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

[2017] AATA 2035

Kovacic; Secretary, Department of Social Services and (Social services second review) [2017] AATA 2035 (2 November 2017)

Division:GENERAL DIVISION

File Number:           2017/0152

Re:Secretary, Department of Social Services

APPLICANT

AndWilliam Kovacic

RESPONDENT

DECISION

Tribunal:Miss E A Shanahan, Member

Date:2 November 2017

Place:Melbourne

The Tribunal sets aside the decision under review and affirms the decision of the authorised review officer dated 15 August 2016.

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

Miss E A Shanahan, Member

SOCIAL SECURITY – Pensions, Allowances and Benefits – application for disability support pension – claimed conditions of cervical thoracic and lumbar osteoarthritis – hypertension well controlled – tinnitus of debatable severity – relevant investigations and conclusions determined in 2005 – no recent update of medical status – decision set aside and substituted – initial decision of authorised review officer affirmed

Legislation

Social Security Act 1991
Social Security (Administration) Act 1999
Social Security (Tables for the Assessment of Work Related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables)

Social Security (Active Participation for Disability Support Pension) Determination 2014 (POS Determination)

Secondary Materials

Social Security Law Guide

REASONS FOR DECISION

Miss E A Shanahan, Member

2 November 2017

1. Mr William Kovacic lodged a claim for disability support pension (DSP) on 5 January 2016. He had ceased work with Australia Post in his permanent part time role of 20 hours per week some six weeks prior to this lodgement. The medical conditions said to be causing his disablement were thoracic and lumbosacral osteoarthritis, arthritis of the left hip and hypertension. While he had congenital defects in his lumbosacral spine, in particular, spina bifida occulta of the upper sacral segment and a pars defect in L5, these were not considered to contribute to any disability. 

2. On 24 June 2016, Mr Kovacic’s claim was rejected. Review by an authorised review officer (ARO) resulted in affirmation of the determination on 15 August 2016. Mr Kovacic applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT Tier 1) for further review. 

3. On 6 December 2016 the AAT Tier 1 reviewed and set aside the decision to reject Mr Kovacic’s claim for DSP, substituting its decision that he satisfied s 94(1)(a), (b), and (c) of the Social Security Act 1991 (the Act). The Tribunal found that his conditions attracted a total of 20 points in impairment rating under the Social Security (Tables for the Assessment of Work Related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables). Specifically, the AAT Tier 1 found that his conditions attracted 5 points under Table 4 for spinal function, 5 points under Table 3 for the lower limb symptoms, 5 points under Table 1 for functions requiring physical exertion or stamina, and 5 points under Table 11 relating to hearing.

4. Mr Kovacic had worked up until 18 December 2015 when he resigned because of ill health. His ability to work was also considered by the AAT Tier 1 and it was found that prior to obtaining employment with Australia Post he had undertaken an employment program aimed at returning him to work. This program was run by the Commonwealth Rehabilitation Service and was considered to be equivalent to a program of support, as required by the POS Determination of 2014.

5. On 6 January 2017 the Secretary, Department of Social Services (the Secretary) lodged an application with the Administrative Appeals Tribunal, General and Other Divisions, for review of the decision of the AAT Tier 1, and requested a Stay Order.

6. At the hearing on 23 August 2017 the Secretary was represented by Ms Ailsa Bramley, senior solicitor with the Department of Human Services, and Mr Kovacic was self‑represented with his brother Nick assisting. The Secretary provided the documentation lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T‑documents) and had summonsed the records of Mr Kovacic’s treating general practitioner, which contained several relevant reports from medical consultants and specialists. Mr Kovacic gave evidence before the Tribunal.

   BACKGROUND TO THE APPLICATION

7. Mr William Kovacic lives with his two brothers. His brother Nick works full time for Australia Post and also has other employment, working almost seven days per week. Mr Kovacic’s second brother, whose name is unknown, has a psychiatric disorder, suffers from morbid obesity, and can barely walk. Nick and the respondent William assist their brother. 

