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

[2018] AATA 4477

Popovski and Secretary, Department of Social Services (Social services second review) [2018] AATA 4477 (4 December 2018)

Division:GENERAL DIVISION

File Number(s):      2017/5083

Re:Vlado Popovski

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:4 December 2018

Place:Sydney

The decision under review is affirmed. 

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

Senior Member A Poljak

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether the applicant has physical, intellectual or psychiatric impairments – whether the applicant's conditions were fully diagnosed, treated and stabilised – whether the impairments attract 20 points or more – Impairment Tables – decision affirmed

LEGISLATION

Social Security (Administration) Act 1999 (Cth) s 42, Sch 2

Social Security Act 1991 (Cth) s 94

SECONDARY MATERIALS

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

REASONS FOR DECISION

Senior Member A Poljak

4 December 2018

1. Vlado Popovski, the applicant, seeks review of a decision made by the Social Security and Child Support Division of this Administrative Appeals Tribunal (“SSCSD”) on 3 August 2017 (“decision under review”). The SSCSD affirmed a decision made by the Department of Social Services (“the Department”) refusing the applicant’s claim for the disability support pension (“DSP”) which was lodged on 18 November 2016.

2. The applicant’s claim for DSP was rejected on the basis that he did not satisfy the eligibility criteria set out in s 94 of the Social Security Act 1991 (Cth) (“the Act”). Section 94 of the Act provides that to qualify for payment, a person must have a physical, intellectual or psychiatric impairment, or impairments, which rate 20 or more points according to the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Impairment Tables”); and a continuing inability to work as defined in the Act.

3. For the applicant to qualify for DSP, he had to satisfy these criteria on 18 November 2016, when he applied for the DSP, or within the following 13 weeks, that is, by 17 February 2017 pursuant to s 42 and Schedule 2 of the Social Security (Administration) Act 1999 (Cth) (“the relevant period”).

4. The Secretary contends that the medical evidence does not support a finding that the applicant was qualified for DSP during the relevant period.

5. The Secretary accepts that the applicant suffered from a number of conditions during the relevant period namely, impediments due to back pain, shoulder pain, carpal tunnel syndrome, depression, hypertension, cardiac disease, vertigo and asthma. He therefore satisfies s 94(1)(a) of the Act. The issues to be determined in these proceedings are whether the applicant’s conditions rate 20 or more points under the Impairment Tables and whether he has a continuing inability to work as defined in the Act.

   IMPAIRMENT TABLES

6. The first issue for determination in these proceedings is whether the applicant’s conditions were fully diagnosed, treated and stabilised during the relevant period, and if so, what rating may be assigned for functional impairment in accordance with the Impairment Tables.

7. The Impairment Tables include rules for assigning ratings to determine the level of functional impact of impairment. Impairment is defined in s 3 to mean “a loss of functional capacity affecting a person’s ability to work, that results from the person’s condition”. 

8. Subsections 6(3) and 6(4) provide that impairment can only be given a rating on the Impairment Tables if the condition is considered permanent. A condition is permanent if it has been fully diagnosed by an appropriately qualified medical practitioner; it has been fully treated; fully stabilised; and it will more likely than not, persist for more than two years.

9. In assessing whether a condition is fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, subsection 6(5) instructs that a decision- maker must consider whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred; and whether treatment is still continuing or is planned in the next two years.

10. For the purposes of the Impairment Tables, subsection 6(6) defines fully stabilised to mean:

    (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 two 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 two 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.

11. Reasonable treatment is defined in subsection 6(7) as 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.

    Mental Health Condition – Depression

12. I accept that the applicant’s mental health (depression) was fully diagnosed during the relevant period however I am not satisfied on the available evidence that during the relevant period this condition was fully treated and stabilised. My reasons for reaching this conclusion are as follows.

13. In a report dated 17 August 2015, consultant psychiatrist Dr Stevans reports his initial consultation with the applicant and diagnoses him with Major Depression. He notes symptoms of depression from 1995, worsening in the last three years due to the applicant’s employment termination. He knows that the applicant had seen a psychiatrist for his WorkCover claim but had never had outpatient care and had never attended psychotherapy. He details a management plan including psychoeducation, medication and psychotherapy.

