Kishore Coelho and Secretary, Department of Social Services
[2014] AATA 640
•4 September 2014
[2014] AATA 640
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/6633
Re
Kishore Coelho
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Miss E A Shanahan, Member
Date 4 September 2014 Place Melbourne The Tribunal affirms the decision under review.
[sgd]........................................................................
Miss E A Shanahan, Member
SOCIAL SECURITY – pensions and allowances – disability support pension – medical condition of paroxysmal atrial fibrillation – permanency – frequency and severity of symptoms – treatment response – incapacity for work – impairment rating – remittance for further medical opinion and reconsideration – decision affirmed.
Legislation
Social Security Act 1991 s 94
Social Security (Tables for Assessment of Work Related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Miss E A Shanahan, Member
4 September 2014
The Tribunal heard this matter on 10 April 2014 and remitted it to the Secretary, Department of Social Services, the Respondent, for reconsideration of the decision after further assessments and expert opinion had been obtained. The Tribunal’s decision was published on 21 May 2014 ([2014] AATA 317). The Tribunal’s deliberations stated:
32.By virtue of my qualifications and experience as a cardiothoracic surgeon, I as the Tribunal Member am well acquainted with the diagnosis and treatment of PAF and its clinical impact, when uncontrolled, on the individual. However, it is not my role to use such knowledge other than as an aid to the interpretation of medical evidence and the assessment of the adequacy of such evidence before the Tribunal.
33.Mr Coelho’s application is not accompanied by any appropriate medical opinion. This is despite the presence of several cardiac electrophysiologists on the cardiology staff of the Monash Medical Centre. The medical reports are confined to certificates by his general practitioner with very limited comment as to his capacity for work; and reports from the Accident and Emergency Department of Monash Medical Centre, which confirm Mr Coelho’s symptoms and signs, the diagnosis of (PAF) and provide the results of tests that exclude the vast majority of causes of PAF other than aberrant foci of electrophysiological activity.
34.No opinion as to Mr Coelho’s capacity for work has been provided by an appropriately qualified specialist. The job capacity assessment is of no assistance as the assessor made the diagnosis of ischaemic heart disease for which there is no clinical evidence.
35.Based on the medical evidence available at the time Mr Coelho lodged his claim for DSP (15 August 2013) his condition of PAF was probably permanent and fully diagnosed but not fully treated, since according to Mr Coelho he was being considered for heart surgery or more likely radio frequency ablation. The records say that in October 2013 Dr Feiber discussed Mr Coelho’s progress with a cardiologist at Monash Medical Centre and was told that surgery was not being considered and that medication and six monthly review was the proposed management. If this is correct, Mr Coelho’s PAF would have been fully diagnosed, treated and stabilised within the period of review (10 August 2013 – 14 November 2013), being stabilised at three, 18-hour episodes per week. On Mr Coelho’s evidence, he is unable to undertake any physical activities during these 18 hour periods and would remain at risk, particular if not lying down, of a syncopal attack (that is a loss of consciousness, as documented in January and June 2013).
36.The Introduction to the Impairment Tables clearly state that corroborating evidence is required and that a decision cannot be reached on self-reported symptoms. The corroborating evidence before the Tribunal is limited to two Accident and Emergency Department reports which do not provide any opinions, merely the diagnosis and the results of investigation.
37.The Tribunal remits the matter to the Secretary under section 42D of the AAT Act and directs that reconsideration of the decision be undertaken after the opinion of a cardiologist is obtained, either by the respondent or by Mr Coelho. The cardiologist should preferably be an electrophysiologist at Monash Medical Centre.
38.In accordance with s 42D(5)(a) of the AAT Act the Tribunal directs that the Secretary reconsider its decision and advise the Tribunal and Mr Coelho of the outcome within 60 days. The Tribunal may extend the specified period, upon application by the Secretary, in accordance with s 42D(6) of the AAT Act.
The Respondent and Applicant have sought further medical opinion.
Medical Reports provided by the Applicant
Dr Nitesh Nerlekar, Monash Health Cardiology Registrar, report dated 31 January 2014
This report (which was sent to Dr J Feiber, the Applicant’s treating general practitioner) should have been provided to the Tribunal and the respondent before or at the hearing on 10 April 2014. Regrettably, it was only provided after remittance of the matter for reconsideration. The report was generated on the day Mr Coelho was reviewed in the Cardiology Outpatient Clinic. Despite treatment with the antiarrhythmic medication of sotalol at a dose of 120 mgm twice daily, Mr Coelho continued to have symptoms of paroxysmal atrial fibrillation (PAF), resulting in continuing disability. As a result of his failure to respond to medical treatment, consideration was given to changing his medication and the performance of pulmonary vein isolation and radiofrequency ablation of ectopic sites of electrical activity.
The pros and cons of these treatments were discussed with Mr Coelho. He was reluctant to undergo any sort of invasive or radiological investigation. He stated that his symptoms were not causing any detriment to his lifestyle; and he felt able to tolerate them although he continued to have episodes two to three times a week lasting 16 to 18 hours despite the use of sotalol.
