Venkatesan Gopalachary and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2013] AATA 297

[2013] AATA 297

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/0104
Re	Venkatesan Gopalachary
APPLICANT
And	Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT

DECISION

Tribunal	Dr Kerry Breen, Member
Date	13 May 2013
Place	Melbourne

The Tribunal affirms the decision under review.

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

Dr Kerry Breen, Member

SOCIAL SECURITY - disability support pension – major depressive disorder - reduced vision in right eye – conditions permanent -  10 impairment points - decision affirmed.

Legislation

Social Security Act 1991 section 94(1)

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

REASONS FOR DECISION

Dr Kerry Breen, Member

13 May 2013

1. Mr Venkatesan Gopalachary suffers from a major depressive disorder, long-standing reduced vision in his right eye, osteopenia (bone mineral density lower than normal) and hypercholesterolemia (high level of cholesterol).  He lodged a claim for disability support pension (DSP) with Centrelink, the service provider for the Department of Families, Housing, Community Services and Indigenous Affairs, on 5 July 2012. The claim was supported by a Medical Report Disability Support Pension, completed by his general practitioner.

2. Centrelink referred Mr Gopalachary for a Job Capacity Assessment (JCA) which was conducted on 12 July 2012. The assessor advised that Mr Gopalachary’s depressive disorder was fully diagnosed, treated and stabilised, as required under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) and assigned the condition 5 impairment points. The assessor advised that as Mr Gopalachary’s hypercholesterolemia was well controlled it had no functional impact.  He assigned the condition nil impairment points. The assessor also advised that Mr Gopalachary’s reduced vision and osteopenia were not fully diagnosed, treated and stabilised.

3. Relying on the JCA, a Centrelink Officer rejected Mr Gopalachary’s DSP claim. Mr Gopalachary sought review of the Centrelink decision by a Centrelink Authorised Review Officer (ARO). The ARO affirmed the Centrelink decision. On 15 October 2012 Mr Gopalachary applied to the Social Security Appeals Tribunal (SSAT) for a review of the ARO’s decision. The SSAT conducted a hearing on 5 November 2012 at which Mr Gopalachary gave evidence by telephone. The SSAT affirmed the ARO’s decision. Mr Gopalachary now seeks review of the SSAT decision by this Tribunal.

   ISSUES

4. The issues to be determined are:

   ·What permanent medical conditions does Mr Gopalachary suffer from?

   ·What impairment ratings do his conditions attract?

   ·And, if the total impairment rating is 20 points or more, what is the impact of these conditions on his capacity to work?

5. The relevant assessment period is from 5 July 2012 and the subsequent 13 weeks.

   LEGISLATION

6. The relevant legislation includes s 94(1) of the Social Security Act 1991 (the Act) and the Impairment Tables. Section 94(1) of the Act provides:

   94(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;

7. In order that a person’s impairment be assessed under the Impairment Tables, the medical condition(s) causing the impairment must be permanent and be more likely than not, in the light of available evidence, to persist for more than two years, as is provided in section 6 of the Impairment Tables:

   6Applying the Tables

   Assessing functional capacity

   (1)The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.

   Applying the Tables

   (2)The Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.

   …

   Impairment ratings

   (3)An impairment rating can only be assigned to an impairment if:

   (a)     the person’s condition causing that impairment is permanent; and

   Note: For permanent see subsection 6(4).

   (b)     the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.

   …

   Permanency of conditions

   (4)For the purposes of paragraph 6(3)(a) a condition is permanent if:

   (a)     the condition has been fully diagnosed by an appropriately qualified medical practitioner; and

   (b)     the condition has been fully treated; and

   Note: For fully diagnosed and fully treated see subsection 6(5).

   (c)     the condition has been fully stabilised; and

   Note: For fully stabilised see subsection 6(6).

   (d)     the condition is more likely than not, in light of available evidence, to persist for more than 2 years.

   Fully diagnosed and fully treated

   (5)In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to 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.

   Fully stabilised

   (6)For the purposes of paragraph 6(4)(c) and subsection 11(4) 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.

   …

   THE EVIDENCE OF THE APPLICANT

8. Mr Gopalachary requested that the hearing be conducted on the papers; that is by considering the documents lodged with the Tribunal and without holding a hearing, pursuant to s 34J of the Administrative Appeals Tribunal Act 1975.  The respondent did not object to this request.  It appeared to the Tribunal that the issues for determination on the review could be adequately determined in the absence of the parties. Therefore, the Tribunal consented to Mr Gopalachary’s request. Accordingly, Mr Gopalachary did not give oral evidence to the Tribunal. The material summarised below is derived from the following documents that Mr Gopalachary provided to the Tribunal:

   ·An email addressed to the Tribunal received on 9 January 2013 with an attachment Application for Review of Decision which included detailed reasons for application.

