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

[2017] AATA 579

Oklobdzija and Secretary, Department of Social Services (Social services second review) [2017] AATA 579 (2 May 2017)

Division:GENERAL DIVISION

File Number:           2016/1089

Re:Dragoslav Oklobdzija

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Miss E A Shanahan, Member

Date:2 May 2017

Place:Melbourne

The Tribunal sets aside the decision under review and in substitution determines that Mr Oklobdzija satisfies all the requirements of s 94 of the Social Security Act 1991 and thereby qualified for the Disability Support Pension as at the date of his claim on 25 June 2015.

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

Miss E A Shanahan, Member

SOCIAL SECURITY – disability support pension – primary pulmonary hypertension – gross cardiomegaly and right heart failure – oxygen dependant – condition attracts an impairment rating of 20 or more points - decision set aside and substituted

Legislation
Social Security Act 1991
Social Security (Administration) Act 1999

Secondary Materials

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 May 2017

1. Mr Oklobdzija lodged a claim for disability support pension (DSP) on 25 June 2015.  His claim was accompanied by a report from his general practitioner Dr Hermiz, confirming the diagnosis of pulmonary hypertension with a date of onset of 2010 but failing to address the question as to Mr Oklobdzija’s ability to function.

2. Mr Oklobdzija had ceased work on 29 November 2013.  The claim was rejected on 17 August 2015 and this rejection was affirmed by an authorised review officer (ARO) on 28 October 2015. Mr Oklobdzija applied to the Administrative Appeals Tribunal, Social Services and Child Support Division (AAT Tier 1) on 6 November for a review of decision.  The AAT Tier 1 found that Mr Oklobdzija in accordance with Table 1 of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) only attracted an impairment rating of 10 points.  The AAT found that he suffered from shortness of breath, fatigue and ankle swelling but was able to perform most of the activities of daily living, slept using an incubator (sic) to ensure he kept breathing and had available oxygen cylinders that he could take with him when he went outside. 

3. Mr Oklobdzija lodged an application for further review of the decision by the General Division of the AAT on 1 March 2016.

4. Mr Oklobdzija was too unwell to attend in person and gave his evidence by telephone.  The Secretary, Department of Social Services (the Secretary) was represented by Ms Ailsa Bramley and had provided the Tribunal with the s 37 documents (the T‑documents).  Mr Oklobdzija tendered a more recent report from Associate Professor David Smallwood dated 9 August 2016. 

   BACKGROUND TO THE APPLICATION

5. Mr Oklobdzija had worked as an inventory controller or office assistant for Xerox for nine years but was made redundant in late 2013.  He had been taking increasing amounts of leave prior to his redundancy because of increasing fatigue and shortness of breath.

6. Mr Oklobdzija first noted symptoms in 2008, these being progressive shortness of breath and fatigue.  He was seen by several consultants including a cardiologist and a respiratory physician in 2010 and a diagnosis of pulmonary hypertension with right heart failure was made.  Mr Oklobdzija was noted to be cyanosed and had finger clubbing at the time of his first presentation. 

7. Despite treatment, Mr Oklobdzija’s symptoms have progressively deteriorated. He finds the tasks of everyday living increasingly difficult.  Some six years ago he returned home to live with his mother who assists him in that she does all the shopping, cooking, house cleaning and makes the beds.  Mr Oklobdzija is able to shower but does not do so every day. He is able to dress himself but has been instructed to avoid lifting and not to perform shopping. 

8. Since June 2015 Mr Oklobdzija has experienced frequent bouts of palpitations associated with increased shortness of breath and dizziness.  He has been taken to hospital on numerous occasions when suffering one of these episodes. These have been diagnosed as paroxysmal atrial tachycardia associated with hypotension (low systemic blood pressure).  In November 2016 he underwent radiofrequency ablation of an ectopic site of electrical activity in his right atrium. This procedure has been partially successful.