14. In a report dated 12 May 2017 Dr Stevans revises his diagnosis to “major depression with partial response to pharmacotherapy”. Under the heading Management Plan, it is noted “he has been stable for two years or more but his medication was recently changed due to side-effects. His response has been sub-optimal due to multiple factors but he remained stable however and has not deteriorated. It is unlikely that he will make significant improvements enabling him to get back into the workforce in the foreseeable future”. It is also noted in the management plan that the applicant is to, “continue Avanza” and “await further clinical response”; and “continue CBT but increase frequency if possible to fortnightly”.

15. In the most recent report of Dr Stevans dated 6 November 2017, the applicant’s treatment history for his mental health condition is summarised. It is noted that the applicant was first referred by his general practitioner in August 2015 and in the three years prior; the applicant’s depression was managed by his general practitioner. Dr Stevans records that the applicant “has developed Major Depression since 2012 when he lost his job owing to physical illness and lack of recovery despite treatment”. He notes that “there has been marginal improvement in the last two years of treatment owing to multiple external factors including his heart attack in March 2016”. Dr Stevans outlines in his report that the applicant’s “treatment was complicated”. He advises that when the applicant started taking Lexapro, he suffered from significant side-effects and hence his treatment adherence was erratic. He notes that when he saw the applicant in November 2016, the applicant had not taken his medication for two months and that his depressive symptoms had continued with significant intensity. The applicant was switched to Avanza in March 2017. Dr Stevans reports that since that time the applicant’s depressive symptoms have not significantly improved but he has reached a level of stability and had not worsened.

16. In a report dated 23 August 2017, Dr Kuzmanovski, the applicant’s general practitioner, assesses the applicant’s functional impairment as a result of depression. In a report dated 27 October 2017, he opines that the applicant’s medical condition was fully treated and stabilised as at 18 November 2016. At hearing, Dr Kuzmanovski stated that nothing much had changed and that the applicant’s condition was the same as it had been at the date of his DSP claim in November 2016. He said that he had seen the applicant for a very long period of time and that he sent the applicant to a psychiatrist but “never expected changes could be made”. He said that the psychiatrist did many things but eventually he went back to his original medication. Dr Kuzmanovski did confirm that the current medication the applicant was taking was helping. In regards to psychotherapy, the applicant underwent and completed six sessions with a psychologist by 12 September 2016.

17. Dr Stevans states in his report dated 6 November 2017:

    “I am aware that he hadn’t seen a specialist psychiatrist until August 2015. His GP, Dr Kuzmanovski had been managing his condition for the first three years of the onset of symptoms. I am aware that Dr Kuzmanovski was of the opinion that his condition was fully treated and stabilised at that point in time and this might have been the case given his long-standing symptoms (four years at that point) however, according to my notes, he wasn’t on medication for two months and his symptoms were present at that point. His adherence to medication was also unclear given the side-effects therefore affecting his treatment outcome at that point in time”. [Emphasis added]

18. Dr Stevans ultimately opines that the applicant “may have reached maximal medical improvement and remains unfit for work owing to his physical and mental health conditions”; however I note that this was as at 6 November 2017, which is outside of the relevant period. This does not assist the applicant in these proceedings; this evidence would be relevant for any future claims for DSP.

19. Based on the available medical evidence I am not satisfied that during the relevant period, the applicant’s condition of depression was fully treated and stabilised. Particularly given that, as at May 2017, the applicant was still undergoing active treatment. His treating psychiatrist had recommended increasing psychotherapy and the applicant had recently changed medication (March 2017) and was being monitored for clinical response. It is plain from the most recent report of Dr Stevans in November 2017, that the applicant’s condition had reached a level of stability as a result of this medication change in March 2017. This is outside of the relevant period.

20. Accordingly, no impairment rating may be applied to this condition.

    Back pain

21. The Secretary accepts, and I agree, that the applicant’s back pain was fully diagnosed, treated and stabilised during the relevant period. The issue in contention is the proper impairment rating to be assigned in respect of the impairment arising from this condition.