   ·A Claim for Disability Support Pension or Sickness Allowance lodged by Mr Gopalachary with Centrelink on 5 July 2012.

9. In addition, the Tribunal has examined the SSAT Reasons for Decision dated 5 December 2012, in so far as it addresses any evidence that Mr Gopalachary provided to the SSAT by telephone. Similarly, copies of the JCA reports provided to the Tribunal dated 10 November 2010 and 13 July 2012 have been examined, in so far as they address any material that Mr Gopalachary provided to the assessors.

10. The Tribunal notes that Mr Gopalachary contributed to a questionnaire regarding his overall health when he attended Medibank Health Solutions on 25 August 2010 (see para 20).

11. In his email addressed to the Tribunal received on 9 January 2013 Mr Gopalachary drew attention to matters including his:

    ... current financial hardship, continued depressive condition despite medical treatment, … proven evidence of the current medical condition from my family physician Dr Bee, Medi7 Clinic, Clayton, psychiatrist Dr Ian Katz…  Dr Scott Drysdale, Mental Aged Care clinic… that the depressive disorder, stress and anxiety conditions have continued for more than two years and likely to continue for some more time.

12. In the reasons for application section of his Application for Review of Decision Mr Gopalachary indicated that he disagreed with the impairment rating of 5 points that had been advised by the JCA assessor as it:

    ... does not weigh properly and assessed well the merits of the disability conditions, such as short-term memory loss, unable to focus and concentrate, due to depressive disorder, anxiety, stress conditions, loss of engineers jobs in 2009, 2010 and 2011, inability to stay in jobs for longer times, continued unemployment from October 2011.

13. Mr Gopalachary wrote (in part) that:

    ... all the medical records of Dr. Bee Kok, DR. Scott Drysdale, Mental Aged care clinic, Warrigal Rd, and Mr. Ian Katz, Psychiatrist, 1 Murphy Street Clayton, Melbourne have clearly indicated and pointed out explicitly and emphatically proved that the depressive disorder is a very long protracted and continued mental condition not easily treated by pharmaceutical drugs and psychological counselling…

    He then emphasised the ill effects of his memory difficulties stating that he requested review of the decision:

    ... as I am also suffering from sleep apnoea, always feeling tired and sleepy in a semi-dazed state, the sleep disorder test results are also available with my family physician….

14. In his Claim for Disability Support Pension or Sickness Allowance lodged with Centrelink on 5 July 2012 Mr Gopalachary listed his disabilities as short term memory difficulties and problems, osteopaenia, depression.

15. Mr Gopalachary gave oral evidence at the SSAT hearing on 5 November 2012. In its Reasons for Decision, the SSAT summarised the evidence in regard to Mr Gopalachary’s depression in paras 18 to 20 which read as follows:

    18.Mr Gopalachary told the Tribunal that he had suffered from depression since 2010 and Dr Katz had prescribed Pristiq. He saw Dr Katz again sometime around December 2011 but has not seen him in 2012. He has tried a few different medicines. Recently he was prescribed Sertraline after not having taken any antidepressant medication for the first six months of 2012. He started the Sertraline again a few months ago, possibly in October. Dr Bee Kok knows him very well and as Mr Gopalachary was finding 100 mg was making him to (sic) drowsy and sleepy, Dr Bee Kok reduced the dose to 50 mg which seems to be effective and he is not having any bad feelings. He thinks he is almost normal now.

    19.He does have episodes where he forgets things, such as where he parked the car and at times he talks loudly and gets excited and shouts. This has spoiled his relationship with his daughter in law and after speaking loudly to her last year she is no longer talking to him. He lost two jobs between 2008 and 2010 because of this. Last week he drove in the wrong direction whilst going to the temple and his wife gets embarrassed by these sorts of things. He is able to get himself dressed and wear appropriate clothing but he does things like forgetting his wallet and writing long e-mails to relatives that spoils relationships. He probably spends 5 to 6 hours a day on the computer, every day. He can’t control his desire to send e-mails because he feels his thoughts should be known but it has disrupted his family relationships and his son wants an apology from him. Sometimes he gets up at 2 AM to check e-mails and to watch TV. He will go for an evening walk for 30 to 40 minutes and tidy the front garden. Sometimes he goes to musical performances, maybe once or twice a month, but has trouble remembering when these are on. The performances might go for about three hours. His wife needs to drive if they are going to functions and he is able to travel by public transport if he is on his own. He uses a diary to try to remember when things are on.

