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

[2016] AATA 322

Kokinovic and Secretary, Department of Social Services (Social services second review) [2016] AATA 322 (20 May 2016)

Division	GENERAL DIVISION
File Number	2015/4675
Re	Milan Kokinovic
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member J F Toohey
Date	20 May 2016
Place	Sydney

The Tribunal affirms the decision under review.

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

Senior Member J F Toohey

CATCHWORDS

SOCIAL SECURITY – disability support pension – left elbow injury – psychological conditions – chronic tinnitus – chronic pain syndrome – subsequent ankle injury – whether conditions fully diagnosed treated and stabilised during claim period – impairment ratings – decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 37

Social Security Act 1991, s 94

Social Security (Administration) Act 1999, s42 and Sch 2

SECONDARY MATERIALS

Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011

Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Senior Member J F Toohey

20 May 2016

BACKGROUND

1. Mr Milan Kokinovic was employed as a welder boilermaker until 2008 when he suffered a serious injury at work.  On 19 November 2014, he applied for a disability support pension (DSP).  Centrelink decided he did not qualify for the DSP and, on 29 July 2015, the Child Support and Social Services Division of this tribunal affirmed that decision.  

2. The legislation concerning qualification for DSP is in the Social Security Act 1991 (the Act).  Section 94 provides that, to qualify for payment, a person must have:

   (i)a physical, intellectual or psychiatric impairment, or impairments, which rate 20 or more points according to the Impairment Tables in the Act; and

   (ii)a continuing inability to work as defined in the Act.

3. Mr Kokinovic had to satisfy these criteria on 19 November 2014, when he applied for the DSP, or within the following 13 weeks, that is, by 17 February 2015: s 42 and Sch 2 of the Social Security (Administration) Act 1999.  I will call this the claim period.

   THE IMPAIRMENT TABLES

4. The Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) includes rules for assessing the degree of functional impairment caused by a condition, and for assigning impairment ratings.  According to its severity, a condition may be rated between nil and 30 points.

5. An impairment can only be given a rating on the Impairment Tables if the condition causing it is a fully documented, diagnosed condition which has been investigated, treated and stabilised: subsection 6(4).  The condition must be considered permanent, meaning that, in light of available evidence, it will more likely than not persist for more than two years. 

6. For the purposes of the Impairment Tables, fully stabilised means it is unlikely that there will be any significant functional improvement in a condition, with or without reasonable treatment, within the next two years: subsection 6(6).

7. In assessing whether a condition is fully diagnosed, treated and stabilised, a decision- maker must consider what treatment or rehabilitation has occurred, whether treatment is still continuing or is planned in the near future, and whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next two years: subsection 6(5).

8. The Impairment Tables instruct that, where two or more conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table: subsection 10(5).  By way of example, they state that the presence of both heart disease and chronic lung disease may each result in breathing difficulties; in this case the single impairment rating should be assigned using Table 1.

   INFORMATION BEFORE THE TRIBUNAL

9. In support of his claim for DSP, Mr Kokinovic provided reports from Dr Mark Marinkovich and Dr Marija Maric-Todorovic.  Dr Marinkovich was Mr Kokinovic’s general practitioner up until November 2012 when he started seeing Dr Maric-Todorovic.

10. The Secretary has provided documents in accordance with s 37 of the Administrative Appeals Tribunal Act 1975.  They include additional medical reports, medical certificates, and a report of a job capacity assessment on 5 January 2015.

11. Mr Kokinovic gave evidence before the Tribunal through a Serbian interpreter.

    MR KOKINOVIC’S MEDICAL CONDITIONS

12. Dr Marinkovich reported that Mr Kokinovic suffered from a left elbow injury which caused chronic pain and restriction of movement and psychological conditions, including; post-traumatic stress disorder, severely elevated anxiety and depression, treatment for which was ongoing.  In his report to Centrelink dated 3 November 2014, he recorded that Mr Kokinovic also suffered from back pain, deafness, chronic pain syndrome, gastrointestinal symptomatology, left leg pain, hypertension and osteoarthritis, all of which he described as conditions “that are generally well managed and that cause minimal or limited impact on the ability to function”.