8. Mr Kovacic has a long work history, and was employed mainly in factory work until he accepted a redundancy package in 2009. From 2009 until 2012 he cared for his mother who had severe dementia. He was responsible for all of her care, this being a 24 hour per day undertaking. During this period he received a carer’s pension. Following his mother’s death in 2012, William undertook a course in Aged Care Nursing. He gained a qualification but did not obtain work in that field, having elected not to work for the group with whom he trained. He did, however, obtain work on a permanent part time, 20 hours per week basis with Australia Post as a postal transport officer collecting and delivering mail in bags. 

9. Mr Kovacic worked at this part time job for 15 months and resigned in December 2015, though he had been off work for some six weeks prior to that date on accrued sick leave. He found he was physically unable to cope with the demands of the job, in particular the lifting of mail bags. This activity caused diffuse back pain involving predominantly his lumbar spine and his neck. Mr Kovacic had injured his back in a fall at work in the 1990’s and attributes his current symptomatology to that event. 

10. Mr Kovacic’s general practitioner, Dr Ian MacLean, completed the supporting medical section of the claim for DSP and provided his records and various reports in support of Mr Kovacic’s application. The Secretary accepts that Mr Kovacic has osteoarthritis of his spine and left hip, hypertension, and a hearing impairment. Over the years that he has attended Dr MacLean, Mr Kovacic has undergone investigation by and consultation with two rheumatologists, Dr Jeniffer Harmer and Dr Marian Miller; and a cardiologist, Dr Bhupendra Pathik. Mr Kovacic underwent coronary angiography, which was normal; an MRI of the brain, which was normal; and has had audiometry performed for his hearing. He has been assessed by an ear, nose and throat surgeon, Mr T John Redhead.

11. Dr MacLean prescribed non-steroidal anti-inflammatory medication in the form of Mobic for Mr Kovacic’s spinal pain. He has also been prescribed Nexium as he is said to have a hiatus hernia with reflux. Mr Kovacic does not take the Mobic as prescribed. He read the adverse complications relating to this medication, in particular, intestinal bleeding, and as he puts it, is scared of taking Mobic. In his evidence to the Tribunal, he estimated that he would take one Mobic tablet a month rather than two or three a day as prescribed. He does take over-the-counter analgesics such as Panadol. His current treatment is hydrotherapy and home exercises. Despite finding hydrotherapy very beneficial, he cannot always attend hydrotherapy classes as these are funded and provided primarily for the elderly and he does not meet the criteria based on his age.

12. Most of the investigations relevant to his medical conditions took place in the mid-2000s. For example, he had a CT examination of his spine in 2005, this showed mild degenerative changes in his left hip, normal vertebral discs at L1, 2, 3, and 4 and a pars defect at L5/S1. The L5/S1 disc was normal. In 2008 a CT scan of his cervical spine showed mild degenerative changes only. Magnetic Resonance Imaging (MRI) of Mr Kovacic’s cervical spine in 2005 showed only minor changes with a broad based C6/7 disc protrusion of mild degree. Since 2008 his radiological imaging has been restricted to plain x-rays. These do not show any evidence of major progression. Similarly, x-rays of his hand have shown only minor changes of osteoarthritis. The more recent x-rays performed in 2015 reportedly show moderate degenerative changes in the thoracic spine, preservation of vertebral heights and discs in the lumbar spine with mild degenerative changes only and mild degenerative changes in the hips.

13. Mr Kovacic’s hearing was investigated in 2009. He was found to have mild high frequency hearing loss, more on the left than the right, but otherwise his hearing was said to be excellent. These investigations were performed by Mr Redhead. In view of the finding of endolymphatic hydrops, Mr Redhead recommended Mr Kovacic should restrict his intake of salt, caffeine, and chocolate, and suggested that he may require a low dose of a diuretic in order to control his symptom of tinnitus. 

14. The records of Dr MacLean do not record Mr Kovacic’s blood pressure with any degree of regularity, there only being two or three such entries between 2005 and 2016. He was investigated for hypertension and has been on treatment since 2005. Dr MacLean has stated that the condition was well controlled and did not have an impact on Mr Kovacic’s capacity for work.

