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

[2017] AATA 652

Kopanja and Secretary, Department of Social Services (Social services second review) [2017] AATA 652 (11 May 2017)

Division:GENERAL DIVISION

File Number:           2016/4739

Re:Zivko Kopanja

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:11 May 2017

Place:Sydney

The Tribunal affirms the decision under review.

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

Senior Member A Poljak

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – whether conditions fully diagnosed, treated and stabilised at date of cancellation– whether applicant’s impairments are rated 20 points or more under the Impairment Tables - mental health function – lower back and neck pain – other conditions – conditions fully diagnosed – conditions not fully treated and stabilised – decision affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth), s 37

Social Security Act 1991 (Cth), ss 27, 94

Social Security (Administration) Act 1999 (Cth), ss 80, 118

SECONDARY MATERIALS

Social Security (Tables for the Assessment of work-related Impairment and Disability Support Pension) Determination 2011

REASONS FOR DECISION

Senior Member A Poljak

11 May 2017

1. Mr Kopanja, the applicant, has been in receipt of the disability support pension (“DSP”) since 22 September 2003.

2. On 9 August 2016, the Administrative Appeals Tribunal, Social Services and Child Support Division (“SSCSD”) affirmed a decision of the Department of Human Services (“Department”) to cancel the applicant’s DSP from 3 March 2016 (“the Decision”). The basis of the decision was that the applicant ceased to satisfy the criteria for the disability support pension set out in section 94 of the Social Security Act 1991 (Cth) (“the Act”) at the date of cancellation on 3 March 2016 (“Date of Cancellation”). The applicant seeks review of this decision.

3. Section 94 of the Act provides that to qualify for payment, a person must have a physical, intellectual or psychiatric impairment, or impairments, which rate 20 or more points according to the Social Security (Tables for the Assessment of work-related Impairment and Disability Support Pension) Determination 2011 (“the Impairment Tables”); and a continuing inability to work as defined in the Act.

4. The applicant had to satisfy these criteria at the date of cancellation.

5. In assessing the applicant’s continued qualification for the disability support pension in 2016, the Department was required to apply the Impairment Tables pursuant to subsections 27(3) and (4) of the Act. The Impairment Tables are stricter than the tables which applied when the applicant was first granted the disability support pension on 22 September 2003.

6. The power for the Secretary to cancel the applicant’s DSP is contained in section 80 of the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”). The cancellation decision takes effect on the day on which it was made, in this case on the date of cancellation pursuant to subsection 118(13) of the Administration Act.

7. The Secretary accepts that the applicant suffers from a number of conditions at the date of cancellation. He therefore satisfies subsection 94(1)(a) of the Act. The issue to be determined in these proceedings is whether the applicant satisfied section 94(1)(b) and (c) of the act at the date of cancellation.

8. In addition to the T-documents and supplementary T-documents, lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth), the applicant tendered at hearing additional evidence from Dr Tomic, Dr Kuljic and Dr Srinivasan, which I have read and considered.

   IMPAIRMENT TABLES

9. The Impairment Tables include rules for assigning ratings to determine the level of functional impact of impairment. Impairment is defined in section 3 to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition”. 

10. Subsections 6(3) and 6(4) of the Impairment Tables provide that impairment can only be given a rating on the Impairment Tables if the condition is considered permanent. A condition is permanent if it has being fully diagnosed by an appropriately qualified medical practitioner; it has been fully treated; fully stabilised; and it will more likely than not, persist for more than two years. 

11. In assessing whether a condition is fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, subsection 6(5) instructs that a decision- maker must consider whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred; and whether treatment is still continuing or is planned in the next two years and whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next two years.

12. Section 11 of the Impairment Tables instructs that an impairment rating can only be assigned in accordance with the ratings in each table and a rating cannot be assigned between consecutive impairment ratings. Significantly, section 11(1)(c) provides:

    (c) if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied… (emphasis added)

13. For multiple conditions causing a common problem, subsection 10(5) and 10(6) of the Impairment Tables provides :

    (5) 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.

