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

[2016] AATA 51

Magor and Secretary, Department of Social Services (Social services second review) [2016] AATA 51 (2 February 2016)

Division	GENERAL DIVISION
File Number	2015/2393
Re	Christopher Magor
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Miss E A Shanahan, Member
Date	2 February 2016
Place	Melbourne

The Tribunal affirms the decision under review.

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

Miss E A Shanahan, Member

SOCIAL SERVICES – pensions benefits and allowances – disability support pension claim – severely symptomatic – diagnosis dilated cardiomyopathy – cause of condition unknown – certified as incapacitated for 3 to 12 months with an uncertain prognosis – investigation incomplete – appropriate expert opinion and treatment lacking – treatment to date ineffective – decision 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

REASONS FOR DECISION

Miss E A Shanahan, Member

2 February 2016

1. Mr Magor lodged a claim for disability support pension (DSP) with Centrelink on 3 September 2014. The claim was rejected by a Centerlink delegate on the basis that the medical condition that he suffered was not fully diagnosed, treated and stabilised.  Mr Magor’s treating physician had certified him as incapacitated for 3 to 12 months (possibly longer) (T9).  Mr Major sought a review of the decision by a Centrelink authorised review officer (ARO). The ARO affirmed the decision to reject the claim on 11 February 2015 (T14, T15). 

2. Mr Magor sought a review of the ARO’s decision by the Social Security Appeals Tribunal (SSAT).  His application was heard on 10 April 2015 and was unsuccessful. 

3. Mr Magor’s lodged an application for review of the SSAT decision by the Administrative Appeals Tribunal (AAT) on 14 May 2015.  The hearing took place on 1 December 2015 and was conducted by telephone at Mr Magor’s request.  Mr Magor lives in Tallandoon and was too unwell to travel to Melbourne.  Mr Magor was self-represented and Ms Ailsa Bramley, a Senior Government Lawyer appeared for the Secretary, Department of Social Services (the Secretary).  The Tribunal was provided with the documents lodged by the Secretary pursuant to s 37 of the Administrative Appeals Tribunal Act 1976 (the T-documents) and the applicant tendered into evidence the result of a cardiac MRI performed on 2 July 2015 (Exhibit A1) and the report of Dr C K Medley dated 30 November 2015 (Exhibit A2). 

4. The Tribunal notes that Mr Magor lodged another claim for DSP on 23 October 2015. 

   BACKGROUND TO THE APPLICATION

5. On 23 March 2013 Mr Magor developed central chest pain which radiated to his left arm and on investigation was said by him to have been associated with the troponin rise suggesting myocardial infarction.  (Certificate T4 dated 13 May 2013).  Diagnosis was later changed by Dr Keogh to takotsubo cardiomyopathy with a myocardial infarct. At some stage in 2013 he is said to have undergone CT coronary angiography which showed no evidence of coronary artery disease.

6. Since the episode of March 2013, Mr Magor has had ongoing shortness of breath on minor exertion, fatigue and episodic chest pain severely curtailing his physical activity and rendering him incapacitated for any work.  His condition was certified as temporary by Dr Evans (general practitioner) on 26 April 2013. Then on 6 June 2013 Dr Evans certified his condition as being due to cardiomyopathy and while permanent was of uncertain prognosis but likely to show considerable improvement within two years.  (T4, p21)

7. The Tribunal has not been provided with any medical reports, investigation results or specialist opinion in relation to this episode in 2013.

8. Mr Magor was admitted to the Wodonga hospital on 2 April 2014 following a further episode of central chest pain radiating to his left arm with continuing shortness of breath on exertion and fatigue.  A provisional diagnosis of myocarditis was made.  The basis for this diagnosis is not known. 

9. Mr Magor first saw Dr Landy, a general physician, in October 2013.  Dr Landy is not a cardiologist.  The only information provided by Dr Landy has been the provision of a treating doctor’s report dated 3 September 2014.  In the report he diagnoses myocarditis of unknown cause with an onset dated of March 2013; and leading to fatigue and severe dyspnoea at a walking distance of 50 meters or strenuous physical exertion. He certified Mr Magor as likely to be incapacitated for 3 to 12 months (possibly longer).  The only treatment provided has been Ramipril, initially at 2.5 milligrams daily. [Tribunal comment - Ramipril is a so-called ACE inhibitor (angiotensin converting enzyme inhibitor) which lowers the blood pressure (in particular the diastolic pressure); and thereby reduces the so-called afterload on the left ventricle and the resistance to blood flow, in the peripheral system.] 

