning units − in 2009. 

12. In his statement (Exhibit A1) Mr Karaga described the continuing left chest pain which interferes with his sleep, his ability to sit and his ability to drive for longer than about 30-45 minutes.  He also experiences pain at the back of his head, the right side of his neck and in his left shoulder.  The occipital and neck pains appear to relate to the area of laceration suffered in the motor vehicle accident, as does that in his right cheek.  He also complains of occasional pins and needles (paraesthesia) in his legs. He has noted difficulty in lifting articles with his left arm, as this results in pain in his left shoulder.  Lifting objects also causes pain in his left ribs.

13. Mr Karaga is able to drive a car with automatic gears, shop at the local supermarket, make himself a sandwich, toast or coffee and he says on a nice day he will do some pruning.   However, all of these activities are limited by his left chest pain.  He relies on his female cousin to perform day-to-day tasks such as housework and cleaning, washing his clothes and, in particular, vacuuming.  He is unable to make his bed because of pain associated with the activity.  Mr Karaga states that before the accident he socialised normally but now prefers to sit at home and watch television.

14. Mr Karaga currently takes Panadeine Forte four times per day, Oxycodone twice daily and, as of 31 March 2015, he has been taking Gabapentin twice a day. 

15. Mr Karaga claims that as a result of his physical injuries he has developed depression which is manifested by poor sleep, tiredness and occasional dreams relating to the accident.  He finds he is easily annoyed and becomes tense with minimal stress.

16. Mr Karaga has been using a TENS machine to control his pain for over 20 years.  He uses this for an hour in the morning and an hour in the evening and while the TENS machine is active his pain is well controlled.  In addition to his motor vehicle related pain, Mr Karaga is said to also suffer from gastro oesophageal reflux disorder (GORD) and chronic obstructive airways disease. 

17. The medical reports, most of which were generated for TAC purposes, record that in 1994 Mr Karaga was admitted to Dandenong Hospital with a small bowel obstruction.  He underwent a laparotomy at which the bowel obstruction was found to be due to adhesions relating to the procedure of 1990.  The adhesions were divided and it was not necessary to resect any bowel.  His bowel function recovery was delayed but eventually returned to normal before his discharge from hospital. 

18. In November 2014 Mr Karaga was again admitted to Dandenong Hospital.  He had attended a clinic in Narre Warren where he was not known, complaining of left chest wall pain.  The extent of the physical examination conducted at the clinic is unclear, however a chest x-ray was ordered and this reportedly showed several fractures involving the ninth and tenth ribs on the left side.  Mr Karaga was then referred urgently to Dandenong Hospital where he was admitted on 25 November 2014. He underwent CT scanning which showed some minor opacification in the left lower lobe area.  He was discharged on 27 November 2014.

19. In his evidence before the Tribunal, Mr Karaga stated that he was now experiencing pain in his right chest, the middle of his back and his lower lumbar spine.

20. The vast majority of the medical reports provided to the Tribunal were generated for Mr Karaga’s TAC claims and for review purposes in the first half of 2014, when the TAC was determining whether to cancel his compensation payments.  The reports include those of:

    ·Dr Millar, an otolaryngologist, reporting on Mr Karaga’s relatively minor hearing loss;

    ·Dr Colman, reporting on Mr Karaga’s GORD;

    ·Mr Mangos, a general surgeon, opining on the chest and superficial chest injuries and superficial lacerations;

    ·Mr Stapleton, a plastic surgeon, whose opinion was sought on scarring as the result of the motor vehicle accident;

    ·Dr Burdon, a respiratory physician, who assessed Mr Karaga’s respiratory function;

    ·psychiatrists Dr Entwisle and Dr Strauss, who provided reports and opinions regarding Mr Karaga’s chronic depression and anxiety;

    ·Professor Rubinfeld, who also assessed Mr Karaga’s respiratory function; and

    ·Dr Drury, a neurophyscologist, who performed neuropsychological assessment at the request of both the TAC and Mr Karaga’s then legal representative Maurice Blackburn Lawyers. 

    These documents will be referred to under the documentary evidence.

21. The Tribunal was not provided with copies of the surveillance video to which many of the reporting specialists referred.  Mr Karaga had not seen the video himself.