    (6) …it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once.

    MENTAL HEALTH CONDITION- CHRONIC MAJOR DEPRESSIVE DISORDER

14. The Secretary contends that the applicant’s mental health condition was fully diagnosed at the date of cancellation but was not fully treated and stabilised. I agree for the following reasons.

15. Table 5 of the Impairment Tables is to be used when a person has a permanent mental health condition resulting in functional impairment. Self-reporting of symptoms alone is insufficient and there must be corroborating evidence of the person’s impairment. The Introduction to table 5 of the Impairment Tables provides (inter alia) that a diagnosis of a condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).

16. Dr Kecmanovic, a psychiatrist, first diagnosed the applicant with mixed anxiety and depression syndrome in August 2000. It appears that the applicant has since undergone intermittent psychiatric review with Dr Kecmanovic from 2003 until 2014. In a report dated 26 February 2014, he states that “from the psychiatric point of view he (the applicant) suffers from adjustment disorder”.

17. In a report dated 10 March 2014, Dr Tomic, a treating clinical psychologist, diagnosed the applicant with “major depressive disorder, chronic, severe, without psychotic features”. In regards to treatment Dr Tomic expressed the following:

    “…I am of the opinion that he will require long-term treatment in order to improve significantly his social, emotional, recreational and cognitive functioning…

    In addition to the proposed psychological treatment, Mr Kopanja has been consulting for years a Serbian-speaking psychiatrist, Dr Kecmanovic, who has prescribed for him on antidepressant agent (Endep 25 mg daily). However, he has never received a structured psychological treatment” (emphasis added)

18. In a Medical Report for Centrelink dated 10 March 2014, Dr Tomic said that the applicant “…demonstrated great motivation for psychological treatment, will start on 15.03.2014”. At hearing it was confirmed that the applicant had the intention of undertaking psychological treatment but had not undertaken the recommended treatment by the cancellation date.

19. In a report dated 9 March 2015, Dr Tomic opines that considering the applicant’s “…vulnerable both mental and physical health, I’m of the opinion that Mr Kopanja is mentally unable to accept responsibility for any kind of formal employment, including voluntary work, for the rest of his life”.

20. In a report from the Health Professional Advisory Unit (“HPAU report”) dated 13 January 2016, Dr Turner opined that, in his medical opinion, the applicant “has not yet had optimal management of his psychiatric disorder, in as far as he has not been under the regular care of the treating psychiatrist or had adequate trials of effective medication”.

21. It is noted in the HPAU report that “PBS records indicate that Mr Kopanja is only taking a sporadic sub-therapeutic dose of a tricyclic antidepressant (TCA) amitriptyline 25 mg a night, and has had only two very brief trials of selective serotonin uptake inhibitors (SSRIs) serotonin and escitalopram…no antidepressant medication dispensed after 20 March 2015”.

22. Dr Tomic says, in her report dated 16 July 2016, that the applicant has undertaken six psychological sessions to date and says:

    “Due to a lack of introspectiveness and mindfulness, Mr Kopanja has been very refractory to any therapeutic approach. He continues to complain about his inability to adapt to and accept the lifestyle which is different from his original culture…

    In this case, I do not think that any medication would produce a substantial benefit, as the use would merely reinforce Mr Kopanja’s characteristic patterns of behaviour and passivity rather than promoting a healthier and more adaptive response…

    Plan: continue treatment with monthly sessions”.

23. In the most recent report of Dr Tomic dated 20 February 2017, she advises that the applicant continues to attend psychological treatment sessions with her and that this is the fourth consecutive year during which has been her patient. She opines that his condition of major depressive disorder is fully diagnosed, treated and stabilised. Dr Tomic goes on to advise that she last assessed the applicant on 16 February 2017 at which time she assessed the level of his total mental impairment in regards to function. Her assessment places the applicant in the severe impairment category with a score of 24 impairment points.