22. The applicant has a long medical history relating to his back condition. Medical imaging undertaken in 1996 shows degenerative changes in the applicant’s cervical spine. In a report dated 3 July 2003, Dr Chris Oates, consultant occupational physician, reported on examination of the applicant’s cervical spine “flexion full range, extension full, lateral flexion three quarters, rotation full”. Dr Oates opined that the applicant’s neck pain probably arose from “cervical degenerative disease”. In 2009, the applicant underwent a CT scan of his lumbar spine. In a report dated 25 February 2009, it is noted that the CT scan revealed “spondylosis with disc bulges at L3/4 and L4/5. Potential irritation of the existing left L3 nerve root by disc material”. On 11 October 2010, an MRI of the lumbar spine revealed a “right foraminal/far lateral disc protrusion at L4/5 compressing the right L4 nerve root” and “a small left foraminal/far lateral disc protrusion at L3/4 without significant neural compression”. Neurosurgeon Dr Kohan records in his report dated 21 October 2010, that the applicant “presents with long-standing back pain over the past seven years” and opines that the applicant is suffering from “L5 radiculopathy secondary to L4/5 disc prolapse”. Dr Kohan details in his report recommended treatment and options to help the applicant with his pain management. In a report dated 15 November 2012, Dr Curran, consultant physician, records that on examination the applicant had “quite marked lumbar spasm resulting in very poor movements in all directions” and that the applicant “appeared to be in quite severe pain on attempting lumbar flexion and he couldn’t get his hands below his knees”. In a report dated 13 November 2013, Dr Guirgis, a consultant orthopaedic surgeon, notes that the applicant suffered a back injury at work in 2009 and that his employment was terminated in 2012 due to the injury. Dr Guirgis confirmed that the applicant had a lowered range of movement in both the cervical and lumbar spine and that the conditions are medically stable and that further recovery or deterioration was not anticipated.

23. A Health Professional Advisory Unit Opinion, completed by an exercise physiologist, dated 6 April 2017, concluded that the applicant’s condition can be considered fully diagnosed, treated and stabilised. It was also noted that “the condition remains assessed as equivalent at most to a 10 point rating”.

24. In the decision under review, it is noted at paragraph [19] that the applicant reported suffering from “a considerable amount of pain in his lower back”. He also reported:

    “…The pain radiates to his legs and feet where there is numbness. He takes Panadol and Panadeine Forte to relieve the pain. [The applicant] is unable to sit or stand for very long. He finds it difficult to reach up to retrieve a book from a shelf at head height. [The applicant’s] poor balance makes it hard for him to bend down to pick up something on the floor. He never drives his car for very long. [The applicant] is able to slowly move his head from side to side and up and down to see what is around him. He does not help with household activities such as clothes washing and bed making because he is scared that his dizziness might cause him to have a fall”.

25. In the decision under review it is recorded that the applicant “appeared able to turn his head to look over his shoulder, was able to bend forward to pick up what was on the table in front of him and did not need assistance to get up out of his chair”.

26. Based on the available evidence I am satisfied that during the relevant period this condition had a functional impact on activities involving spinal function. However, I note that there is limited contemporaneous medical evidence corroborating the applicant’s claims in regards to the impact this condition had on his ability to function during the relevant period. Having careful regard to the descriptors contained in Table 1 of the Impairment Tables (Functions requiring Physical Exertion and Stamina) I find that a rating of 5 impairment points for this condition is appropriate.

    Upper limb condition – shoulder pain/carpal tunnel syndrome

27. The Secretary accepts, and I agree, that the applicant suffered from shoulder pain and carpal tunnel syndrome during the relevant period. These conditions were fully diagnosed, treated and stabilised during the relevant period which is supported by medical imaging and the evidence of Dr Wallace, an orthopaedic surgeon, Dr Oates, consultant occupational physician and Dr Guirgis, an orthopaedic surgeon. Like the applicant’s back condition; his upper limb condition is long-standing. The issue in contention is the proper impairment rating to be assigned in respect of the impairment arising from this condition.

28. The SSCSD heard evidence from the applicant that despite surgery, he continued to have pain and numbness in his wrists and hands. He reported also having persistent pain in the shoulders and that he needed help from his wife with showering, hair washing, dressing and doing up buttons. He stated that he was able to write with a pencil, could handle coins and use a mobile phone. He was able to take a carton of milk out of the refrigerator, but had difficulty with unscrewing a bottle of lemonade.

