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

[2016] AATA 233

Kopanja and Secretary, Department of Social Services (Social services second review) [2016] AATA 233 (1 March 2016)

Division	GENERAL DIVISION
File Number	2015/1770
Re	Zivko Kopanja
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Deputy President J W Constance
Date	1 March 2016
Date of written reasons	13 April 2016
Place	Sydney

The decision under review, being the decision of the Social Security Appeals Tribunal made 11 March 2015 which affirmed the decision of the Authorised Review Officer to reject Mr Kopanja’s request for indefinite portability of his disability support pension, is affirmed.

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

J W Constance
Deputy President

CATCHWORDS

SOCIAL SECURITY - Disability Support Pension - application for indefinite portability of pension - whether impairment fully diagnosed, treated and stabilised - whether impairment attracts rating of 20 points under Impairment Tables - decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) 94(1)(b), 94(3B), 1218AAA(1)

SECONDARY MATERIALS

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

WRITTEN REASONS FOR DECISION

(DECISION GIVEN ORALLY ON 1 MARCH 2016)

Deputy President J W Constance

13 April 2016

INTRODUCTION

1. Mr Kopanja has been in receipt of a disability support pension since 2003. In February 2014 he requested that he be granted indefinite portability of the pension so that he could live overseas and continue to receive the benefit.

2. In March 2015 the Social Security Appeals Tribunal affirmed a decision to refuse Mr Kopanja's request. Mr Kopanja applied to this Tribunal to review the decision.

3. On 1 March 2016 I affirmed the decision of the Social Security Appeals Tribunal and gave my reasons for so doing orally.

4. I now provide my reasons in writing.

   BACKGROUND

5. Mr Kopanja is 52 years old. For several years he has suffered from a number of medical conditions. However, at the hearing of his application his representative advised me that the only relevant condition is the psychiatric impairment from which Mr Kopanja has suffered from about 2000.

6. In 2000, Dr Kecmanovic, Psychiatrist, diagnosed Mr Kopanja as suffering from a mixed anxiety and depression syndrome[1]. In 2014 Dr Kecmanovic advised that his diagnosis was that of adjustment disorder.[2]

   [1] Exhibit R1 p.84.

   [2] Exhibit R1 p.111.

7. In March 2014 Mr Kopanja was assessed by Dr Tomic, Clinical Psychologist, upon referral from his General Practitioner. Dr Tomic diagnosed Mr Kopanja as suffering major depressive disorder, chronic, severe, without psychotic features.[3] In his report of 10 March 2014 she expressed the following opinion:

   In my clinical judgement, if Mr Kopanja moved to the country of his origin, it would have beneficial effects on his mental health and overall well-being. Considering this, I would recommend approving the transfer of his Disability Support Pension to Bosnia as soon as he is ready to return to his home country. Remaining in a culture to which he is unable to adapt may have detrimental effects on his mental health. He has repeatedly stated that he has lost interest in life under the current circumstances, as he cannot find pleasure in any kind of activity or recreation.[4]

   [3] Exhibit R1 p.123.

   [4] Exhibit R1 p.124.

   LEGISLATION

8. To be entitled to indefinite portability of his pension, Mr Kopanja must meet the requirements of subsection 1218AAA(1) of the Social Security Act 1991 (Cth) which provides:

   (1)The Secretary may make a written determination that a particular person's maximum portability period for disability support pension is an unlimited period, if all of the following circumstances (the qualifying circumstances) exist:

   (a) the person is receiving disability support pension;

   (b)the Secretary is satisfied that the person's impairment is a severe impairment (within the meaning of subsection 94(3B));

   (c)the Secretary is satisfied that the person will have that severe impairment for at least the next 5 years;

   (d)the Secretary is satisfied that, if the person were in Australia, the severe impairment would prevent the person from performing any work independently of a program of support (within the meaning of subsection 94(4)) within the next 5 years.

9. Subsection 94(3B) provides that for an impairment to be “severe”, it must attract a rating of 20 points under a single Impairment Table.

10. To attract a rating an impairment must be permanent, i.e. it must be fully diagnosed, treated and stabilised – see subsection 94(1)(b) of the Act.

    THE ISSUES

11. Two issues arise for determination.

    (1)Has the impairment suffered by Mr Kopanja been fully diagnosed, treated and stabilised?

    (2)If so, does it attract a rating of 20 points or more under the Impairment Tables?

    CONSIDERATION

    Issue 1:          Has the impairment suffered by Mr Kopanja been fully diagnosed, treated and stabilised?

12. Mr Kopanja was originally diagnosed with a mental disorder in 2000. In February 2014 Dr Kecmanovic reported that he had no consultations with Mr Kopanja between 2006 and 2012. There was one consultation in 2012 and two in 2014.

13. On 10 March 2014 Dr Tomic reported that “Mr Kopanja demonstrated great motivation for psychological treatment, will start on 15.03.2014.” [5]  Dr Tomic also reported that:

    I am of the opinion that he will require a long-term treatment in order to improve significantly his social, emotional, recreational and cognitive functioning…. [Mr Kopanja] has never received a structured psychological treatment.[6]

    [5] Exhibit R1 p.118.

    [6] Exhibit R1 p.124.

14. In January 2016, Dr Turner of the Health Professional Advisory Unit of the Department of Human Services assessed Mr Kopanja. Dr Turner reported, in part:

    It is my medical opinion that Mr Kopanja has reasonable expectation of improvement in his medical condition and its resultant impairment of function in the next 24 months due to the following points:

    ·Dr Tomic on 11^th November 2015 states (verbatim): “The fact that Mr. Kopanja lives under ongoing stress in this country (to which he has never been able to adapt) impedes his recovery process. As a consequence, his progress has not reached a substantial level of productive functioning.”