Dr John Voukelatos
Dr Voukelatos is a consultant cardiologist. He saw Mr Coelho on 2 May 2014 at the request of Dr Lahanis and confirmed the diagnosis of PAF. Dr Voukelatos increased Mr Coelho’s sotalol dose to 120 mgm in the morning and 80 mgm at night. Dr Voukelatos also provided a referral to a cardiac electrophysiologist. Mr Coelho declined to use it. Dr Voukelatos certified Mr Coelho’s PAF as likely to persist for 24 months or more.
Monash Medical Centre Emergency Department summary, dated 1 June 2014
Mr Coelho presented to the Emergency Department on 1 June 2014 having suffered palpitations due to atrial fibrillation for some 41 hours. He was admitted to the short-stay unit for overnight monitoring. By 9:12 a.m. he had reverted spontaneously to sinus rhythm and was discharged. He was advised to see his cardiologist.
Mr Coelho subsequently arranged to see a cardiac electrophysiologist in order to discuss radiofrequency pulmonary vein ectopic site ablation. In his email to the Tribunal dated 3 June 2014, he stated that the first he had heard of this particular procedure was when he saw Dr Voukelatos on 2 May 2014. This is incorrect. He had been advised of this option in January 2014 by the Monash Heart Registrar, Dr Nerlekar. In addition, the Tribunal had mentioned this procedure during the hearing on 10 April 2014. In his email to the Tribunal dated 30 May 2014, Mr Coelho provided data relating to results achieved generally with pulmonary vein isolation, as well as difficulties and complications with the procedure. The source of this data is not revealed. It is written in simple medical terminology and possibly comes from the internet.
Report of Dr C Lahanis, dated 7 July 2014
Dr Lahanis confirmed that the electrophysiological procedure suggested to treat Mr Coelho’s PAF had only a 70 per cent chance of success and carried a risk of long term and acute complications.
Report of Dr Ben Pang, Cardiac Rhythm Management Fellow, Monash Health, dated 16 June 2014
Dr Pang saw Mr Coelho in the Monash Heart Complex Atrial Fibrillation Assessment Clinic. Dr Pang confirmed the history of two episodes of PAF per week with associated shortness of breath and pre-syncopal symptoms requiring Mr Coelho to lie down during these episodes. The episodes last several hours. The results of the physical examination were normal, except for the presence of finger clubbing.
Dr Pang states that he discussed in detail the causes and treatment of atrial fibrillation. Given that Mr Coelho’s dose of sotalol had very recently been increased to 160 mgm twice daily, Dr Pang decided to review him in a few months’ time to assess his response to the increased dosage. Dr Pang also discussed, at length, the possible atrial fibrillation ablation procedure. Dr Pang noted that Mr Coelho was seeing Dr Voukelatos and had been referred to Dr Joe Morton at the Royal Melbourne Hospital for consideration of an atrial fibrillation ablation procedure. Dr Pang advised Mr Coelho that it would be preferable if he chose to see only one cardiologist for his ongoing care.
Dr Joseph Feiber, Medical Certificate dated 8 July 2014
Dr Feiber, Mr Coelho’s treating GP, provided a medical certificate in response to questions posed by the Respondent, certifying that the PAF was [d]iagnosed fully, stable and permanent and managed. He stated that Mr Coelho attracted 20 points under Table 1 of the Social Security (Tables for Assessment of Work Related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables). Dr Feiber also confirmed the dates of diagnosis and the current treatment was of sotalol 80 mgm taken twice daily.
The reports of Dr Sarah Gutman, Cardiology Registrar, Monash Heart at Monash Health
Dr Gutman provided two reports. The first was dated July 2014 and received on 28 July 2014, and the second was dated August 2014. In both reports she states she first saw Mr Coelho on 16 July 2014. She notes that between 15 August 2013 and 14 November 2013 Mr Coelho had a diagnosis of paroxysmal atrial fibrillation for which he was taking aspirin 100 mgm daily and sotalol 80 mgm twice daily, which resulted in his condition being well controlled. In the second report the phrase his condition was well controlled was replaced with his condition has stabilised. In both reports Dr Gutman states: We do not believe he is a candidate for pulmonary vein isolation and catheter ablation neither then nor now. Dr Gutman states that she had discussed Mr Coelho with Dr Emily Kotschet, a consultant cardiac electrophysiologist, and quoted a success rate following ablation of 30-70 per cent and a risk rate of 2-5 per cent.
Email from Mr Coelho to the Tribunal dated 5 August 2014
In an email to the Tribunal on 5 August 2014, Mr Coelho objected to the opinion provided to the Respondent by Dr Sandra Armstrong of the Health Professional Advisory Unit, as she was not, in his opinion, an expert in the relevant field. He submitted that his general practitioner, Dr Feiber, was more experienced, as was Dr Voukelatos.