EVIDENCE BEFORE THE TRIBUNAL

Mr Karaga

1. Mr Karaga adopted the content of his statement and confirmed his current medication (his medication chart was tendered to the Tribunal and marked Exhibit A2).  It became clear that in fact he has only been taking Gabapentin since 31 March 2015, following his referral to Dr Clayton Thomas, a pain treatment specialist.  Mr Karaga indicated to the Tribunal that the pain in his left chest was anterior to the sites of the fractures of his sixth, seventh and eighth ribs.

2. Under cross-examination by Ms Bramley, Mr Karaga confirmed his general low level of activity, spending most of his time watching television, attending medical appointments and shopping in nearby shopping centres such as Fountain Gate.  He drives his car to the local chemist two kilometres away to obtain his medication and is able to walk 500 metres but needs to rest during the walk because of his chest pain.  When asked if he was, as reported by Dr Entwisle, able to prune trees, mow lawns and trim his roses, he stated he did not do these things and he does not have any rose bushes.

3. Mr Karaga confirmed that he had been taking Prothiaden for depression for some years and that he has been on Oxycodone since 27 November 2014, when he was discharged from Dandenong Hospital.  He provided details of that hospitalisation in that he had seen a Dr Sam Micut who was totally unfamiliar with his past history. After a chest x-ray Mr Karaga was referred, and admitted urgently, to Dandenong Hospital. 

   DOCUMENTARY EVIDENCE BEFORE THE TRIBUNAL

   Psychiatric and Neuropsychological opinions

4. Mr Karaga has been assessed by Dr Entwisle, who provided a report dated 19 February 2013, Dr Nigel Strauss who reported on 26 June 2014 and by Mr James Drury who provided an opinion based on his neuropsychological testing of Mr Karaga.

5. Dr Entwisle made a diagnosis of an Adjustment Disorder with Depressed and Anxious Mood with mild symptoms of traumatisation attributable to his chronic pain.  However, the surveillance video material provided to Dr Entwisle raised questions with him as to Mr Karaga’s ability to work.  As a result of that material, Dr Entwisle considered that Mr Karaga’s inability to work could not be due to any physical impairment and while there might be some contribution by his depressive condition, he believed Mr Karaga retained the capacity to work. 

6. Dr Nigel Strauss also made a diagnosis of Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood and chronic pain syndrome.  Even after watching the video, Dr Strauss was not convinced that Mr Karaga had been particularly active or had worked for long periods.  Dr Strauss concluded that while Mr Karaga only needed minor help in terms of his day-to-day activities, when all factors were considered he was totally and permanently incapacitated and will never work again. 

7. Mr Drury performed extensive neuropsychological testing of Mr Karaga and concluded that there was probably a multifactorial basis to Mr Karaga’s declared cognitive difficulties relating to memory, concentration and the fact that Mr Karaga feels that his speed of thinking is slower since the accident. Mr Drury concluded that there had been a mild concussive brain injury but that there is a very strong indication of [Mr Karaga’s] feigning of cognitive function. As a result it was difficult to determine his underlying cognitive capacity, particularly as the surveillance video demonstrated that he was able to undertake general practical tasks. 

8. Given that Mr Drury considered that Mr Karaga’s description of his physical limitation was embellished, the neuropsychologist adopted a degree of scepticism in relation to all reported symptomatology.

   Assessment of Claimed Chronic Obstructive Pulmonary Disease

9. Dr Jonathan Burdon saw Mr Karaga on 19 June 2014 and noted the past history of Mr Karaga’s chest injury and his reports of breathlessness, said to be short-lived and to vary depending on the day and how far he walked.  Mr Karaga told the doctor that he smokes 10-15 cigarettes per day and has done do for many years.  

10. Dr Burdon concluded that the 1990 injuries had not produced any significant impairment to Mr Karaga’s respiratory system; nor were they likely to do so in the future.  He found him capable of undertaking employment of a sedentary or light duties nature.  Any limitation of physical activity – such as an inability to lift heavy objects − was mainly due to the chest pain rather than any dyspnoea.  Lung function testing revealed only minor changes consistent with Mr Karaga’s smoking history and a lung impairment of zero. 

11. Associate Professor Rubinfeld saw and assessed Mr Karaga on 4 March 2014 and performed lung function testing which is reported as showing Normal Spirometric indices.  Mild impairment of CO [carbon monoxide] diffusion.  Blood testing showed the latter to be: consistent with [his] current smoking history. 