24. While these most recent reports of Dr Tomic (16 July 2016 and 20 February 2017) provide relevant evidence in regards to permanency of the applicant’s mental health condition and its functional impact, the reports were created after the cancellation date. The reports are of little assistance in determining the applicant’s condition as it was at the date of cancellation, but may assist the applicant with any future applications he may make for the DSP.

25. For all the above reasons I am satisfied that the applicant’s mental health condition was fully diagnosed but was not fully treated and stabilised at the date of cancellation. It follows that an impairment rating cannot be assigned to this condition.

    LOWER BACK AND NECK PAIN

26. The applicant sustained two workplace injuries to his lower back in late 1999. He also had an injury to his neck and left shoulder in mid July 2001.

27. The Secretary contends that the applicant’s condition of lower back and neck pain was fully diagnosed at the cancellation date but was not fully treated and stabilised. I agree for the following reasons.

28. Dr Costa, an occupational health consultant, opined in his report dated 10 July 2002, that the applicant “will probably need to go onto surgical laminectomy/decompression at the level of the neck especially if there is to the deterioration of his symptoms. He may benefit from serial cortisone anaesthetic injection to the left shoulder although this would be essentially palliative”. At hearing the applicant confirmed that this recommended treatment was not undertaken.

29. Additionally, Dr Costa in his report dated 10 July 2012, advised that “in the interim he needs to continue with a full round of active conservative management including attention to lifestyle, judicious use of pharmacotherapy, physiotherapy to the neck and shoulder and bursts, warm hydrotherapy as well as formal hydrotherapy also in bursts”.

30. There is very limited evidence to verify the client has been accessing reasonable treatment continually up until the cancellation date. The only evidence provided is that of Mr Colovic, physiotherapist who first started treating the applicant after the cancellation date. In his report dated 5 October 2016, he says that the applicant started treatment on 5 October 2016 for his neck and lower back pain. Mr Colovic provided the applicant with a treatment plan.

31. For all the above reasons I am satisfied that the applicant’s lower back and neck pain was fully diagnosed but was not fully treated and stabilised at the date of cancellation. It follows that an impairment rating cannot be assigned to this condition.

    HYPERTENSION

32. The Secretary accepts that the condition of hypertension was fully diagnosed treated and stabilised at the date of cancellation. This is supported by the report of Dr Tjeuw dated 28 February 2014.

33. In regards to functional impact, I note that the Job Capacity Assessment report dated 13 January 2016, concludes that this condition had a “minimal impact because it had been adequately managed with appropriate medical intervention for some time”.

34. Accordingly the condition of hypertension cannot be awarded any impairment points under Table 1 of the Impairment Tables.

    PARTIAL HEARING LOSS

35. The Secretary accepts that the condition of partial hearing loss was fully diagnosed but contends that it was not fully treated and stabilised at the date of cancellation. I agree for the following reasons.

36. Apart from the audiologist report dated 17 March 2006, there is no other documentation by treating medical practitioners. In this report, the use of hearing aids was recommended. At hearing the applicant advised that he did have hearing aids for a period of time but has since lost them.

37. There is insufficient medical evidence before me regarding the currency of this condition, the treatment undertaken and its functional impact. It follows that I cannot be satisfied that this condition was fully treated and stabilised at the date of cancellation.

    CONTINUING INABILITY TO WORK

38. As the applicant’s impairments do not rate 20 or more points on the Impairment Tables, it is therefore not necessary to consider whether he had a continuing inability to work at the date of cancellation. 

    DECISION

39. For all of the reasons given above, I affirm the decision under review.  The applicant may apply for DSP again at any time

I certify that the preceding 39 (thirty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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Associate

Dated: 11 May 2017

Date of hearing:	1 March 2017
Applicant:	By telephone
Solicitors for the Respondent:	Dr S Thompson, Department of Human Services