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

[2017] AATA 904

Vasilas and Secretary, Department of Social Services (Social services second review) [2017] AATA 904 (19 June 2017)

Division:GENERAL DIVISION

File Number:           2016/6046

Re:Karen Vasilas

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Miss E A Shanahan, Member

Date:19 June 2017

Place:Melbourne

The Tribunal affirms the decision under review.

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Miss E A Shanahan, Member

SOCIAL SECURITY – pensions and benefits – disability support pension claim – complex medical history – severe osteoarthritis of right knee – awaiting surgery – delay consequent upon high anaesthetic risk – recent deterioration in cardiovascular parameters – incomplete assessment – decision affirmed

Legislation

Social Security Act 1991

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

Cases

Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

REASONS FOR DECISION

Miss E A Shanahan, Member

19 June 2017

1. Mrs Vasilas lodged a claim for disability support pension (DSP) on 29 February 2016, she having had to cease work because of severe ongoing right knee pain, limitation of movement with a severe functional impact.  She has multiple other significant medical conditions, most of which had been treated with excellent result or were controlled with ongoing medical treatment.  Mrs Vasilas had initially applied for sickness benefits but this claim was rejected as the conditions were considered to be permanent not temporary.

2. Mrs Vasilas’ claim was rejected by a Centrelink delegate on 30 May 2016 on the basis that she did not meet the requirements of s 94(1)(b) of the Social Security Act 1991 (the Act) in that her conditions did not attract an impairment rating of 20 points.  This decision was affirmed by an authorised review officer (ARO) on 22 July 2016 and by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT 1^st Tier) on 13 October 2016. 

3. The AAT 1^st tier had provided an impairment rating under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables). 5 points were allocated for Mrs Vasilas past back conditions under Table 4 - Spinal Function. A further 5 points were allocated under Table 1 - Functions requiring Physical Exertion and Stamina for the combined functional impact of her hypertension, carcinoid tumours and aortic valve replacement.  Her knee condition was considered to be fully diagnosed but not fully treated and stabilised and therefore did not attract an impairment rating.  Mrs Vasilas lodged an application for review of the AAT 1^st tier decision by the General Division of the Administrative Appeals Tribunal on 9 November 2016. 

4. The hearing of the matter was conducted on 10 April 2017. Mrs Vasilas was self‑represented but assisted by her husband and daughter. Mr Joshua Lessing, a solicitor in the employ of Sparke Helmore Lawyers appeared for the Secretary, Department of Social Services (the Secretary). The Tribunal had been provided with the so-called T‑documents in accordance with s 37 of the Administrative Appeals Tribunal Act 1975. Mrs Vasilas provided further reports relating to her medical treatment, her anaesthetic and medical assessments of anaesthetic risk (Exhibits A1 and A2), reports from her general practitioner Dr Heenetigala (Exhibits A3 and A5) and a report from her treating oncologist, Professor Michael Michael (Exhibit A4).

   BACKGROUND TO THE APPLICATION

5. Mrs Vasilas has worked as a part-time cleaner at the Box Hill Hospital for over 30 years.  She has clearly enjoyed her work and association with the hospital but was forced to cease work in February 2016 because of severe right knee pain impacting on her mobility to the extent that she required the use of a walking stick and the assistance of her husband both in shopping and her activities of daily living, including going to the toilet.

6. Mrs Vasilas’ past medical history is very relevant to her long term outlook.  In 1993 she underwent an L5/S1 discectomy and laminectomy. This was successful but she still has occasional back pain, particularly since her movement became restricted.  In 2006 she was diagnosed with Type II diabetes and now takes both oral hypo-glycaemics and insulin. Her diabetes control is reasonably good. 

7. In May 2013 Mrs Vasilas underwent aortic valve replacement of her bicuspid incompetent aortic valve. In the course of her preoperative investigation she was found to have numerous lung opacities.  At the time of her aortic valve replacement with a prosthetic mechanical valve the opportunity was taken to biopsy one of these lesions.  Following aortic valve replacement Mrs Vasilas developed acute renal failure. This was controlled, although just short of the requirement for dialysis.  Her renal function is said to have returned to normal. 