12. Associate Professor Rubinfeld opined that given  that Mr Karaga had not worked for 24 years and in light of his mental state and chronic chest wall pain he considered him unable to work reliably in any significant position.

13. The opinions of Dr Colman regarding Mr Karaga’s mild GORD, of Mr Mangos on the results of the abdominal surgery and of Dr Stapleton and Mr Marshall (plastic surgeons) regarding scarring and Mr Karaga’s unrelated surgery to correct Dupuytren’s contracture are irrelevant because these conditions in no way contributed to any limitation in the performance of Mr Karaga’s daily living activities or capacity for work.

14. Dr David Elder, an occupational physician, assessed Mr Karaga on 22 January 2013.  Dr Elder commented that Mr Karaga’s presentation was inconsistent and that the information he gave was completely at odds with the surveillance video.  He noted that Mr Karaga demonstrated essentially a pain-free range of movement of the spine and the upper limbs.  He concluded that Mr Karaga had suffered a severe injury to the left chest wall and underlying lung but these had been successfully treated.  He found no abnormalities of the neck or shoulders and the only residual symptomatology resulting from the motor vehicle accident was chronic pain in the left chest. 

15. Dr Elder concluded that Mr Karaga has the capacity to work.

    Job Capacity Assessment

16. On 19 May 2014 an accredited exercise physiologist conducted a job capacity assessment (JCA) of Mr Karaga on 19 May 2014.  As a result of this assessment a 5 point impairment rating for spinal function was recommended and  the recommended rating for Mr Karaga’s psychiatric disorder was 5 impairment points. 

17. The Tribunal does not understand why Mr Karaga’s chronic pain syndrome, which was declared to be fully diagnosed, treated and stabilised and attracting a permanent rating was not rated, although the report states that a pain management program was the appropriate intervention.  Mr Karaga’s chronic obstructive airways disease and GORD were considered to be well managed and to cause a minimal or limited impact on his ability to function.  As such they did not attract an impairment rating. 

    LEGISLATION

18. The qualification requirements for DSP are contained in s 94 of the Social Security Act 1991 (the Act):

    94Qualification for disability support pension

    (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

19. The Social Security (Requirement and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (the Guide) to the Social Security law provides instructions regarding the application and the interpretation of the Impairment Tables. As of 2011 applicants are required to participate in a program of support (POS) as defined in Part 2 of the POS Determination, which provides that a person has actively participated in a program of support for at least 18 months in the three years immediately preceding the claim, if:

    (a)the person completed a program of support that was less than 18 months in duration;

    (b)the person’s program of support was terminated prior to claim because he or she was unable, solely because of his or her impairments, to improve his or her capacity to find, gain or remain in employment through continued participation;

    (c)the person was participating in a program of support at the date of claim and he or she was prevented, solely because of his or her impairments, from improving his or her capacity to find, gain or remain in employment through continued participation.

1. Section 94(2) of the Act addresses the question of inability to work at least 15 hours per week or undertake training activity within two years. Section 94(2) states:

   (2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

   ...

   (a)in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and

   (b)in all cases—either:

   (i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

   (ii if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

   SUBMISSIONS

2. Mr James contended that the Tribunal should give the greatest weight to the reports of Dr Brkic, the treating general practitioner, who has repeatedly certified Mr Karaga as having chronic pain syndrome which would affect Mr Karaga’s physical abilities as well as his memory and concentration to such an extent that he cannot work in any capacity.  Mr James also relied on the opinion of Dr Strauss who, as he pointed out, had not provided his report at the request of the TAC, and who found that Mr Karaga would never work again or, at best, would be restricted to light duties.

3. Ms Bramley contended that the medical evidence did not support a rating of 20 impairment points in Table 1 for Mr Karaga’s chronic pain syndrome.  She said that at the most any rating would be 5 impairment points, resulting in a total of 15 impairment points, given that the Respondent conceded 10 impairment points for Mr Karaga’s depression and anxiety.

