Ozcan Celik and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2013] AATA 446
[2013] AATA 446
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/0181
Re
Ozcan Celik
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Senior Member J F Toohey
Date 28 June 2013 Place Sydney The Tribunal affirms the decision under review.
.........[sgd]...............................................................
Senior Member J F Toohey
CATCHWORDS
SOCIAL SECURITY – disability support pension – tinnitus and hearing loss, major depression and anxiety, wrist fractures – lumbar spine, left knee and left shoulder pain – whether conditions fully diagnosed, treated and stabilised – application determined “on the papers” – Tribunal not satisfied any conditions fully diagnosed, treated and stabilised – decision under review affirmed
LEGISLATION
Social Security Act 1991 s 94
Social Security (Administration) Act 1999 s 42 and Sch 2
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Senior Member J F Toohey
28 June 2013
BACKGROUND
Mr Ozcan Celik suffers from tinnitus and hearing loss, major depression and anxiety, fractures of his right wrist, and pain in his lumbar spine, left knee and left shoulder. He seeks review of a decision by the Social Security Appeals Tribunal (SSAT) that he does not qualify for disability support pension (DSP).
Mr Celik lodged his application for review on 13 January 2013. Shortly afterwards, he had to go overseas for family reasons. In early March 2013, he wrote to the Tribunal to say there had been a death in his family and he had no plans to return at that stage.
There followed a series of emails between the Tribunal and Mr Celik to clarify how he wished to have his application determined.
By email to the Tribunal on 26 March 2013, Mr Celik said he was prepared to have the Tribunal deal with his application “on the papers”, and he referred to an earlier email in which he had outlined why he disagreed with the decision of the SSAT. In a further email on 17 April 2013, Mr Celik confirmed that he wished for “the Registrar” to make a determination.
By email on 19 April 2013, Mr Celik confirmed that he wished to have his application “determined on the papers at your earliest convenience”.
I am satisfied that Mr Celik has provided all the material that he considers relevant to the review, and that he understands that a review “on the papers” will result in a final determination of his application. I am also satisfied that the issues for determination on the review can be adequately determined in the absence of the parties.
QUALIFICATION FOR DSP
To qualify for DSP, Mr Celik must satisfy the criteria in s 94 of the Social Security Act1991 (the Act). In particular, he must have:
(i)a physical, intellectual or psychiatric impairment, or impairments, which are rated at 20 or more points according to the Impairment Tables in the Act; and
(ii)a continuing inability to work as defined in the Act.
Mr Celik lodged his application to DSP on 13 August 2012. To qualify for DSP, he had to satisfy these criteria on that date or within 13 weeks: s 42 and Sch 2 of the Social Security (Administration) Act 1999. That means that the relevant period in his case is from 13 August 2012 to 12 November 2012.
The Impairment Tables
The Impairment Tables are used to assess the impact of impairment on a person’s functional capacity. For applications for DSP made after 1 January 2012, the Tables are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011. Clause 6 of the Determination sets out how the Tables are to be applied.
An impairment rating can only be assigned if:
(a)the condition causing that impairment is permanent; and
(b)the impairment is more likely than not to persist for more than 2 years.
A condition is permanent for the purposes of the Impairment Tables if it has been fully diagnosed by an appropriately qualified medical practitioner; and it has been fully treated and fully stabilised; and it is more likely than not, in light of available evidence, to persist for more than 2 years: cl 6(4).
In determining whether a condition has been fully diagnosed and fully treated, the following must be considered:
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
A condition is fully stabilised if:
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i)significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Reasonable treatment means treatment that:
(a)is available at a location reasonably accessible to the person; and
(b)is at a reasonable cost; and
(c)can reliably be expected to result in a substantial improvement in functional capacity; and
(d)is regularly undertaken or performed; and
(e)has a high success rate; and
(f)carries a low risk to the person.
Continuing inability to work
The meaning of continuing inability to work is set out in subss 94(2) and (5) of the Act.
The impairment must be, of itself, sufficient to prevent the person from doing any work independently of a program of support within the next 2 years and:
(i)of itself be sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii)if it does not prevent the person from undertaking a training activity, such activity is unlikely, because of the impairment, to enable the person to do any work independently of a program of support within the next 2 years: s 94(2).
Unless a person has a severe impairment, he or she must also have actively participated in a program of support which is defined in s 94(5) of the Act. A severe impairment is one which rates 20 points of more under a single impairment table: s 94(3B).