13. Dr Maric-Todorovic’s report in support of Mr Kokinovic’s application for DSP stated that the “condition with most impact” was “chronic tinnitus – left ear” and “right calf claudication – right superficial femoral artery occlusion”.  In that part of the report that asked the doctor to identify any other conditions that are “generally well managed and cause minimal or limited impact”, she referred to page 3 of her report where she listed “left elbow injury, chronic depressive disorder adjustment disorder, peripheral vascular disease, chronic smoker, hyperlipidaemia, chronic pain syndrome”.

14. Mr Kokinovic gave evidence that his hyperlipidaemia is controlled with medication.  I am satisfied that this condition was fully diagnosed, treated and stabilised during the claim period and that it had minimal, if any, impact on his functioning. I have therefore not considered it further. 

15. Mr Kokinovic also described feeling nauseous from his medication and having aches and pains throughout his body.  Assuming these conditions were fully diagnosed, treated and stabilised during the claim period, and taking into account the reports from his general practitioners, I am satisfied these had minimal, if any, impact on his functioning.  I have therefore not considered them further.

16. Mr Kokinovic clarified that the reference to chronic pain syndrome in the doctors’ reports is to continuing pain from the workplace injury to his left elbow.  The Impairment Tables instruct that, where chronic pain has been diagnosed, any resulting impairment should be assessed using the table relevant to the area of function affected: subsection 6(9)(b).  I have therefore not considered Mr Kokinovic’s chronic pain separately but, rather, as part of his left elbow condition.

    Left elbow injury

17. Mr Kokinovic has undergone two lots of surgery for the injury to his left elbow.  Dr Marinkovich reported that it causes him chronic pain and restriction of movement; current treatment was “symptomatic and conservative”.  The Secretary accepts, and I am satisfied, that this condition was fully diagnosed, treated and stabilised during the claim period.

18. Table 2 (Upper limb function) provides there is a mild functional impact on activities using hands or arms if:

    1)The person can manage most daily activities requiring the use of the hands and arms, but has some difficulty with most of the following:

    (a)picking up heavier objects (e.g. a 2 litre carton of liquid or carrying a  full  shopping bag);

    (b)       handling very small objects (e.g. coins);

    (c)       doing up buttons;

    (d)       reaching up or out to pick up objects.

19. Table 2 provides there is a moderate functional impact on activities using hands or arms if a person has difficulty with most of the following:

    (a)       picking up a 1 litre carton full of liquid;

    (b) picking up a light but bulky object requiring the use of 2 hands together  (e.g. a cardboard box);

    (c)       holding and using a pen or pencil;

    (d)       doing up buttons or tying shoelaces;

    (e)       using a standard computer keyboard;

    (f)        unscrewing a lid on a soft-drink bottle.

20. The report of a job capacity assessment undertaken on 22 December 2014 shows that Mr Kokinovic told the assessor he could manage most daily activities requiring the use of his hands and arms but he had some difficulty with picking up heavier objects, such as a two litre carton of liquid; doing up buttons; and reaching up or out to pick up objects. 

21. The decision of the first tribunal shows that Mr Kokinovic said he could carry light groceries and do up buttons and shoelaces; he had a problem reaching out to pick up things; he could hang a small load of washing but could not hang a wet towel as it was too heavy, and he had trouble extending his arms upward.

22. Giving evidence before this tribunal, Mr Kokinovic confirmed that, of the activities listed under moderate functional impact, he had some difficulty picking up a light but bulky object, doing up buttons or tying shoelaces, and unscrewing a lid on a soft drink bottle.  It cannot be said that he has difficulty with most of the activities listed.

23. The Secretary contends, and I am satisfied, that this condition did not warrant a rating of 10 points, and a rating of five points for mild functional impact is appropriate.

    Chronic tinnitus

24. According to Dr Maric-Todorovic, this condition had its onset in 2013.  Dr Kenneth Howison, Ear, Nose and Throat surgeon, saw Mr Kokinovic for assessment on 5 June 2014.  He reported that Mr Kokinovic had a “binaural high tone sensori-neural noise induced hearing loss of 16.3 per cent”.  Dr Howison reported that this represented a whole person impairment of 8 per cent for the purposes of his workers compensation claim.