15. Mr Kovacic underwent an employment services assessment on 26 October 2012 in relation to the lodgement of his DSP claim, and a job capacity assessment on 23 June 2016. The employment services assessment recorded osteoarthritis of Mr Kovacic’s cervical spine as having been present for some seven years; that tinnitus was diagnosed in 2012; and hypertension. His baseline work capacity was assessed as being 15 to 22 hours per week and a program with a disability management service was recommended.

16. The Job Capacity Assessment was performed by a rehabilitation counsellor who considered the spinal disorder as the only condition impacting on Mr Kovacic’s work capacity. The assessor also noted the investigations performed and concluded that the condition, while diagnosed as spinal osteoarthritis, was not fully treated and stabilised. The Assessment states that Mr Kovacic had just commenced hydrotherapy, he had been advised to lose weight and undertake a home exercise program, and he had been prescribed Mobic. It was recorded that he was able to use public transport without assistance. His baseline work capacity was estimated to be 15 to 22 hours, which would rise to 23 to 29 hours per week within two years with intervention. The assessor had the reports of Dr Hamer and Dr Miller, rheumatologists, and Dr MacLean, general practitioner.

    Oral Evidence

17. Mr William Kovacic’s evidence has been summarised under BACKGROUND TO THE APPLICATION. His brother Nick outlined the difficulties they had experienced in obtaining information from Centrelink, in particular, relating to the evidence they needed to produce. They found some of the advice they had received was conflicting. 

18. The Tribunal sought to clarify some aspects of Mr William Kovacic’s evidence, particularly relating to the evidence he gave before the AAT 1^st Tier Member. 

19. At the AAT Tier 1, Member Grant had apparently obtained evidence that Mr Kovacic had on a couple of occasions collapsed due to his back condition, as is stated at paragraph 20 of her decision. Given the connotation of the word collapse, I asked Mr Kovacic what he meant. He denied ever falling down or losing consciousness. He had used the term in relation to occasional episodes of back pain that rendered him unable to engage in any physical effort. 

20. I also asked him whether he had complied with the treatment recommended by Mr Redhead with respect to his tinnitus. Mr Kovacic was unaware of these recommendations, which were apparently only conveyed by Mr Redhead to Dr MacLean, with the intention for the latter to institute. Mr Kovacic had not followed this dietary advice. 

21. Mr Kovacic estimated his seating tolerance was 15 minutes, after which he would stand, move around and resume sitting. The Tribunal estimates that he sat for approximately 30 minutes during the hearing without obvious distress.

22. Mr Kovacic expressed his willingness to work if he could find an appropriate job.

23. Mr Kovacic confirmed that the anti-inflammatory medication Mobic was effective in controlling his spinal pain, but he was only taking one tablet a month, rather than the two prescribed on a daily basis, as he was fearful of the side effect of intestinal bleeding. The general practice notes do not record the prescribing of Mobic but Mr Kovacic declared that he was on this medication in his written claim lodged 6 January 2016. Non-steroidal anti‑inflammatory medication was recommended in 2008, but in 2012 Dr Miller, a rheumatologist, suggested only simple analgesics such as Panadol were indicated.

    DOCUMENTARY EVIDENCE

24. The documentary evidence relates to the reports of Dr Miller and Dr Harmer, both rheumatologists, and the cardiologist, Dr Pathik. These reports were extremely old and have been referred to under BACKGROUND TO THE APPLICATION. However, some features require acknowledgement.

25. Dr Miller who saw Mr Kovacic in October and November 2007, diagnosed degenerative disease of the lumbar spine and normal hip function. She regarded the changes radiologically as being mild and advised that he swim on regular basis, have hydrotherapy, and when he was not swimming or indulging in hydrotherapy, that he should regularly walk. Panadol was recommended for pain control but Dr Miller considered a trial of non-steroidal anti-inflammatory medication may be worthwhile. Mr Kovacic was advised to lose weight as he weighed 140 kilograms. He was and is six foot three inches tall.

