Kishore Coelho and Secretary, Department of Social Services
[2014] AATA 317
[2014] AATA 317
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 21 May 2014 Place Melbourne The Tribunal remits the decision to the Secretary under section 42D of the Administrative Appeals Tribunal Act 1975 for reconsideration after obtaining further medical evidence and/or opinion.
[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 – inadequate medical opinion –decision remitted for reconsideration
Legislation
Social Security Act 1991 section 94
Social Security (Tables for Assessment Work Related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Miss E A Shanahan, Member
21 May 2014
Mr Coelho lodged a claim for disability support pension (DSP) with Centrelink on 15 August 2013. Centrelink is the service agency for the Department of Social Services. The claim was accompanied by a treating doctor’s report from his general practitioner, Dr Feiber, attesting to the diagnosis of intermittent atrial fibrillation characterised by shortness of breath, dizzy spells, decreased energy and decreased exercise tolerance since January 2013. The condition was expected to improve significantly over the next two years.
Mr Coelho’s claim was rejected by a delegate of Centrelink on 30 September 2013. This decision was affirmed by an authorised review officer (ARO) on 30 October 2013. Mr Coelho then applied to the Social Security Appeals Tribunal (SSAT) on 1 November 2013 for review of the ARO’s decision. On 4 December 2013 the SSAT handed down its decision affirming the ARO’s decision. It found the condition to be fully diagnosed, treated and stabilised but attracting only a five impairment point rating, insufficient to satisfy s 94(1)(b) of the Social Security Act 1991 (the Act). Mr Coelho then applied to the Administrative Appeals Tribunal (AAT) on 13 December 2013 for review of the SSAT’s decision.
The hearing was conducted by telephone. Mr Coelho was unable to travel to the Tribunal as he was fearful that he might suffer an episode of paroxysmal atrial fibrillation (PAF). Mr Coelho was self-represented and the Secretary, Department of Social Services (the Secretary) was represented by Mr Tim Noonan, a Principal Government Lawyer of the Department of Human Services.
The Tribunal had before it the documents lodged by the respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) (T-documents and supplementary T‑documents) which have since been assigned the exhibit number R1. The Tribunal was also supplied with copies of certificates from Dr Feiber dated 28 March 2014, 5 March 2014 and 26 February 2014 which have been assigned the exhibit number A1. The Tribunal was also provided with a bundle of documents from Monash Medical Centre. The bundle included summaries of Mr Coelho’s attendance at the Centre’s Accident and Emergency Department and various investigations ordered as a result of those attendances. The bundle has been assigned the exhibit number A2.
BACKGROUND TO THE APPLICATION
Mr Coelho is aged 62. He was retrenched from his employment as a machine operator on 9 August 2013. The employer shed 30 per cent of its staff in that month due to economic downturn effect on the company (T6, p32). As a machine operator, Mr Coelho could sit or stand as he preferred and was only required to press a button to stop and start the machine. Mr Coelho told the Tribunal that despite the sedentary nature of his job, he took a great deal of sick leave between January and August 2013. His employer did not object to this amount of sick leave because there was little work.
Mr Coelho described his medical condition as episodic bouts of palpitations, associated with dizziness, shortness of breath, exhaustion, weakness and, more recently, a choking sensation in his throat. These episodes occur two to three times per week, last for up to 18 hours and are preceded by pain in the region of his left shoulder blade. The time of onset of the episodes is unpredictable and many started while he was asleep in the early hours of the morning and would therefore persist throughout the daylight hours of the following day. In January 2013 and again in June 2013 Mr Coelho experienced episodes wherein he lost consciousness; that is he suffered a syncopal attack and was taken to the Monash Medical Centre by ambulance.
When Mr Coelho has an attack he sits or (preferably) lies down. During such an attack he can only walk a few steps before resting. Between attacks he can walk 20 steps before resting. In the past 12 months he has walked to the shops to do shopping on one occasion. He drives to the library. When he does walk he rests every 50 metres. He now has help cleaning his house, doing his washing and performing his shopping. Mr Coelho eats takeaway food or frozen meals that he heats in a microwave oven.
It was said that Mr Coelho first sought medical treatment for these attacks when he attended Monash Medical Centre, Accident and Emergency Department on 14 January 2013 (Exhibit A2). However, the history given on that date was that he had several attacks before his attendance in January 2013 and had reported these to his general practitioner, who had assured him that all was well. The Tribunal notes that according to the Monash Medical Centre records, Mr Coelho had been seen in the Accident and Emergency Department, six years earlier with the complaint of episodic dizziness. On 14 January 2013 a provisional diagnosis of atrial fibrillation and/or flutter was made by the Accident and Emergency staff. The diagnosis was provisional because, by the time an electrocardiograph (ECG) was performed Mr Coelho had reverted to normal sinus rhythm.