The Respondent’s further submissions in relation to the medical reports provided by Mr Coelho
Following the provision of further medical reports by Mr Coelho, the Respondent sought the opinion of Dr Armstrong of the Health Professional Advisory Unit.
On 7 August 2014 Dr Armstrong reviewed the data and the reports of Dr Feiber (dated 8 July 2014) and Dr Gutman (dated 16 July 2014). Dr Armstrong also telephoned Dr Feiber to discuss Mr Coelho’s progress and diagnosis. This was done as the reports of Dr Feiber and Dr Gutman were inconsistent. Dr Feiber was uncertain how often Mr Coelho had episodes of PAF or the duration of these bouts. Dr Feiber told Dr Armstrong that Mr Coelho’s condition was managed by the cardiologist. However, he had rated the condition as attracting 20 points under Table 1 of the Impairment Tables, even though Dr Feiber considered that between the attacks of PAF Mr Coelho had no health issues.
Dr Gutman’s report noted that Mr Coelho was not a candidate for pulmonary vein isolation and radiofrequency ablation and that his paroxysmal atrial fibrillation was well controlled with current medication. Based on these reports, Dr Armstrong concluded that an appropriate disability rating on table 1 would be 10 points at most. This was supported in Dr Armstrong’s opinion by Dr Nerlekar’s report dated 31 January 2014, which stated that Mr Coelho’s symptoms are not causing any detriment to his lifestyle.
Dr Armstrong provided a further report dated 15 August 2014, after receiving Dr Pang’s report.
Once more, Dr Armstrong noted the inconsistencies between the reports; this time between Dr Pang and Dr Gutman, despite the fact that the reports had been provided only one month apart. Dr Pang’s report indicated that Mr Coelho’s PAF was not well controlled and that his dose of sotalol had been doubled a few days prior to his attendance on Dr Pang. Based on Dr Pang’s report, Dr Armstrong concluded that Mr Coelho’s PAF was fully diagnosed but not fully treated or stabilised during the period under review and at the current time. While Dr Pang had indicated that Mr Coelho was disabled when he had an episode of PAF, he provided no comment as to for the level of impairment between such episodes.
RECONSIDERATION OF THE SECRETARY
By letter dated 12 August 2014, a Centrelink authorised review officer (ARO), Ms Cathy Toze, advised Mr Coelho that, following reconsideration of the additional information as outlined above, the Secretary had determined that he suffered from PAF which was accepted as being permanent as it was fully diagnosed, treated and stabilised. The ARO assigned an impairment rating of 10 points. This assessment was based primarily on the report of Dr Gutman of July 2014 which stated that your condition is well controlled with your current medication.
LEGISLATION AND SUBMISSIONS
The applicable legislation and original submissions by the parties have already been considered in the decision of 21 May 2014.
THE TRIBUNAL’S DELIBERATIONS FOLLOWING REVIEW BY THE RESPONDENT OF MR COELHO’S CLAIM FOR DISABILITY SUPPORT PENSION
The Tribunal has taken into consideration all of the reports provided between January 2014 and August 2014. There are major inconsistencies between these reports. The only consultant cardiologist’s opinion that has been obtained, or at least provided to the Tribunal, is that of Dr John Voukelatos. Dr Voukelatos has now arranged for Mr Coelho to see a cardiac electrophysiologist for further advice and investigation. Dr Voukelatos is not a cardiac electrophysiologist.
The reports of Dr Nerlekar (dated 31 January 2014) and Dr Pang (dated 16 June 2014) confirm that Mr Coelho’s atrial fibrillation is not fully treated and stabilised. Mr Coelho confirmed this in a telephone directions hearing on 26 August 2014, at which time he stated that he was still having episodes of PAF lasting 18 hours, two to three times per week. While Dr Gutman and Dr Feiber stated his condition is fully treated and stabilised, this is clearly not the case, given Mr Coelho’s own statements and several of the reports received and referred to above.
In January 2014 Mr Coelho was offered further investigation with a view to radiofrequency ablation of ectopic foci of electrical activity in order to control his PAF. He was acquainted with all of the risks of this procedure and the likelihood of success. He refused such treatment. More recent changes to his dose of sotalol have resulted in severe palpitations and hypertension. These may represent the side effects of sotalol known as pro-arrhythmic effects (Tribunal’s own knowledge). This may require reducing his dosage of sotalol to levels which have not previously controlled his symptoms.
The evidence provided to the Tribunal confirms the diagnosis of paroxysmal atrial fibrillation and that the condition is permanent. But the reports from August 2013 to the current date indicate that the condition is not fully treated and stabilised. Therefore, an impairment rating under the Impairment Tables cannot be made and Mr Coelho does not qualify for the disability support pension under 94(1)(b).
I certify that the preceding 24 (twenty ‑four) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member. [sgd]........................................................................
Associate
Dated 4 September 2014
Applicant In person Advocate for the Respondent Tim Noonan, Department of Human Services
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