    20.He was seeing the psychologist (Vivian Pereira) but last saw her at the end of 2011. He was referred to her by clinical psychologist, Dr Roy. He knows he can go back and see Ms Pereira if he needs to but generally he speaks to his GP.

16. The JCA report dated 13 July 2012 contains a large amount of information about Mr Gopalachary’s employment difficulties, difficulties attributed to his depression, his description of his behaviour at functions away from home, and his relationships with family members. In regard to the treatment of depression, the assessor recorded the following:

    ... Client reported that he saw a clinical psychologist for several sessions in 2010, then a psychiatrist for monthly review for 18 months, and now reviewed every six months. He said his doctor had said it was OK to cut his medication dose in half and reduce it to every second day....

17. In relation to Mr Gopalachary’s visual difficulties, in its Reasons for Decision , the SSAT has recorded the following (in part):

    Mr Gopalachary told the Tribunal that he has difficulty driving at night as he has trouble with approaching headlights and he can’t judge distances very well.…. He can read the computer screen and newspapers okay.

    MEDICAL EVIDENCE

18. The written medical evidence before the Tribunal includes:

    ·a medical assessment report from Medibank Health Solutions completed and signed by Dr Reza Sabetghadam dated 25 August 2010;

    ·a letter addressed to Dr Bella Weisman from Dr Peter Drysdale, consultant psychiatrist, dated 27 September 2010;

    ·a Centrelink Medical Report Disability Support Pension completed and signed by Dr Bella Weisman dated 14 October 2010;

    ·a letter addressed to the Memory Clinic at Monash Medical Centre from Dr Ian Katz, consultant psychiatrist dated 11 July 2011;

    ·a Centrelink Medical Report Disability Support Pension completed and signed by Dr Fah Bee Kok dated 5 July 2012;

    ·a Centrelink Medical Report Disability Support Pension completed and signed by Dr Fah Bee Kok dated 6 September 2012;

    ·a Centrelink Request for Ophthalmologist/Optometrist Report completed and signed by optometrist Mr Terry Fantas dated 11 September 2012; and

    ·a one page Patient Health Summary on the letterhead of Medi7 Clayton, 255 Clayton Rd, Clayton printed on 3 November 2012.

19. Paragraphs 20 to 29 summarise the information contained in the written medical evidence.

20. In a medical assessment report from Medibank Health Solutions dated 25 August 2010, Dr Reza Sabetghadam concluded with the opinion that Mr Gopalachary is fit for the above position without restriction. [The position applied for entry is illegible in the copy provided to the Tribunal.] The report mentioned R eye response – can’t read due to accident in young age. Left eye short sightedness.  It also mentioned scoliosis R side and a hearing test that demonstrated mild hearing loss. No other medical issues were identified in this report which included a detailed list of health questions that Mr Gopalachary completed.

21. Consultant psychiatrist Dr Peter Drysdale, in a two-page letter dated 27 September 2010 and addressed to general practitioner, Dr Bella Weisman, reported his assessment of Mr Gopalachary.  The letter noted an episode of depression in 2003 that resolved without treatment. Mr Gopalachary told Dr Drysdale that he had lost two jobs in the last two years because of short-term memory problems. The report outlined further history provided by Mr Gopalachary. It then provided the results of formal testing as follows:

    Mini-Mental State Examination scored 30/30. The memory test from the RUDAS saw him scored ¾ following a delay and was helped by a minor prompt. These two tests represent good cognitive functioning…..  Geriatric Depression Rating scale scored 13/15. He scored about 5 suggestive of major depression…

22. Dr Drysdale concluded under the heading Impression that Mr Gopalachary had a significant depressive component so that he reaches the diagnostic criteria for major depressive disorder with some anxiety and some somatic symptoms. Mr Gopalachary was prescribed Cymbalta 60 mg daily.

23. In a Centrelink Medical Report Disability Support Pension dated 14 October 2010, Mr Gopalachary’s general practitioner, Dr Weisman reported a diagnosis of Condition 1 as Short term memory difficulties, Osteopaenia Depression. History was recorded as Depression – poor memory, less active socially, increased irritability. Current treatment was noted as Cymbalta 30 mg. To the question about how this condition currently affects the patient’s ability to function, Dr Weisman answered n/A [The Tribunal is unsure if this should be interpreted as not available or not applicable.] Diagnosis of condition 2 was given as Osteopaenia femoral head.