8. In 2007 Mrs Vasilas was diagnosed with hypertension. She had also developed a cerebrospinal fluid leak from her nose requiring dural patching.  Her hypertension has been difficult to control despite medication.

9. The lung nodule biopsy revealed a carcinoid tumour.  The exact histopathology of this tumour has not been provided. It is not known if it is a typical or atypical carcinoid.  Approximately 30 per cent of carcinoid tumours arise in the lung and are generally typical and inactive in terms of possessing neuro-endocrine function.  Seventy per cent arise from the gastrointestinal tract and according to Mrs Vasilas she has had a gastroscopy and a colonoscopy both of which were said to be normal. She has not undergone complete scanning procedures to exclude or confirm a gastrointestinal origin. 

10. Mrs Vasilas’ carcinoid tumours produce various chemicals and these contribute to her hypertension in that they alter the metabolism of 5-hydroxytryptophan and serotonin.  Her carcinoid deposits in the lung are being reviewed six monthly with positron emission tomography (PET) scans and she also has frequent serum Chromogranin A levels estimated following which her medication is  adjusted, in particular the dose of Physiotens.

11. Mrs Vasilas weighs 116 kilograms and has a basal metabolic index (BMI) of 49 which puts her in the morbid obesity range.  She has had difficulty losing weight because of her limited mobility and her obesity contributes to the difficulties with control of her diabetes.  As she is a continual snorer it has been suspected by several clinicians that she may well suffer from sleep apnoea but testing has not as yet been conducted.

12. Most of the above conditions are well controlled and under appropriate surveillance.  The major factor in her inability to work is her bilateral severe osteoarthrosis worse on the right side than the left.  Right total knee replacement has been recommended as she has lost all cartilage in the joint space on the right and has been told that she has bone on bone articulation, meaning that the articular cartilage has been destroyed.

13. Mrs Vasilas has seen Mr Matthew Evans, an orthopaedic surgeon, regarding her total knee replacement. This was to be performed at The Avenue Private Hospital.  Mr Evans requested an assessment by a renal physician at the Alfred Hospital, Dr Marco Bonollo, with respect to whether or not Mrs Vasilas was suitable or not for surgery at The Avenue hospital, which does not have an intensive care unit.  Dr Bonollo advised against surgery at The Avenue Hospital, given Mrs Vasilas complex medical history, and recommended that surgery should be undertaken in a large public hospital with intensive care facilities.  He recommended Monash Medical Centre, given Mrs Vasilas had undergone her aortic valve replacement surgery at that institution and her treating cardiologist Dr Tony White was a Monash consultant.

14. Mrs Vasilas has private hospital insurance and has elected to have her surgery performed at St Vincent’s Hospital as one of her daughters is senior nurse at that institution. Mrs Vasilas has undergone appropriate assessment by a general physician and an anaesthetist at St Vincent’s Hospital in order to determine if she is fit for right total knee replacement. 

15. On 30 November 2016 Mrs Vasilas was seen by both Dr Martin Duffy, an anaesthetist, and Dr Amy Osborne, a consultant physician.  Dr Osborne noted the past medical history, the current ongoing conditions and Mrs Vasilas’ medications which include   anticoagulation with Warfarin as she has a mechanical aortic valve.  Mrs Vasilas admitted to stable shortness of breath on exertion and mild swelling of her left ankle. Her right knee pain impacted on all her activities and disturbed her sleep. 

16. Physical examination was reported as normal except for the presence of hypertension.  There was no evidence of cardiac failure at that time.  Various tests were performed including renal function assessment which was satisfactory, electrocardiogram which was within normal limits. An echocardiogram in 2015 had shown normal left ventricular function with the valve prosthesis functionally well.  Dr Osborne assessed Ms Vasilas as fit for surgery, and outlined the necessary changes to her anticoagulation and her diabetes control in the pre and postoperative period.  It was also advised that surgery should not be proceeded with until the abscess in Mrs Vasilas’ anterior abdominal wall, thought to be due to an infected insulin injection site, was fully healed. 