   TRIBUNAL’S DELIBERATIONS

4. This Tribunal’s review of the decision of the SSAT is limited by clause 4(1) of Schedule 2 of the Social Security (Administration) Act 1999 (the Administration Act) to the determination of whether Mr Karaga qualified for DSP in the period from the date of lodgement of his claim, 25 March 2014 and the 13 weeks that followed, being until 24 June 2014.

5. There is no debate that Mr Karaga satisfies s 94(1)(a) of the Act in that he has documented physical and psychiatric impairments. He has been diagnosed with chronic pain syndrome, secondary to traumatic injury to his left hemithorax in September 1990. The psychiatrists Dr Entwisle and Dr Strauss have both made diagnoses of an adjustment disorder with depressed and anxious mood, the adjustment disorder being chronic and secondary to the physical injuries of the motor vehicle accident in 1990.

6. Mr Karaga also claimed that he suffers from chronic obstructive pulmonary disease and his claim is supported by his general practitioner Dr Brkic. Mr Karaga has been investigated for chronic obstructive pulmonary disease by two respiratory physicians, Dr Jonathan Burdon and Associate Professor Abe Rubinfeld. Mr Karaga smokes up to 20 cigarettes per day and has done so for decades.  Despite this and his chest injury, his broncho-spirometry is normal and thus does not support a diagnosis of chronic obstructive pulmonary disease.  His diffusing capacity as measured by carbon monoxide diffusion is slightly reduced and is consistent with his current smoking history. 

7. In more recent years Mr Karaga has complained of aches and pains in his lower limbs, shoulders, several other joints, his neck and in relation to lacerations he sustained in 1990.  These have not been investigated or diagnosed with any degree of certainty; although some of the aches and pains that he describes seem to have been incorporated into the diagnosis of chronic pain syndrome by some reporting doctors. 

8. Mr Karaga’s hearing defect is minor, his GORD is well controlled and does not contribute in any way to an incapacity for work, and he has been assessed by Mr Brownbill, a neurosurgeon, as having no neurological deficit or neurosurgical problems. Mr Drury’s extensive neuropsychological assessment was such that he regarded the overall profile of results to be invalid,  based on the fact that several measures of symptom validity were performed unsatisfactorily, indicating that Mr Karaga was not applying himself fully to the tasks.  In conclusion, Mr Drury stated that he was compelled to view all of [Mr Karaga’s] comments [regarding his wellbeing], in all respects, with a healthy degree of scepticism.

9. Mr Drury and Dr Elder viewed the video surveillance material and commented on Mr Karaga’s freedom of movement manipulating cables overhead for prolonged periods while balancing on the top rung of a stepladder, carrying heavy tools and lifting heavy air-conditioning units into place.  This led Mr Drury to conclude that Mr Karaga was not telling the truth with respect to his impairment and that he was presenting himself as more disabled than he really was.

10. The Tribunal is disturbed by the apparent lack of active treatment since Mr Karaga’s motor vehicle accident in 1990.  He did undergo a six week rehabilitation course provided by the TAC and according to the history given to Mr Drury,  the most detailed of all obtained, he had steroid injections, anaesthetic nerve blocks (presumably to the damaged intercostal nerves of the left hemithorax) and acupuncture before being provided with a TENS machine.  In addition, he was prescribed Dothiepin (Prothiaden) in 1991 and continues to take this daily. 

11. According to Mr Drury, Mr Karaga attended a pain management program at the Victorian Rehabilitation Centre in 1994 and another pain management program at St Vincent’s Hospital in the year 2000.  It would appear that since that time he has not attended any pain specialist for help with managing his syndrome and has relied on the use of Panadeine Forte and a TENS machine. 

12. Following his admission to Dandenong Hospital on 22 November 2014 in the mistaken belief that he had suffered acute fractures to his left ribs, he was started on Oxycodone which he still takes twice daily.  At the hearing Mr Karaga informed the Tribunal that he had been referred to a pain specialist whom he saw on 31 March 2015.  The specialist, Dr Clayton Thomas, started him on the anti-neuropathic medication Gabapentin. Mr Karaga stated he was taking two tablets, twice daily (this would appear to be a dose of 200 mgs twice daily, a dose that can be gradually increased).