9. Mr Oklobdzija attends the Respiratory Clinic at the Royal Melbourne Hospital every three to six months and has done so since 2011.  He undergoes lung function testing and CT scanning and has been referred to the Alfred Hospital for consideration of lung transplantation.  Mr Oklobdzija’s treatment is directed at dilating his pulmonary artery circulation to reduce the pressure in the pulmonary artery, right atrium and right ventricle.  He has been taking a combination of vasodilators in the form Bosantoin and Viagra. Mr Oklobdzija is also fully warfarinised, meaning he is anticoagulated to prevent thrombosis, and any emboli although investigations have ruled out recurrent pulmonary emboli as a cause of his pulmonary hypertension. 

10. Since Mr Oklobdzija was hospitalised in June 2015 he has been taking frusemide (Lasix) 80 mgs in the morning and 40 mgs at lunchtime and spirolactone 25 mgs daily in order to control marked peripheral oedema that is secondary to his right heart failure.

11. Mr Oklobdzija was apparently trialled with an anti-arrhythmic drug, namely a beta blocker in order to achieve control of the paroxysmal atrial tachycardia, however, this resulted in a drop in his systemic blood pressure to such a level that he developed dizziness due to postural hypotension, with his blood pressure falling to below 80 systolic when he stood up. 

12. Mr Oklobdzija had been under care of Associate Professor David Smallwood for several years but Associate Professor Smallwood has recently reduced his clinical work in favour of research activities. Mr Oklobdzija is now under the care of a different respiratory physician who he had only seen him once at the time of the hearing. 

13. Following his application for DSP, Mr Oklobdzija was assessed by a job capacity assessor (JCA) on 14 August 2015. The assessors were a psychologist and an occupational therapist.  They recommended an impairment rating of 10 points based on Table 1 of the Impairment Tables.  This was despite the fact that they stated his medical conditions prevented him from using public transport without substantial assistance, which is one of the descriptors attracting an impairment rating of 20 points.  The JCA report predicted that Mr Oklobdzija’s baseline work capacity was 8 to 14 hours, which with intervention would increase within two years to 15 to 22 hours per week with the work recommended being that of an office/clerical assistant, telephone operator or customer service assistant. 

14. The AAT Tier 1 decision essentially adopted the rating recommended by the JCA. 

    RELEVANT LEGISLATION

15. The relevant legislation attracted by Mr Oklobdzija’s claim is s 94 of the Social Security Act 1991 (the Act) which 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   ...

    …

    (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.

    TRIBUNAL’S DELIBERATIONS

16. At the hearing, Mr Oklobdzija described his current limitations, his past investigation, and his ongoing three to six monthly review at the Royal Melbourne Hospital which involved frequent CT scans, echocardiograms, lung function tests and ECGs (electrocardiograms).  From this, it became obvious to the Tribunal that the medical information provided was defective to the extent that it represented a miniscule amount of what was available. 

17. The Tribunal had taken note of the report of Associate Professor David Smallwood, written in support of Mr Oklobdzija’s application for the DSP which stated that Mr Oklobdzija’s condition was incurable. The report noted that it was manageable in some patients with drug therapy, but that Mr Oklobdzija had what Associate Professor Smallwood described as recalcitrant severe pulmonary arterial hypertension.  Associate Professor Smallwood confirmed that Mr Oklobdzija was using oxygen therapy whilst walking, resting and sleeping since 2011 and that he had an oxygen concentrator for use at night. On a monthly basis he used the eight portable cylinders for which the Medicare scheme had given approval. 

18. The Tribunal adjourned the hearing, having elected to seek more medical data and directed the Secretary to obtain the full medical history of Mr Oklobdzija from the Royal Melbourne Hospital.  While it was noted that Mr Oklobdzija had on many occasions attended Northern Hospital those records were not requested.

19. The Tribunal received the Royal Melbourne Hospital’s complete record relating to Mr Oklobdzija on a compact disc.  These records covered a period from 1993 until late 2016.  In all there were just over 860 A4 pages of data in electronic form. The earlier period related to a knee injury, which is not relevant to this claim. Mr Oklobdzija has, however, been investigated, treated and reviewed in relation to his primary pulmonary hypertension since September 2009. 

20. I, as the Tribunal Member and in view of my medical qualifications, particularly in the area of cardiothoracic surgery, have summarised the records. I provided a short analysis of the data therein and an interpretation of these records. This was provided to the Secretary.