25. The Secretary accepts, and I am satisfied, that this condition was fully diagnosed, treated and stabilised during the claim period.

26. Table 11 (Hearing and other Functions of the Ear) provides there is mild functional impact if:

    (1)       The person:

    (a) has some difficulty hearing a conversation at an average volume in  a room with background noise (e.g. other people talking quietly in the background); and

    (b)       may use a hearing aid, cochlear implant or other device; and

    (c) has difficulty hearing conversations when using a standard  telephone, particularly in a room with background noise; or

    (2)The person has occasional difficulty with balance (e.g. occasional  dizziness) or ringing in the ears which occasionally interferes with communication ability or routine activities due to a medically diagnosed disorder of the inner ear (e.g. Meniere’s disease, or tinnitus).

27. Table 11 provides there is a moderate functional impact on activities involving hearing function or other functions of the ear even when using a hearing aid, cochlear implant or other assistive listening device; or sign language interpreting is required, as follows. 

    (1)       The person:

    (a) has difficulty hearing a conversation at average volume in a room  with no background noise; and

    (b) the person has to use a telephone with a T switch and has  occasional difficulty with some words ; and

    (c) is partially reliant on lip-reading or a recognised sign language (e.g. Auslan), that is, the person needs to lip-read or watch a sign language interpreter in some situations where background noise is present or needs to have parts of conversations clarified or repeated using lip-reading or recognised sign language; or

    (2) The person has more frequent difficulty with balance (e.g. has to sit down or hold on to a solid object) or ringing in the ears which interferes with communication ability or routine activities, due to a medically diagnosed disorder of the inner ear (e.g. Meniere’s disease or tinnitus).

28. Mr Kokinovic reported to Dr Howison that he had been aware of hearing loss for the previous four years and was now aware of the constant tinnitus in both ears which did not disturb him previously but which now affected his sleep and concentration; he had trouble understanding speech if there was background noise and this caused him to feel socially isolated and lose confidence; he also had difficulty with the television and the telephone.

29. Mr Kokinovic gave evidence that he has some difficulty hearing the television because of the “non-stop buzzing” in his ears; he watches satellite television in Serbian because it is easier to watch speakers’ lips.

30. The Secretary says this condition has mild functional impact and should rate five points.  I am satisfied that it rates at least five points.  Given that he experiences continual tinnitus, it may approach 10 points. 

31. The Impairment Tables instruct that, if an impairment is considered as falling between two ratings, the lower must be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied: subsection 11(1)(c). On this basis, I find that Mr Kokinovic’s hearing impairment rated five points.

    Post-traumatic stress disorder; severely elevated anxiety; depression

32. In a report dated 7 October 2014, Dr Ivan Lakicevic, psychiatrist, stated that Mr Kokinovic showed symptoms of “moderate to severe non-melancholic, reactive depression associated with elements of Panic Disorder” which started after his work-related accident in 2009. 

33. Dr Lakicevic stated he was “contemplating” a change and increase in Mr Kokinovic’s medication. He detailed the medications he was contemplating and said that, if these strategies were ineffective, Mr Kokinovic could be withdrawn from all medication and trialled on others and, if none of those strategies was effective, he would recommend considering ECT treatment.  He suggested it would be useful to seek the opinion of two other doctors in regard to “specific ECT techniques”.  He thought there was “significant evidence based chance that proposed treatment will change or alter the outcome” for Mr Kokinovic.

34. On 12 November 2014, clinical psychologist, Dr Zoran Protulipac, provided a detailed report for the purposes of evaluating Mr Kokinovic’s fitness for work.   He outlined Mr Kokinovic’s long history of psychological problems and stated that, despite commencing psychiatric treatment in 2010, treatment had failed to relieve him of his symptoms.  Dr Protulipac did not think Mr Kokinovic’s conditions would improve with time or treatment, and he was “clearly unable to work”.