10. Dr Landy attached the results of a cardiac MRI to his report.   The MRI had been performed at the Alfred Hospital on 17 July 2014 and revealed low normal left ventricular systolic function with an ejection fraction of 53 per cent (normal is 50 to 80 per cent) with a thinning and hypokinesis (poor contraction) of the mid-inferior left ventricular wall.  Changes were compatible with inflammation in the myocardium (oedema).  Based on the area of hypo-kinesis and the positive inflammatory markers (apparently measured by blood testing to which the Tribunal has no access), a diagnosis of myocarditis was made.

11. Mr Magor has not improved despite sequential increasing of the dose of Ramipril, which has had the side effect of causing dizziness and postural hypotension.  Dr Landy referred him to Associate Professor Wilson, a cardiologist at St Vincent’s Hospital, Melbourne; who assessed Mr Magor on 18 September 2014.  Associate Professor Wilson recommended a repeat cardiac MRI to determine whether a myocardial biopsy was indicated.  In his letter to Dr Landy, Associate Professor Wilson commented on Mr Magor’s normal immunological screening. 

12. In his oral evidence, Mr Magor described the appointment with Associate Professor Wilson as unsatisfactory as he had to wait and search the hospital for Associate Professor Wilson for two hours, only to be told the consultation could have been conducted by video-conferencing.  As Associate Professor Wilson did not provide any examination findings in his report, suggesting that an examination was not conducted, a video-consultation would have resulted in the same opinion.

13. A repeat cardiac MRI was performed at the Alfred Hospital on 2 July 2015.  This shows a moderately dilated left ventricle with mild to moderate reduced left ventricular systolic function.  The area of hypokinesis has reduced but is still present and regarded as consistent with a small, possibly embolic, infarct.  The left ventricular ejection fraction (LVEF) had decreased to 43 per cent (that is, as his left ventricular end-diastolic volume of blood is 202 mls, with each beat his left ventricle ejects 87 mls).

14. Mr Magor requested that Dr Landy refer him to a cardiologist.  Dr Medley saw Mr Magor on 14 July 2015.  According to Dr Medley’s letterhead, he is a consultant physician who has a diploma in diagnostic ultrasound (echocardiography).  Dr Medley provided a very short report (Exhibit A2) stating that Mr Magor suffers from an underlying dilated cardiomyopathy which is an ongoing problem requiring continuous lifelong medical treatment.  Mr Magor told the Tribunal that on the day before the hearing he had been told for the first time by Dr Medley that the possibility of cardiac transplantation should be considered. 

15. Mr Magor lodged a new claim for DSP on 23 October 2015 as his dyspnoea had increased and his walking distance decreased to 20 metres on the flat.  He has also made contact with the Victor Chang Research Centre at St Vincent’s Hospital, Sydney in regard to DNA testing and typing as increasingly cardiomyopathy is being shown to be related to chromosomal abnormalities.  The cost of such testing is beyond Mr Magor’s means. 

16. Mr Magor has not seen Dr Landy since September 2014 or his general practitioner since June 2014.  In his evidence before the Tribunal he stated that the Ramipril has been increased to over 10 milligrams daily without any benefit.

    EVIDENCE BEFORE THE TRIBUNAL

17. The evidence given by Mr Magor and the documentary evidence, albeit very slim, provided to the Tribunal have been summarised under the BACKGROUND TO THE APPLICATION.  Mr Magor became very distressed during his oral evidence and had to stop to recover his breathing.  At times he clearly became tearful and emotionally upset and it would appear that he has entirely lost faith in his medical advisers.  As previously stated, the documentary evidence is very sparse and appears to relate to a refusal by various clinics to release test results and specialists’ opinions requested by the Secretary. 

18. The Health Professional Advisory Unit was contacted by the job capacity assessors (JCA) and they in turn telephoned Dr Landy and the then general practitioner on 21 February 2015 but did not receive any further information.

    Centrelink records related to Mr Magor

19. The records indicate that Mr Magor has had several periods during which he was on newstart allowance, these date back to 1999 when he was said to have had a lower limb disorder.  He has also received joint job search assistance and educational assistance between 2000 and 2012. 