13. Section 94(1)(b) of the Act sets out that the criterion for DSP is an impairment rating of 20 points or more under the Impairment Tables. The JCA on 19 May 2014 assigned an impairment rating of 5 points under Impairment Table 4, which deals with spinal function. The condition was considered to be fully diagnosed, treated and stabilised. Mr Karaga’s chronic adjustment disorder attracted a rating of 5 impairment points under Impairment Table 5, which deals with mental health. The assessor recommended that Mr Karaga attend a pain management program, receive psychological counselling and undergo a cognitive assessment. Mr Karaga was considered to have a base line work capacity of 15-22 hours per week, in less skilled work such as retail sales, supermarket jobs, warehouse work or as a factory hand in a light industry.

14. On 12 November 2014 the SSAT assessed Mr Karaga’s impairment rating for his chronic pain syndrome  at 10 points according to Table 1 of the Impairment Tables. His depression (chronic adjustment disorder) attracted an impairment point rating of 5, in accordance with Table 5.  A rating of 5 points is attracted by mild difficulties with:

    1self-care and independent living;

    2social/recreational activities and travel;

    3interpersonal relationships;

    4concentration and task completion;

    5behaviour, planning and decision-making; and

    6work/training capacity.

15. Table 1 of the Impairment Tables states that 10 points are attracted where the person:

    (a)experiences frequent symptoms ... and

    (i)is unable to walk ... far outside the home ... needs to drive or get other transport to local shops or community facilities; or

    (ii)has difficulty performing day to day household activities ... and

    (b)is able to:

    (i)use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and

    (ii)perform work-related tasks of a clerical, sedentary or stationary nature ...

16. Although Mr Karaga does not perform work-related tasks of a clerical, sedentary or stationary nature he has been assessed by numerous medical experts as retaining the capacity to do so.  As reported by more than one of the medical experts, the surveillance video provided by the TAC has shown him to be capable of quite heavy manual work.

17. At the hearing Ms Bramley, representing the Respondent, conceded that Mr Karaga’s chronic adjustment disorder with depressed and anxious mood attracted an impairment rating of 10 points.  Ms Bramley also agreed that Mr Karaga met the requirements for a 5 point impairment rating under Table 1, for his chronic pain syndrome. 

18. The Respondent, the JCA and  the SSAT  considered Mr Karaga’s chronic pain syndrome to be fully diagnosed, treated and stabilised in the period in question − that is between 25 March 2014 and 24 June 2014 inclusive. This Tribunal does not agree based on the medical evidence provided.  During that period the only treatment that Mr Karaga was receiving was two tablets of Panadeine Forte four times a day and the use of a TENS machine, in the morning and evening.  He had not had the benefit of attending a multi-disciplinary pain management clinic since 2000 and the nature of the pain management clinic he did attend is unknown.  Such clinics usually provide treatment from a psychologist, a physiotherapist, an occupational therapist and a pain specialist (who is generally either an anaesthetist or an occupational health physician with a particular clinical interest in pain). 

19. In the past 15 years there have been advances in treating chronic pain and various new medications have become available.  Mr Karaga has recently been seen by a pain medicine specialist, Dr Clayton Thomas, and has begun taking an anti-neuropathic anti-epileptic medication, Gabapentin.  His response to this treatment has not yet been assessed but he is due to see Dr Clayton Thomas again in the near future.

20. Mr Karaga does not attract the impairment rating of 20 points necessary to satisfy s 94(1)(b) of the Act. Moreover, clearly he does not attract 20 impairment points for any one condition, which would meet the requirements for a severe impairment and negate the requirement that he must have participated in an active program of support over a period of 18 months immediately before lodging his claim for DSP. As Mr Karaga was referred to a provider for the first time on 28 August 2014, he could not satisfy Part 2, section 5(1)(a) or 5(1)(b) of the POS Determination were he required to do so. Mr Karaga satisfies s 94(1)(a) of the Act but his conditions do not attract an impairment rating totalling 20 points or more, as his chronic pain syndrome had not, in this Tribunal’s findings, been fully treated and stabilised during the period under review.

21. The Tribunal affirms the decision under review but on a different basis to that determined by the SSAT. 

I certify that the preceding 61 (sixty -one) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member

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Associate

Dated 8 July 2015

Date of hearing	3 June 2015
Counsel for the Applicant	Mr D James
Solicitors for the Applicant	Hymans Solicitors
Advocate for the Respondent	Ms A Bramley
Solicitors for the Respondent	Department of Human Services