THE EVIDENCE ABOUT MR CELIK’S MEDICAL CONDITIONS
Centrelink accepts, and I am satisfied, that each of Mr Celik’s medical conditions is an impairment within the meaning of the Act. However, Centrelink say that none is fully diagnosed, treated and stabilised, and so none can be assigned a rating on the Impairment Tables.
Medical evidence concerning Mr Celik’s conditions is found in the following reports from his doctors:
·Dr Andrew Salmon, ear nose and throat head and neck surgeon, 12 April 2006;
·Dr Bruce Black, ear surgeon, 12 April 2006;
·Dr P Duffy, radiologist, 13 April 2006;
·a Mental Health Care Plan prepared by Dr Ying Chiu, general practitioner on 10 December 2010;
·a referral from Dr Chiu to Sue Fulford, 10 December 2010;
·a referral from Dr Chiu to Dr Maxwell Katz, psychiatrist, 27 January 2011;
·Dr Brent McMonagle, otorhinolaryngologist, 17 May 2011 and 7 June 2011;
·Dr Dominic Collis, radiologist, 22 August 2012;
·Dr John Williams, general practitioner, 29 August 2012 (report submitted on Centrelink form with Mr Celik’s claim for DSP);
·Dr David Pohl, ear nose and throat surgeon, 4 October 2012;
·Dr Alison Green, radiologist, 5 October 2012; and
·Dr Jay Ives, radiologist, 30 October 2012.
Other relevant documents are:
·Mr Celik’s claim for DSP; and
·a Job Capacity Assessment report prepared for Centrelink by a psychologist and a rehabilitation counsellor, 4 September 2012.
I will consider each of Mr Celik’s medical conditions in turn.
Tinnitus and hearing loss
Although it is not clear on the evidence when Mr Celik’s tinnitus and hearing loss was diagnosed, it is clear from the medical reports that it was well before the relevant period.
As to whether Mr Celik’s tinnitus and hearing loss was fully treated and stabilised during the relevant period, Dr McMonagle reports that Mr Celik underwent surgery in Turkey in 1983 without success, and further surgery in Brisbane in 2004 which worsened his condition.
On 7 June 2011, Dr McMonagle reported that he had discussed treatment options with Mr Celik including no treatment, a standard air conduction aid, a bone anchored hearing aid and, possibly, a vibrant sound bridge in plant or a third middle ear operation to reconstruct the obstacles. Dr McMonagle outlined why he did not favour some of these options but said he thought a standard air conduction aid would improve Mr Celik’s hearing to some degree, and a bone anchored hearing aid would be his preferred option but Mr Celik was “quite adamant” that he was not interested. Dr McMonagle thought a trial would be the best way to see whether this would improve things or not.
Dr Pohl reported to Dr Williams on 4 October 2012 that there had been “a significant deterioration” in the hearing loss in both Mr Celik’s ears; he had arranged an MRI scan and electrocochleogram for Mr Celik, and commenced him on Dithiazide and salt restriction, and he would write again with Mr Celik’s “further progress”.
Centrelink submits that, based on the available medical evidence, Mr Celik’s tinnitus and hearing loss was not fully treated or stabilised at the relevant time because:
·there was further treatment that could improve Mr Celik’s symptoms, in particular the use of a hearing aid;
·he had only recently commenced treatment with Dithiazide and salt restriction which might improve his symptoms; and
·as there was evidence that further improvement could be reached with the suggested treatments, his condition could not be said to have stabilised.
Mr Celik disagrees. He refers to a prescription by Dr Pohl on 25 January 2013 for Flunarizine, and advice from the Therapeutic Goods Administration on 17 January 2013 to Dr Pohl, granting approval to supply the drug to Mr Celik on the ground that “there is no alternative therapy currently supplied in Australia”. The letter includes advice that:
The proposed clinical use of this drug must be regarded both medico-legally and ethically as experimental. No assurance can be given as to the quality, safety and efficacy in the proposed usage.
As I understand it, the letter from the Therapeutic Goods Administration establishes only that no other alternative drug therapy is currently supplied in Australia. Even if it should be read as establishing that no other form of treatment was left to Mr Celik, it would not assist him. What the prescription and letter show is that Mr Celik did not commence this form of treatment until January 2013 at the earliest, well after the relevant period.
It is not clear why Mr Celik was not interested in either of the treatment options suggested by Dr McMonagle in June 2011. Dr McMonagle does not say what his reasons were, and Mr Celik has not explained his reasons. A trial as suggested by Dr McMonagle appears to be reasonable.