    RELEVANT LEGISLATION

20. Social Security Act 1991 (the Act) provides:

    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  ...

21. The Tribunal is empowered to review the decision in accordance with clause 4(1) of Schedule 2 of the Social Security (Administration) Act 1999 (the Administration Act), which provides:

    4 Start day—early claim

    (1)If:

    (a)a person (other than a detained person) makes a claim for a relevant social security payment; and

    (b)the person is not, on the day on which the claim is made, qualified for the payment; and

    (c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and

    (d)the person becomes so qualified within that period;

    the claim is taken to be made on the first day on which the person is qualified for the social security payment.

22. As a result Mr Magor’s qualification for DSP has to be determined between 3 September 2014 and 3 December 2015. 

    SUBMISSIONS

23. Mr Magor provided written submissions summarising his medical history and the course of his application for DSP.  He contended that his cardiac condition was permanent, fully diagnosed, treated and stabilised within the confines of the medical opinion and treatment available to him. 

24. Ms Bramley for the Secretary conceded that on the evidence provided to the Tribunal Mr Magor would now attract 20 impairment points on the Impairment Tables based on his severe symptomatology.  However, at the date of his claim and within the 13 week period thereafter the medical evidence available to the Secretary did not support him being incapacitated for a period of two years.  The certificates have variously stated 3 to 12 months from Dr Landy, two weeks from Dr Phillips and certainly less than 3 months.  Doctors Keogh and Evans of his general practice group considered that he would show substantial improvement within 2 years.  As Mr Magor has more recently submitted a new claim for DSP, Ms Bramley undertook to ascertain whether appropriate expert opinion could be obtained. 

    TRIBUNAL’S DELIBERATIONS

25. Based on the evidence before the Tribunal it is quite clear that Mr Magor satisfies s 94(1)(a) of the Act in that he has a significant cardiac condition, whether it is myocarditis or dilated cardiomyopathy or some other diagnosis.  It is impossible for the Tribunal to assess the medical reports as the information provided is minimal.  The original diagnosis in 2013 of takotsubo cardiomyopathy seems extremely unlikely as to the Tribunal Member’s knowledge (as confirmed by the latest edition of Harrison’s Textbook of Internal Medicine) this condition is confined to middle-aged females. It is due to coronary artery spasm believed to be triggered by high emotional stress and resulting in muscle ischemia and necrosis of a certain pattern which on ventriculography resembles in shape a Japanese vase, the takotsubo. 

26. The other diagnoses considered are those of myocarditis and while there is some suggestion that there was evidence of inflammation or infection, the results of these tests have not been provided.  Viral myocarditis is the most common form of myocarditis.  The most recent diagnosis, dilated cardiomyopathy, is a diagnosis of exclusion, once the abovementioned conditions have been ruled out, including the most common cause of a cardiomyopathy ischaemic heart disease, alcohol abuse and genetic abnormalities.  The genetic or DNA abnormalities have not been excluded in Mr Magor’s case. 

27. It is quite clear that despite increasing the dose or Ramipril over a period of more than two years this has not been of benefit to Mr Magor in terms of his symptoms.  Other forms of what is considered appropriate treatment for such chronic cardiac failure, such as the insertion of pacemakers and cardiac transplantations, appear not to have been considered to date. 

28. The Tribunal agrees that the severity of his symptoms regardless of the diagnosis would appear to now attract an impairment rating of 20 points under the Impairment Tables.  However, certainly at the time he lodged his claim with Centrelink, and given the medical reports provided, the condition could not be considered fully diagnosed, treated and stabilised at that time. In fact, the contrary was the case, in that the majority of the medical practitioners’ stated his condition would improve to a considerable degree within two years.  Thus Mr Magor did not meet the requirements of s 94(1)(b) in the period under review.

29. The Tribunal has not had the opportunity to observe Mr Magor face-to-face as he was precluded from travelling to Melbourne because of the severity of his symptoms.  He has been provided with some advice as to steps that should be taken with respect to his pending new application lodged in October 2015. 

30. Based on the lack of information in general and the certification that his condition would not incapacitate him for two years and in the case of Dr Landy’s certification 12 months, the Tribunal affirms the decision under review.

I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member

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

Administrative Assistant

Dated 2 February 2016

Date of hearing	1 December 2015
Applicant	In person
Advocate for the Respondent	Ms Ailsa Bramley, Department of Human Services