    ·Specialist psychiatrist Dr Dusan Kecmanovic in his letter dated 26^th February 2014 opined that Mr. Kopanja suffered from an Adjustment Disorder.

    ·Medicare records indicate that Mr. Kopanja has had only sporadic review from treating consultant psychiatrist, Dr Kecmanovic. Most recent was on 26^th February 2014.

    ·PBS records indicate that Mr. Kopanja is only taking a sporadic sub-therapeutic dose of a tricyclic antidepressant (TCA) amitriptyline 25mg at night, and has had only two very brief trials of selective serotonin uptake inhibitors (SSRI) serotonin & escitalopram (Appendix 3 below) Note: no antidepressant medication dispensed after 20^th March 2015

    ·Dr Tomic states that Mr. Kopanja’s mental and overall health will improve if he moves to Bosnia.

    It is my medical opinion that Mr. Kopanja has not yet had optimal management of his psychiatric disorder, in as far as he has not been under the regular care of a treating psychiatrist or had adequate trials of effective medication.[7]

    [7] Exhibit R2 p.3.

15. Dr Turner deals directly with the question of the treatment and stabilisation of Mr Kopanja's condition. He examined Mr Kopanja recently. For these reasons I prefer his opinion to that of Dr Tomic.

16. On the basis of the evidence of Dr Turner I am satisfied that Mr Kopanja's mental condition has not been fully treated and stabilised. As a result, an impairment rating cannot be allocated to this condition.

    Issue 2:          Does Mr Kopanja's impairment attract a rating of 20 points or more under the Impairment Tables?

17. As I have decided that Mr Kopanja's condition has not been fully treated and stabilised, a rating cannot be assigned to that condition. However, had I been satisfied that such a rating could have been allocated, I would not have been satisfied that Mr Kopanja's impairment attracted the necessary rating of 20 points or more.

18. During the hearing of this application attempts were made to establish telephone contact with Mr Kopanja to enable him to give evidence. These attempts proved unsuccessful. Mr Kopanja's Representative then obtained instructions from Mr Kopanja to proceed with the application without his giving evidence. The matter continued on this basis.

19. Counsel for the Secretary made the following submissions in relation to previous evidence given by Mr Kopanja:

    The Applicant told the JCA that he is often visiting and engaging with friends and experiences some interpersonal conflict with his children. The JCA reported that “despite this condition, the client remains capable of all elements of self-care independently and travels alone to familiar places. In addition, the client stated that he is often not at home as he visits his friend in order to elevate his mood” (T19/142). The JCA reported that the Applicant resides alone and he is able to complete daily household chores.

    With the assistance of an accredited interpreter, the Applicant is recorded as making the following admissions at the SSAT hearing (T2/5):

    ·     He is able to care for himself and undertake domestic duties;

    ·     He is able to travel alone to familiar places;

    ·     He maintains stable relationships with friends in his community;

    ·     He is able to concentrate on a task for more than 10 minutes, such as watching television or following a conversation;

    ·     He is able to engage in planning and decision making, although at times he prefers isolation.[8]

    [8] Respondent’s ‘Statement of Facts & Contentions’ p. 6-7.

20. The “JCA” referred to in the preceding paragraph is the Job Capacity Assessor, a registered psychologist, who assessed Mr Kopanja for his work capacity in June 2014. The Assessor had the assistance of an interpreter in the Serbian language.

21. I accept the argument put on behalf of the Secretary that even if Mr Kopanja’s mental condition was found to be permanent, a rating of no more than five points under Table 5 of the Impairment Tables is appropriate. Dr Turner determined the level of functional impact using Table 5. In his opinion Mr Kopanja was suffering a mild impairment.

22. Table 5 provides that for an allocation of 20 points a claimant has to be assessed as meeting the following criteria:

    There is a severe functional impact on activities involving mental health function.

    (1) The person has severe difficulties with most of the following:

    (a)self care and independent living;

    Example: The person needs regular support to live independently, that is, needs visits or assistance at least twice a week from a family member, friend, health worker or support worker.

    (b)social/recreational activities and travel;

    Example: The person travels alone only in familiar areas (such as the local shops or other familiar venues).

    (c)interpersonal relationships;

    Example 1: The person has very limited social contacts and involvement unless these are organised for the person.

    Example 2: The person often has difficulty interacting with other people and may need assistance or support from a companion to engage in social interactions.

    (d)concentration and task completion;

    Example 1: The person has difficulty concentrating on any task or conversation for more than 10 minutes.

    Example 2: The person has slowed movements or reaction time due to psychiatric illness or treatment effects.

    (e)behaviour, planning and decision-making;

    Example: The person’s behaviour, thoughts and conversation are significantly and frequently disturbed.

    (f)work/training capacity.

    Example: The person is unable to attend work, education or training on a regular basis over a lengthy period due to ongoing mental illness.

23. On the evidence before me, Mr Kopanja does not meet these criteria.

    CONCLUSION

24. For the reasons set out, the decision under review, being the decision of the Social Security Appeals Tribunal made 11 March 2015 which affirmed the decision of the Authorised Review Officer to reject Mr Kopanja’s request for indefinite portability of his disability support pension, was affirmed.

I certify that the preceding 24 (twenty -four) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance.

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

Associate

Dated 13 April 2016

Date(s) of hearing	1 March 2016
Date final submissions received	1 March 2016
Advocate for the Applicant	R Alexandrova
Solicitors for the Respondent	B Salaji; Department of Human Services