17. Dr Martin Duffy assessed Mrs Vasilas from an anaesthetic point of view, identified the problems of morbid obesity, the presence of a mechanical aortic valve necessitating anticoagulation with Warfarin, the diabetes and the carcinoid syndrome which can result in intraoperative carcinoid crises with severe hypertension. He addressed the difficulties that might arise with a spinal anaesthetic, given the past laminectomy.  Dr Duffy considered there were increased risks for both general and spinal anaesthesia. He recommended   analgesia and admission to hospital the day before surgery for further testing and stabilisation.

18. Mrs Vasilas saw her orthopaedic surgeon, Mr Dooley, in mid-January 2017. Mr Dooley was not prepared to make a decision as to whether or not to proceed until all investigations were complete.  Mrs Vasilas has recently been review by her cardiologist Dr White. Dr White noted bilateral ankle oedema and that Mrs Vasilas had increasing shortness of breath on exertion.  In addition, her blood pressure was raised and she was told her pulse was racing. Dr White increased her dose of Lasix to 40 mg in the morning and the dosage her antihypertensive medication, both the metoprolol and the Physiotens. Dr White requested a repeat echocardiogram given the changes in Mrs Vasilas’ symptoms and his clinical findings. 

19. In her evidence before the Tribunal, Mrs Vasilas said her functional impairment arising from her knee pathology had increased and she could now only walk for 10 minutes before needing to stop and rest. She sleeps for approximately 3 hours at night and then sits in a chair as this relieves her knee pain.  Mrs Vasilas requires help to get from her bedroom to the toilet in the ensuite.  She believes that her knee pain has been far more severe since the injection of synvisc-one into her right knee on 3 February 2016.  This substance is an approved treatment for osteoarthritis but did not alleviate Mrs Vasilas’ symptoms. Mrs Vasilas believes it actually made the symptoms worse. 

20. A job capacity assessment (JCA) was performed by an exercise physiologist on 20 April 2016.  The Tribunal notes several errors in this assessment in that a carcinoid tumour is not a form of cancer as reported and given that there are multiple opacities in both lungs surgery is not indicated.  The assessor recommended a zero impairment rating for the diabetes, the hypertension and the spinal disorder on the basis that there was no functional impairment arising from any of these conditions.  The knee condition was found to be diagnosed and permanent but not fully treated and stabilised as further treatment was planned.  The aortic valve replacement and cardiac status other than the hypertension were not considered. Dr Heenetigala’s reports confirm the medical diagnoses, their treatment and their current status. 

    EVIDENCE BEFORE THE TRIBUNAL

21. Both Mrs Vasilas’ evidence and the documentary evidence have been included under the BACKGROUND TO THE APPLICATION.  Mrs Vasilas outlined her more recent deterioration and confirmed that the decision to proceed to surgical treatment of her knee is in abeyance while her cardiac status is being reinvestigated.  It was suggested by Mr Lessing that Mrs Vasilas might seek work in a more sedentary position, a suggestion she rejected immediately as she did not anticipate that any employer would provide her with assistance in going to the toilet.  She informed the Tribunal that Box Hill Hospital has kept her job open for her, in the hope that she would undergo successful right knee replacement and be fit to resume her part time duties as a cleaner. 

    RELEVANT LEGISLATION

22. The criteria for qualification for the DSP are contained in 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 ...

23. Section 94(3B) defines a severe condition as follows:

    (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.

24. In relation to s 94(1)(c), s 94(2) of the Act sets out the criteria for a continuing inability to work:

    (2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

    (aa)in a case where the person's impairment is not a severe impairment within the meaning of subsection (3B) … the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and

    (a)in all cases — the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and

    (b)in all cases — either:

    (i)     the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

    (ii)    if the impairment 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.

    The consequence of this is that where a person has a severe impairment, they are not required to have actively participated in a program of support.