35. In a second report, dated 6 March 2015, Dr Protulipac provided an “update” for Centrelink.  He stated that, on 21 December 2014, Mr Kokinovic had been hospitalised at the mental health unit of Liverpool hospital for severe anxiety, and placed under the care of Dr Bakkaravally, psychiatrist.  He was hospitalised again on 5 January 2015 and placed under the care of Dr Vulovic, psychiatrist.  On 21 February 2015, he started seeing Dr Blagoje Kuljic and was still under his care at the date of the report.  Dr Protulipac thought his conditions had “significantly deteriorated” since his earlier report.

36. Mr Kokinovic is described in various reports as suffering from post-traumatic stress disorder, major depressive disorder, generalised anxiety disorder, adjustment disorder, and reactive depression associated with elements of panic disorder.  Despite these variations, the Secretary accepts, and I am satisfied, that his condition could properly be considered fully diagnosed during the claim period.

37. Giving evidence, Mr Kokinovic said he saw Dr Lakicevic several times under a mental health plan but he could not afford to keep seeing him.  He took Dr Lakicevic’s advice to change medication, do exercise and have counselling. After two, and possibly three, admissions to the mental health unit at Liverpool Hospital in December 2014 and January 2015, his condition improved somewhat with new medication.  He said things “got better” until April 2015, when he suffered a serious injury to his ankle which eventually required surgery.

38. In written submissions, the Secretary contended that Mr Kokinovic’s psychological condition could not be considered fully treated and stabilised during the claim period.  In oral submissions at the hearing, the Secretary’s representative submitted that it could be considered fully treated and stabilised during the claim period but I am not satisfied that it was.  The reports make clear that treatment options were still being considered and, throughout the claim period, Mr Kokinovic’s condition was unstable enough that he had repeated admissions to hospital.  His condition then improved somewhat until declining again.  It appears that he may have reached some level of stability by now.

39. Taking these matters into account, I am not satisfied that Mr Kokinovic’s psychological condition was fully treated and stabilised during the claim period.  It follows that it cannot be given an impairment rating for the claim period.

    Peripheral vascular disease

40. Dr Maric-Todorovic stated that this condition had its onset in 2012 and had been confirmed by a vascular specialist; current treatment was aspirin, stockings, exercise, and counselling to stop smoking. Under “Future/planned treatment” she indicated “? stent/surgery”.

41. Mr Kokinovic gave evidence that this condition was causing him pain at night and he had difficulty walking; he underwent surgery at the same time as he had surgery on his Achilles tendon in 2015, but the condition is not recovering.  On this basis, I find that this condition was fully diagnosed but was not fully treated and stabilised during the claim period. It therefore could not be given an impairment rating.

    CONCLUSION

42. For these reasons, I am satisfied that Mr Kokinovic’s left elbow condition and tinnitus were fully diagnosed and treated and stabilised during the claim period and that each was rated five points.  I am satisfied that his psychological condition and his peripheral vascular disease were fully diagnosed but neither was fully treated and stabilised during the claim period.  Mr Kokinovic’s other conditions had limited, if any impact on his functioning and attract a rating of nil points each.

43. As Mr Kokinovic’s impairments did not rate 20 or more points on the Impairment Tables, his claim for DSP cannot succeed.  It is therefore not necessary to consider whether he also had a continuing inability to work during the claim period.  However, I note that the information before me indicates that he had not completed a program of support before applying for the DSP.

44. To have a continuing inability to work, the Act provides that a person must have actively participated in a program of support: s 94(2)(aa).  Ordinarily, a person must have participated in a program of support for at least 18 months in the 36 months immediately before claiming DSP: Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 cl 5(1) and (2). A person who has a severe impairment, meaning one which rates 20 points or more under a single Impairment Table, is not required to have completed a program of support in order to have a continuing inability to work.

45. For these reasons, I affirm the decision under review.  Mr Kokinovic may apply for DSP again at any time.  If he wishes to do so, it would be in his interests to undertake, or complete, a program of support as best as he is able.

I certify that the preceding 45 (forty -five) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey

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

Associate

Dated 20 May 2016

Date of hearing	10 May 2016
Applicant	In person
Solicitors for the Respondent	Dr S Thompson