As it appears that further, reasonable treatment which he had not undertaken was available to him during the relevant period, I am not satisfied that Mr Celik has undertaken reasonable treatment for this condition and that any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling him to undertake work in the next 2 years.
Based on the evidence before me, I agree with Centrelink that Mr Celik’s tinnitus and hearing loss could not be considered fully treated or stabilised at the relevant time. It follows that it cannot be assigned a rating on the Impairment Tables.
Major depression and anxiety
A Mental Health Care Plan prepared by Dr Chiu in December 2010 refers to Mr Celik’s history of depressive symptoms, and depression “14 years ago”. It refers to him being currently treated with Lexapro (an antidepressant). The referral to Ms Fulford refers to him having suffered depression since 1997 when his father died.
It appears, from the referral, that Ms Fulford may be a clinical psychologist or counsellor. However, there is no report from her and nor is there any information about what diagnosis was made, or treatment provided, if any, by Dr Katz after Mr Celik was referred to him in January 2011.
Dr Williams reported to Centrelink in August 2012 that Mr Celik was suffering from major depression and anxiety, that he was being treated with Efexor, and Lovan “sometimes”, that no significant improvement was expected and that it had a moderate impact on his ability to function.
Centrelink submits that Mr Celik’s major depression and anxiety cannot be considered fully diagnosed because it has not been assessed by an appropriately qualified medical practitioner who, in this case, Centrelink says would be a clinical psychologist or a psychiatrist. I accept that submission. It follows that Mr Celik’s major depression and anxiety cannot be assigned a rating on the impairment tables.
Even if I could be satisfied that Mr Celik’s condition was fully diagnosed, treated and stabilised, there is very limited information about its effect on his ability to function. Dr Williams describes it as having a “moderate” impact. Table 5 concerns Mental Health Function and sets out, for ratings of mild, moderate, severe and extreme impact, activities with which a person has difficulty. Even if I could be satisfied that Mr Celik’s major depression and anxiety should be rated moderate, it would attract at most 10 points.
Fractures of the right wrist
Dr Collis noted an old injury (or injuries) to Mr Celik’s right wrist in his report on 22 August 2012. Dr Williams reported on 29 August 2012 that Mr Celik’s condition was likely to persist for more than 24 months and remain unchanged. He noted it was treated with analgesia. He made no reference to future planned treatment.
According to the Job Capacity Assessment Report, Mr Celik fractured his wrist as a child. He reported that he experienced persistent pain in his right (dominant) wrist that was increasing in severity, that he was unable to perform any heavy lifting, and that after performing physical tasks, the pain woke him at night.
The Job Capacity Assessor considered that Mr Celik’s fracture was fully diagnosed based on Dr Collis report in 22 August 2012 but “in the absence of any evidence to verify his symptoms or any additional treatments (physiotherapy etc) it could not be considered fully treated and stabilised.”
There is nothing to suggest that Mr Celik does not feel the pain that he described to the Job Capacity Assessor. However, it does not appear that he has even considered treatment options other than analgesia. I am not satisfied, on the evidence before me, that this condition was fully treated and stabilised during the relevant period.
Even if this long-standing condition could reasonably be considered fully treated and stabilised at the relevant period, the only evidence of the functional impact of this condition is Dr Williams’ note on the Centrelink form “pain to lift and carry with right”, and the note of what Mr Celik told the Job Capacity Assessor.
Table 2 concerns Upper Limb Function. It assigns ratings according to the mild, moderate, severe or extreme functional impact of the condition on activities using hands or arms. In each case, a person must have difficulty with the most of the listed activities.
Even allowing that Mr Celik’s wrist fractures were fully treated and stabilised during the relevant period, I cannot be satisfied, on the limited information before me, that his condition could be rated as having a mild functional impact, let alone any more serious impact. It follows that this condition must be rated NIL points.
Lumbar spine pain
Mr Celik has suffered from lumbar spine pain since around 2007 or 2008. Dr Collis noted in August 2012 that his spine was “held in slight right lateral flexion” and there was “minimal narrowing of the right side of the L2/3 and 3/4 disc spaces”. No other abnormalities were detected.
It is not clear that Dr Collis’ report amounts to a diagnosis of lumbar spine pain but Centrelink does not dispute that Mr Celik’s lumbar spine pain was fully diagnosed from the time of his report.
Dr Williams reported that Mr Celik’s lumbar spine pain was treated with analgesia and stretching exercises, that significant improvement was not expected, and that it had a moderate impact on his ability to function.