    SUBMISSIONS

25. Mrs Vasilas expressed her dissatisfaction with the information she had been provided with by Centrelink. She stated that she had never been informed of the requirements of a program of support nor was she informed of the criteria for or whether she could apply for a Newstart allowance.  She agreed that her right knee was not fully treated and stabilised as a total knee replacement was still being considered.

    Respondent

26. The Secretary agreed that Mrs Vasilas met s 94(1)(a) of the Act but submitted that she did not satisfy s 94(1)(b) in that her impairment rating was, at the time of her application and within the 13 weeks thereafter, at the most 10 points given she was awaiting surgical treatment for her severe right knee osteoarthrosis.

27. The Secretary relied on the Tribunal decision in Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 regarding the 13 week reviewable period. The reviewable period is provided by effect of s 4(1) of Schedule 2 to the Social Security Administration Act1999 and limits the jurisdiction of this Tribunal to considering the Applicant’s condition within the period.  Any further deterioration in the applicant’s medical conditions should be the subject of a new claim for the DSP.  The Secretary sought a decision affirming that of the AAT 1^st Tier.

    TRIBUNAL’S DELIBERATIONS

28. Despite having a very complex and multifactorial medical history Mrs Vasilas has had appropriate treatment and has done extremely well given the severity of her conditions. She is now incapacitated to a major degree by her osteoarthrosis of the knees. The Tribunal is satisfied that she meets the criteria of s 94(1)(a) of the Act, having multiple physical diseases.

29. However, at the time of her claim and in the 13 weeks thereafter, it is clear that her right knee osteoarthrosis was not fully treated and stabilised as surgical intervention had been advised and was being considered.  Measures had been taken to proceed to total knee replacement but given the complex past and continuing history, particularly that of treatment resistant hypertension and carcinoid tumour presenting as multiple pulmonary nodules with neuroendocrine activity, Mrs Vasilas presents as having a significantly increased anaesthetic risk. Should she be accepted for surgery it should be performed in a hospital with intensive care facilities. 

30. There has been a recent deterioration in Mrs Vasilas’ cardiac status, she having developed tachycardia and peripheral oedema (swelling of her ankles).  This has necessitated further investigation and reassessment. No definite date has been set for her surgery. The treatment of her knee condition remains uncertain and thus cannot be assigned an impairment rating. This leaves her, at most, with the five points allocated by the AAT 1^st Tier for five points under Table 4 for her spinal condition and five points under Table 1 for the combined impact of her other permanent conditions which impact on her functions requiring physical exertion and stamina. Mrs Vasilas is unable to satisfy the 20 point requirement under s 94(1)(b) of the Act.

31. Mrs Vasilas does not meet the requirements of s 94(1)(b) of the Act and therefore did not qualify for the DSP during the review period. As Mrs Vasilas does not satisfy s 94(1)(b) of the Act, it is not necessary to consider the requirements of s 94(1)(c). The evidence before the Tribunal indicates that Mrs Vasilas is still being considered for further surgical treatment for her right knee osteoarthrosis. In the event that surgery is considered too risky she should consider re-applying for the DSP as, on a functional basis, it is likely she would then qualify by attracting an impairment rating of 20 points under Table 3 of the Impairment Tables.

32. The Tribunal affirms the decision under review. 

I certify that the preceding 32 (thirty‑two) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member

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Associate

Dated: 19 June 2017

Date of hearing:	10 April 2017
Applicant:	In Person
Advocate for the Respondent:	Mr Joshua Lessing
Solicitors for the Respondent:	Sparke Helmore Lawyers

APPENDIX

Exhibit A1Anaesthetic Review - Martin Duffy dated 8 November 2016

Exhibit A2Report of Dr Amy Osborne dated 8 November 2016

Exhibit A3Report & Medical Certificate by Dr N Heenetigala dated 19 December 2016

Exhibit A4Report from Professor Michael Michael of Peter MacCallum Cancer Centre dated 15 February 2017

Exhibit A5       Report from Dr N Heenetigala dated 9 March 2017