26. Dr Harmer saw Mr Kovacic one year later in relation to his cervical spine intermittent pain. In the intervening 12 months since he had seen Dr Miller he had lost 30 kilograms in weight with the help of a dietician and a weight management specialist. Dr Harmer considered the changes in the cervical spine, as revealed by a CT scan, were mild and she advised that he avoid prolonged overhead activity, perform regular neck exercises, and continue to take non-steroidal anti-inflammatory medication. 

27. Dr Pathik, cardiologist, saw Mr Kovacic in relation to his hypertension and also investigated him for complications of hypertension, such as coronary artery disease and left ventricular dysfunction. He had been treated with appropriate anti-hypertensive agents and on 11 May 2011 his blood pressure was 130 systolic and 90 diastolic which is normal. He was taking 150 mg doses of Avapro, being half the normal dose, as well as 50 mg of Noten daily. 

28. The echocardiogram performed in 2010 revealed normal left ventricular function with a normal ejection fraction. It is unclear why he underwent CT coronary angiography but this too was normal. Despite his age, he had no evidence of any calcified plaques in any coronary vessel. 

    RELEVANT LEGISLATION

29. Section 94 of the Act delineates the criteria for qualification for a DSP and states:

    94  Qualification 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;

    (ii)     the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and ...

30. Section 94(3B) defines a severe impairment as a single condition attracting an impairment rating of 20 points or more, and states:

    (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.

31. In relation to the continuing inability to work, s 94(1)(c) of the Act raises the requirement that the individual participate in a program of support as provided in the Social Security (Active Participation for Disability Support Pension) Determination 2014 (POS Determination). Section 7(2) of the POS Determination states:

    7  Requirements for active participation

    Requirements for period of participation in program of support

    (2)This subsection is satisfied in relation to a person and a program of support if the person participated in the program of support for at least 18 months during the relevant period.

    Note:    A period during which a person does not participate in a program of support is not to be counted (see section 8).

    SUBMISSIONS

32. Ms Bramley for the Secretary has provided detailed submissions in their Statement of Facts and Contentions, which were summarised at the hearing. The Secretary accepted that Mr Kovacic had osteoarthritis of his thoracolumbar spine and his left hip, but contended that there was limited medical evidence before the Tribunal relating to physical stamina and exertion, limited evidence in relation to spinal function (Impairment Table 4), and very little evidence in relation to function of the lower limbs and in particular the left hip (Impairment Table 3). Further, it was contended that there was evidence that Mr Kovacic’s tinnitus and hypertension did not result in any incapacity for work, nor did it attract an impairment rating based on the evidence from the general practitioner, the audiologist, and Mr Redhead. The Secretary noted that the treating general practitioner, Dr MacLean, had concluded that Mr Kovacic had previously worked in a sedentary job for 15 or more hours per week and thus contended that s 94(1)(c) was not satisfied.

33. Mr Kovacic did not make any formal submissions nor had he filed a Statement of Facts, Issues and Contentions.

    TRIBUNAL’S DELIBERATIONS AND DECISION

34. The medical records and opinions relating to Mr Kovacic support a diagnosis of mild degenerative osteoarthritis involving the cervical spine, lumbosacral spine with very minor changes in his hips. The only physical examination recorded in relation to the spine, are those of Dr Harmer in 2008 and Dr Miller in 2007. Both of these doctors performed a physical examination which was declared to be normal in relation to the lumbosacral spinal range of movement and all other respects, and that the cervical spine showed only a slight reduction in lateral flexion. No physical examination of any of Mr Kovacic’s spine has been recorded thereafter.

35. The only other objective evidence provided is the CT scan and the MRI, both of which were performed in 2005 and confirmed the presence of minor degenerative changes. Since 2005 Mr Kovacic has only had plain x-rays of his spine performed and as these do not have the same degree of resolution, their significance is dubious. Between 2005 and 2015, these x-rays have shown mild degenerative changes with the exception of one x-ray performed in August 2014 which showed moderate facet joint changes at the L5/S1 spinal level.

36. Mr Kovacic’s current status and that which existed in early 2016 when he first lodged his application for the DSP is unknown. Throughout this period he has reported persistent back and lesser neck pain.