29. Having regard to all of the available evidence and the descriptors in Table 2 of the Impairment Tables (Upper Limb Function), I am satisfied that the evidence supports a finding that the applicant had some difficulty with most of the descriptors for a 5 point rating. It follows that the appropriate impairment rating for this condition is 5 impairment points.

    Hypertension

30. In a Medical Report for DSP dated 2 September 2014, Dr Curran reports that the applicant suffers from hypertension with the date of onset listed as 2006. Dr Curran reports that treatment has included Avapro HT from 2006 to 2013 and Coveram from 2014. The applicant’s current symptoms are listed as “only mild headaches” with BP reportedly “well-controlled”.

31. Having regard to the available evidence, I’m not satisfied that this condition interferes with the applicant’s ability to function, and therefore it does not attract any impairment rating.

    Cardiac Disease

32. On 29 March 2016, the applicant suffered a STEMI- ST- Elevation Myocardial Infarction (a heart attack) and was subsequently referred to the Sutherland Heart Clinic for treatment. In a report dated as 31 March 2016, Dr Robaei, cardiologist, stated that the applicant underwent percutaneous intervention to a 70% mid right coronary artery stenosis. In a follow-up report dated 27 April 2016, Dr Robaei noted that the applicant had been reasonably well since discharge from hospital and stated:

    “I am very pleased with [the applicant’s] progress. His chest discomfort is very atypical and not cardiac in nature and his echo today shows very good recovery of his left ventricle since his MI. [The applicant] should continue on all current therapy. Dual antiplatelet therapy with aspirin and prasugrel should continue for a total of 12 months…”

33. Based on the available medical evidence, the applicant appears to have recovered well from his cardiac event and there appears to be no or minimal functional impairment as a result of his heart condition. As such, no impairment rating may be assigned to this condition.

    Vertigo

34. The Secretary contends and I agree, that the applicant’s condition of vertigo cannot be considered fully treated and stabilised during the relevant period. The reason for reaching this conclusion is based on the following medical evidence.

35. In a report dated 18 August 2016, Dr Ghougassian, consultant neurologist and neurophysiologist, reports that the applicant was admitted to hospital between 11 and 14 August with vertigo. It is noted that according to the applicant’s wife, the applicant’s history with vertigo dates back to at least 15 years; “[The applicant] has been complaining to her regularly about feeling vertiginous”. Dr Ghougassian notes that the applicant has improved in regards to his vertigo whilst in hospital and was back to his normal self about three days after admission. Vestibular studies and an MRI scan of the brain were planned.

36. In a report dated 27 October 2016, Dr Ghougassian states that the applicant did not follow up with him as planned, however his balance clinically improved following use of the medication although it is “not anywhere near perfect”. He recommended ceasing the medication Rivotril and commencing Valium 2mg.

37. Based on the available medical evidence, which indicates that this condition was under active treatment with an expectation of improvement during the relevant period, I am not satisfied that this condition is fully treated and stabilised and therefore cannot be assigned an impairment rating.

    Other Conditions

1. For completeness I note that the applicant has reported suffering from an abdominal hernia, sinus problems and vision problems. There is very limited medical evidence pertaining to the functional impact of these conditions during the relevant period and there is also insufficient medical evidence regarding treatment for these conditions. As such, it is not possible to determine whether these conditions were fully diagnosed, treated and stabilised during the relevant period. No impairment rating can be assigned to these conditions.

   CONCLUSION

2. The overall impairment rating arising from the applicant’s conditions as at the relevant period is 10 points. Since the applicant’s conditions do not rate 20 or more points under the Impairment Tables, it is not necessary for me to consider whether he had a continuing inability to work during the relevant period. It follows that his claim for DSP cannot succeed.

3. I affirm the decision under review. 

4. The applicant may apply for DSP again at any time.

I certify that the preceding 41 (forty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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

Associate

Dated: 4 December 2018

Date(s) of hearing:	4 & 30 April 2018
Applicant:	In person
Solicitors for the Respondent:	Department of Human Services