On 11 June 2013 Mr Coelho suffered another syncopal attack associated with symptoms of palpitation, shortness of breath etc. Mr Coehlo attended the Monash Medical Centre Accident and Emergency Department again. Mr Coelho was noted to be in atrial fibrillation with a variable rate between 85 to 120 beats per minute. His blood pressure was recorded at 97 millimetres of mercury systolic, his normal systolic level being 127 or more. Again, Mr Coelho reverted to sinus rhythm spontaneously but as his ECG showed S-T changes he was admitted to hospital under the care of a cardiologist. The record of his attendance on 11 June 2013 refers to an earlier attendance on 2 April 2013 for the same symptoms, although no records from the April attendance have been made available to the Tribunal.
Investigations conducted between April and mid-June 2013 had shown normal haematology, serum electrolytes urea and creatinine and troponin levels (that is, no evidence of myocardial ischaemia). A chest x-ray performed on 11 June 2013 was normal including the estimation of Mr Coelho’s heart size. An ambulatory ECG performed on 10 May 2013 showed sinus rhythm with a varying rate between 47 and 135 beats per minute with rare atrial premature beats.
On 11 May 2013 a transthoracic echocardiogram (TTE or Echo) had been performed to exclude structural heart disease such as valve disease, cardiomyopathy, ventricular hypotrophy or sub‑aortic stenosis. The Echo was normal except for mild bilateral atrial enlargement.
After the January episode Mr Coelho was commenced on the beta blocker drug Sotalol 80 milligrams orally twice daily. Some months later Aspirin 100 milligrams daily was added to his regime because of the risk of intracardiac thrombosis during these episodic attacks which could result in a cerebral stroke. Mr Coelho has attended the cardiology outpatients clinic at six monthly intervals and was last seen in January 2014. He is due for review in July of this year.
Initially, it was Mr Coelho’s understanding that he was to be offered a surgical procedure for his PAF (T4, p18). The Tribunal interprets this as meaning he was being considered for electrophysiological mapping via a cardiac catheter and then radio frequency ablation of any aberrant electrical foci; these frequently being sited around the pulmonary vein orifices in the left atrium.
Mr Coelho told the SSAT and this Tribunal that in October 2013 his GP, Dr Feiber, spoke with the cardiologist reviewing Mr Coelho at Monash Medical Centre and was told that he was not being considered for any surgical procedure and his treatment would continue with the Sotalol and regular review in the cardiology outpatient clinic.
Mr Coelho sees Dr Betty Ho. from the Tribunal’s own knowledge Dr Ho is a general cardiologist. He has not seen an electrophysiologist and thus it is unclear why he is no longer being considered for ablation therapy. Mr Coelho says he has requested reports and written opinions from the cardiologists but his requests have been refused and he cannot afford to see a cardiologist privately.
Mr Coelho gave evidence that his episodes of PAF now occur three times a week and last 18 hours on average. They commence at any hour and are dealt with by rest and as advised by the cardiologists the taking of an extra Sotalol tablet which to date has been ineffective.
Mr Coelho actually attributed his current symptoms to Sotalol. Certainly MIMS and various medical text books list the side effects of this drug as almost being identical to those of PAF. The manufacturer also warns that:
The use of this drug is contra indicated with persons with Broncho spasm such as asthma and allergic disorders as it makes both conditions worse.
PAF is characterised by rapid irregular heart rate resulting in a reduction in cardiac output which may result in hypotension, shortness of breath and dizziness. Where the hypotension is severe syncope may occur.
From Mr Coelho’s description of his symptoms during an episode of PAF, he could not work in a role such as a machine operator, particularly with the risk of a syncopal attack. He states that between bouts he remains tired, short of breath and weak.
Dr Feiber has provided three certificates of incapacity in the form of letters. These are of little assistance, as Dr Feiber has never seen Mr Coelho during one of his episodes of PAF and has not forwarded to the Tribunal any letters he may have received from the Monash Medical Centre’s Cardiology Outpatients clinic.
EVIDENCE BEFORE THE TRIBUNAL
Mr Coelho’s evidence has been summarised under BACKGROUND TO THE APPLICATION. At the time of the telephone hearing he was experiencing an episode of PAF which had commenced at 6.00pm the day before and which he anticipated would resolve by midday on the day of the hearing. The relevant documentary evidence is also summarised under the heading of BACKGROUND TO THE APPLICATION.