21. In summary Mr Oklobdzija has primary that is cause unknown, pulmonary hypertension for which the only definitive treatment available to him is lung transplantation.  He presents with severe right heart failure and recurrent, despite radio frequency ablation, paroxysmal atrial tachycardia due to an abnormal focus of electro-cardiac activity in his right atrium.  In his most recent investigations his right ventricular systolic pressure and that of the pulmonary artery is greater than his systemic arterial pressure. The grossly enlarged right atrium and right ventricle are compressing the left sided chambers of his heart.  As a result his left ventricular function has diminished to an ejection fraction level of 45 per cent, normal being greater than 55 per cent.

22. In early June 2015 Mr Oklobdzija’s admission to hospital was for gross right heart failure with impaired liver function due to liver congestion. He required intravenous diuretic therapy. This eventually resulted in massive diuresis over a period of days with a weight loss of 20 kilograms.  He was placed on a restricted fluid intake and is now limited to 1.5 litres of fluid per day. As a result of this reduction in fluid intake and therefore renal output he has developed gout which is controlled with medication.

23. Of greater importance is the data that on presentation in 2010, Mr Oklobdzija had evidence of right heart failure, was cyanosed and clubbed and could only walk 20 metres without a significant fall in his oxygen saturation.  In 2010 and as recorded thereafter the partial pressure of oxygen in his blood varied between 22 mmHg to 51 mmHg as opposed to a normal level of 75 mmHg to 100 mmHg.

24. Since 2011 Mr Oklobdzija has qualified for the provision of an air concentrator, which increases the oxygen content above the normal 20 per cent, and oxygen in the form of portable cylinders on the basis of his lung function tests and blood gases.  His diffusing capacity, that measures the exchange of oxygen and expulsion of carbon dioxide across the alveolar walls, is markedly reduced to a level of 8 compared with the normal of greater than 30.  While at the time of presentation in 2010 Mr Oklobdzija’s heart was not enlarged radiologically, he is now reported to have gross cardiomegaly due to right ventricular and right atrial enlargement.

25. It is clear that since 2011 Mr Oklobdzija has been using eight portable cylinders of oxygen per month.  This has been accepted and paid for by Medicare on the basis of Mr Oklobdzija’s blood gas estimations. It is his evidence that he never leaves the house without a portable oxygen cylinder.

26. Given the radiological changes documented in June 2015 and the failed radio-frequency ablation of the ectopic focus of electrical activity resulting in paroxysmal atrial tachycardia, it would seem more likely that Mr Oklobdzija would require a heart-lung transplant rather than a lung transplant.  The Tribunal does not have any further follow up from the Alfred Hospital, Lung Transplant Unit in terms of Mr Oklobdzija’s assessment or whether or not he has been placed on the waiting list for such a transplant.

27. The Tribunal’s summary and interpretation of the Royal Melbourne Hospital records were provided to the Secretary who, after due consideration, conceded that Mr Oklobdzija qualified for the DSP at the time his claim was lodged.

28. In accordance with the Secretary’s concession, the Tribunal finds that Mr Oklobdzija had at least a 20 impairment point rating and more probably a 30 point rating, in that the Table 1 states that the 30 points rating includes people who require oxygen treatment giving the example of the use of an oxygen concentrator during the day or to move around. Mr Oklobdzija uses an oxygen concentrator at night and whenever he leaves the house he does so with a portable oxygen cylinder providing oxygen and has done so since 2011. The Tribunal further accepts that the Applicant satisfied the requirements of s 94(1)(c) of the Act. The Tribunal therefore confirms that the decision under review is set aside and substituted with the decision that at the time of lodgement of his claim Mr Oklobdzija was qualified for the DSP

29.      

30.     I certify that the preceding 28 (twenty-eight) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member

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

Associate

Dated              2 May 2017

Date of hearing	16 December 2017
Applicant	In person
Advocate for the Respondent	Ms Ailsa Bramley
Solicitors for the Respondent	Department of Human Services, Freedom of Information and Litigation Branch