Centrelink submits that, based on the medical evidence, Mr Celik’s lumbar spine pain was not fully treated or stabilised at the relevant period because:
there is further treatment that could improve the symptoms of the condition, most notably physiotherapy or pain management;
there is an option of [Mr Celik] seeing a specialist in order to optimally treat the condition; and
the condition could not be said to have stabilised as further improvement may be reached if the treatments available are utilised.
The basis for each of these contentions is not clear from the evidence before me. However, I accept that Mr Celik has undergone minimal, conservative treatment, and there is nothing to suggest that physiotherapy or pain management would not be reasonable treatment.
I cannot be satisfied, on the evidence before me, that Mr Celik has undertaken reasonable treatment for this condition and that any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling him to undertake work in the next 2 years; or, that he has not undertaken reasonable treatment for the condition and significant functional improvement in the next 2 years is not expected, even with reasonable treatment, or that there is a medical or other compelling reason for him not to undertake reasonable treatment.
It follows that Mr Celik’s lumbar spine pain was not fully treated and stabilised during the relevant period and cannot be assigned an impairment rating.
Left knee pain
According to the Job Capacity Assessment report, Mr Celik has suffered left knee pain over the past 20 years associated with playing soccer.
Dr Collis detected no abnormality in either of Mr Celik’s knees. Dr Williams reported that his left knee pain was treated with analgesia and exercises, that significant improvement was not expected, and that it had a mild to moderate impact on his ability to function.
Dr Ives performed an MRI of Mr Celik’s left knee in October 2012 to investigate the cause of his pain. He noted “early patella femoral compartment chondropathy” and “posteriomedial bursal effusions ?significance [sic]”. He did not suggest any treatment.
Centrelink submits that, based on the available medical evidence, Mr Celik’s knee pain has not been diagnosed; at the time of the claim there were further examinations to be undertaken, in particular an ultrasound of the knee; there were further options available in order to treat the condition, notably physiotherapy and referral to a specialist; and there was treatment available to Mr Celik which he had not yet utilised.
I am not satisfied that Mr Celik’s left knee pain was fully diagnosed during the relevant period. It follows that his condition cannot be assigned a rating on the impairment tables. The basis for each of the other contentions is not clear from the evidence before me.
Left shoulder pain
According to the Job Capacity Assessment report, Mr Celik told the assessor that he has had pain since the mid-1980s when he broke his collarbone.
Dr Collis reported in August 2012 that an x-ray of Mr Celik’s left clavicle showed an “old comminuted fracture involving the mid to lateral third of the clavicular shaft” which had “united with a small step deformity”. X-ray of his left shoulder showed an “old post traumatic deformity” involving the clavicle. I am satisfied his condition was fully diagnosed at this time.
Dr Williams reported that Mr Celik’s left shoulder pain was treated with exercises, that significant improvement was not expected, and that it had a moderate impact on his ability to function.
Centrelink submits that, based on the available medical evidence, Mr Celik’s left shoulder pain was not fully treated or stabilised at the relevant time because:
·there had been no verification of the symptoms of the condition;
·there were further options available in order to treat the condition, notably physiotherapy and referral to a specialist; and
·there was further treatment available to the applicant which had not yet been utilised.
Other than physiotherapy and referral to a specialist, is not clear what “further options” were available to treat Mr Celik’s condition, and nor is it clear what “further treatment was available to him which had not yet been utilised”.
However, given the limited evidence before me, I cannot be satisfied that Mr Celik has undertaken reasonable treatment for the condition and that any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling him to undertake work in the next 2 years; or, that he has not undertaken reasonable treatment for the condition and significant functional improvement in the next 2 years is not expected, even with reasonable treatment, or that there is a medical or other compelling reason for him not to undertake reasonable treatment.
As I am not satisfied that Mr Celik’s left shoulder pain was fully treated and stabilised during the relevant period, it follows that this condition cannot be assigned a rating on the impairment tables.
CONCLUSION
For the reasons set out above, I find that Mr Celik did not have an impairment rating 20 or more points according to the Impairment Tables in the Act during the relevant period. It follows that he did not qualify for DSP at that time, and his application must be refused.
Because am not satisfied that Mr Celik’s impairments rated 20 points or more, it is not necessary to decide whether he also had a continuing inability to work.
I affirm the decision under review.
I certify that the preceding 65 (sixty -five) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey. .......[sgd].................................................................
Associate
Dated 28 June 2013
Date(s) of hearing 20 June 2013 Applicant In person Solicitors for the Respondent Department of Human Services, Program Litigation and Review Branch
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