37. Treatment provided has been limited to over-the-counter analgesics, mainly Panadol. Mr Kovacic had been advised to lose weight and between 2007 and 2008 he shed 30 kilograms. He has since regained all lost weight and now weighs 142 kilograms. He does benefit from hydrotherapy and has found Mobic effective. He does not however, take the latter because of his fear of adverse side effects. He has some difficulty accessing hydrotherapy and it would not appear that he has never done regular swimming as advised by Dr Miller, nor has he walked on a regular basis.

1. Mr Kovacic believes that he could cope with a part time job for more than 15 hours per week, should a suitable sedentary job be available. His treating general practitioner Dr MacLean also certified him as having a capacity to work for 15 hours of more in a sedentary role.

2. The Tribunal accepts that Mr Kovacic satisfies s 94(1)(a) of the Act in that he has mild osteoarthritis affecting the spine and hips, hypertension that is well controlled, and excellent hearing but tinnitus. The evidence of both specialists and the treating general practitioner is that the hypertension is well controlled and the tinnitus, while persisting, does not impact on his capacity for work.

3. The Impairment Tables outline the rules for applying the Tables, such as the information that must and must not be taken into account. Section 8 of the Impairment Tables states that symptoms reported by a person regarding their own condition can only be taken into account where there is corroborating evidence. Subsection (2) states that the impact of non-medical factors when assessing a person’s impairment must not be taken into account.

4. The Tribunal finds that Mr Kovacic’s symptoms have generally not been corroborated by objective evidence. Additionally, where his brother Nick suggested other factors that should be taken into consideration, these were non-medical in character, and as such, they have not been considered.  

5. Based primarily on the medical evidence provided, the Tribunal finds that Mr Kovacic’s hypertension and tinnitus are fully diagnosed. The hypertension has been treated, but the tinnitus has not been treated as recommended by Mr Redhead. However, the treating general practitioner considered that the tinnitus did not impact on Mr Kovacic’s capacity for work and therefore these two conditions do not contribute to his condition in terms of a functional impact preventing work. 

6. Mr Kovacic’s major symptomatic problem is that of back pain and the Tribunal finds, again on the medical evidence, that this has not been fully diagnosed, treated, or stabilised. The diagnosis is essentially based on investigations performed nearly 10 years ago and more likely than not, do not reflect the current condition. The treatment recommended has not been followed, although it should be considered reasonable by any medical practitioner and as a result the spinal condition is not stabilised. The Tribunal does not believe Mr Kovacic has been remiss in terms of following treatment, but rather it appears that he did not understand what he was to do with respect to the treatment of the tinnitus. While the use of non-steroidal anti-inflammatory medication has been recommended by Doctors Harmer, Miller, and MacLean, and while Mr Kovacic finds it very effective, he has what may be an unreasonable interpretation of the incidence of adverse responses to medication with these prescribed drugs. 

7. As s 94(1)(b) of the Act is not satisfied it is unnecessary for the Tribunal to consider s 94(1)(c) of the Act. An impairment rating is not attracted by the spinal disease or the claimed hip disease as the conditions are not fully treated and stabilised. The Tribunal sets aside the decision of the AAT Tier 1 review and affirms the reviewable decision of the ARO of 15 August 2016, rejecting Mr Kovacic’s claim for the DSP as he had an impairment rating of zero points resulting from his medical conditions not being fully treated and stabilised. This Tribunal however considers that Mr Kovacic’s underlying condition, given the time intervals relating to investigation, is potentially not fully diagnosed despite the JCA recommending and the ARO accepting that the spinal osteoarthritis was fully diagnosed. In the intervening years he could well have developed a structural spinal disorder such as a prolapsed disc or spondylolisthesis given his known congenital spinal abnormalities.

I certify that the preceding 44 (forty‑four) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member

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

Associate

Dated: 2 November 2017

Date of hearing:	23 August 2017
Applicant:	In person
Advocate for the Applicant:	Nick Kovacic, Brother
Advocate for the Respondent:	Ms Ailsa Bramley, Department of Human Services