Since the hearing Mr Coelho has forwarded to the Tribunal a more recent ECG and a transthoracic echocardiogram. These were performed privately. The ECG of 24 April 2014 shows atrial fibrillation with a rate of 84 beats per minute. A transthoracic echocardiogram performed on 29 April 2014 shows that Mr Coelho was then in sinus rhythm and the structural findings were the same as the Echo performed at Monash Medical Centre on 11 May 2013.
Mr Coelho underwent a job capacity assessment (JCA) on 28 August 2013 (T7). The assessor was an occupational therapist and has listed Mr Coelho’s medical condition as ischaemic heart disease with intermittent atrial fibrillation. The condition was determined to be permanent but not fully treated and stabilised given the possibility of further interventional therapy. Therefore, no impairment rating was attracted. The assessor considered Mr Coelho capable of working 15 to 20 hours per week at the time of the assessment and 23 to 29 hours within two years.
THE SSAT DECISION
The SSAT determined that Mr Coelho’s condition was permanent, fully diagnosed, treated and stabilised and attracted an impairment rating of five points under Table 1 of the (Tables for Assessment Work Related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables). This rating is attracted by evidence of mild functional impairment. Mild functional impairment is said to be present when the person experiences occasional symptoms, with occasional difficulty on walking to local facilities without stopping to rest or in performing physically active tasks or heavy household activities, for example mowing the lawn and the person is able to perform most work related tasks other than heavy manual labour.
RELEVANT LEGISLATION
The relevant legislation is contained in s 94 of the Social Security Act 1991.
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; ...
(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa)in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B)—the person has actively participated in a program of support within the meaning of subsection (3C); and
(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.
Severe impairment is defined as:
(3B)A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.
Example 1: A person’s impairment is of 30 points under the Impairment Tables, made up of 20 points under one Impairment Table and 10 points under another Impairment Table. The person has a severe impairment.
Example 2: A person’s impairment is of 40 points under the Impairment Tables, made up of 20 points under one Impairment Table and 20 points under another Impairment Table. The person has a severe impairment.
Example 3: A person’s impairment is of 20 points under the Impairment Tables, made up of 10 points each under 2 separate Impairment Tables. The person does not have a severe impairment.
[Original emphasis]
and where there is not a severe impairment the person is required to participate in a program of support as defined below:
(3C)A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.
In addition, the Introduction to Table 1 of the Social Security the Impairment Tables states that:
·Self-report of symptoms alone is insufficient.
·There must be corroborating evidence of the person’s impairment.
SUBMISSIONS
Mr Coelho
Mr Coelho contends that his PAF is permanent, fully diagnosed, treated and stabilised and that he meets the Table 1 (of the Impairment Tables) criteria of severe functional impact, which attracts an impairment rating of 20 points.
Mr Coelho also drew the Tribunal’s attention to paragraph 11(4) of the Rules for Applying the Impairment Tables, which provides as follows:
(4)When assessing impairments caused by conditions that have stabilised as episodic or fluctuating a rating must be assigned, which reflects the overall functional impact of those impairments, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate
Mr Coelho submits that the SSAT did not take into account the severity, duration and frequency of his episodes of PAF.
Mr Coelho further submitted that given he meets the criteria for a severe functional incapacity he is not required to undertake a program of support.
The Secretary
Mr Noonan submitted that the maximum rating that could be attracted by Mr Coelho’s symptoms was 10 points. He pointed out that all of the certificates provided by Dr Feiber in support of Mr Coelho’s application referred only to any incapacity that might exist during an episode of PAF and did not address Mr Coelho’s capacity for work between the episodes of atrial fibrillation. Given the Secretary’s concession that the condition suffered by Mr Coelho attracted only 10 points, he could not satisfy s 94(1)(b) of the Act.
Mr Noonan contended that at the time of the primary decision of 30 September 2013 no impairment rating points were attracted as the condition was not fully treated, Mr Coelho having indicated in his claim form that he was to undergo surgical intervention for his PAF.
TRIBUNAL’S DELIBERATIONS
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.
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.
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.
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).
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.
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.
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.
I certify that the preceding 38 (thirty‑eight) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member [sgd]........................................................................
Administrative Assistant
Dated 21 May 2014
Date of hearing 10 April 2014 Applicant By Telephone Solicitors for the Respondent Tim Noonan, DHS Legal Services Division
1
0
0