24. In a letter addressed to the Memory Clinic at Monash Medical Centre dated 11 July 2011, Dr Ian Katz, consultant psychiatrist, wrote (in part):

    Ventkatesan is a sixty two year old gentleman who is a qualified engineer who has been undertaking some factory work in recent years and has been treated successfully by myself for a major depressive episode recently secondary to a bereavement and family issues in the last few years. He has also been suffering from quite significant memory issues which seem to have been responsive to some extent to treatment for his depression and I am seeking an assessment of his memory functioning particularly given the decline in his vocational circumstances and confidence at work in the last few years.

    [The Tribunal was not provided with any information from the Memory Clinic.]

25. In a Centrelink Medical Report Disability Support Pension dated 5 July 2012, Dr Fah Bee Kok, general practitioner at Medi7 Clayton, noted the diagnosis of Condition 1 as Major Depressive Disorder. History was noted as Loss of family member, loss of employments in chosen field of knowledge. Current symptoms were noted as Poor short‑term memory; poor attention/focus, loss of interest in usual pleasurable activities; depressed mood; insomnia. Current treatment was listed as Medication (Sertraline 50 mg daily), regular psychiatric review. Future/planned treatment was listed as Nil. In response to a question about how this condition currently affects the patient’s ability to function, Dr Kok noted reduced cognitive function and held that the current impact of this condition on the patient’s ability to function was expected to be more than 24 months. Other medical conditions that are generally well managed and that cause minimal or limited impact on ability to function were listed as Reduced right eye vision, hypercholesterolaemia and osteopaenia.

26. In a further Centrelink Medical Report Disability Support Pension dated 6 September 2012, Dr Kok again noted the diagnosis of condition 1 as major depressive disorder. The report indicated that this condition had been diagnosed by Dr Katz in 2010. Current treatment was listed as Sertraline 50 mg daily. Past treatment was noted as psychological counselling commencing in 09/2010 with a duration of 18 months and psychiatrist review commencing in 09/2010 with a duration of ... 3 months.  Current symptoms were noted as Poor short term memory, poor attention/focus, loss of interest in usual pleasurable activities; tiredness; depressed mood.  In answer to a question about how this condition and its treatment currently impact on the patient’s ability to function, Dr Kok wrote Reduced endurance Reduced cognitive function.

27. In the above report, Dr Kok answered a question about other medical conditions that are generally well managed and that cause minimal or limited impact on ability to function as follows: 

    Right chorioretinopathy – reduced night vision and binocular vision resulting in decreased driving ability (stabilised). Scoliosis – stabilised with nil further improvement, results in reduced physical ability and tiredness.

1. In a Centrelink Request for Ophthalmologist/Optometrist Report dated 11 September 2012, optometrist Mr Terry Fantas, reported as follows:

   Right eye – retinal detachment due to trauma over 25 years ago. Left side – cataract operation done in 1992. No improvement possible in the right eye even with surgery.

2. The one page Patient Health Summary on the letterhead of Medi7 Clayton printed on 3 November 2012 lists (in part) current medications: Crestor 5mg, Caltrate and Sertraline 50 mg. [The Tribunal notes that sertraline or Zoloft is a different antidepressant to Cymbalta.] Past history notes Scoliosis, Hypercholesterolaemia, Large Hydrocoele L Testicle, Abdominal Obesity and Depression – major.          

3. The respondent acknowledged that Mr Gopalachary suffers from major depressive disorder, reduced right eye vision, high cholesterol, scoliosis and osteopaenia. The respondent submitted that the depressive condition had been fully diagnosed, treated and stabilised and that five impairment points under Table 5 of the Impairment Tables was an appropriate rating. The respondent also submitted that the eye condition had been fully diagnosed, treated and stabilised and that five impairment points under Table 12 of the Impairment Tables was an appropriate rating. As the total impairment points were less than 20, the respondent maintained that Mr Gopalachary does not meet section 94(1)(b) of the Act and therefore is not entitled to DSP. Accordingly, the respondent argued that it was not necessary to address whether Mr Gopalachary has a continuing inability to work.

4. Mr Gopalachary submitted (in summary) that his depressive condition causes him greater disability than advised by the assessor who conducted the JCA on 13 July 2012 and that he was entitled to DSP.

   CONSIDERATION OF THE ISSUES

   DEPRESSION

   Is this fully diagnosed, treated and stabilised?

5. The reports of consultant psychiatrist Dr Drysdale in 2010 and of general practitioner Dr Kok in 5 July 2012 are sufficient to satisfy the Tribunal that, at the time of Mr Gopalachary’s DSP application, and for the purposes of the Act the condition of depression had been fully diagnosed, fully treated and stabilised. (There are additional features of Mr Gopalachary’s ill-health that emerge from consideration of all the material before the Tribunal, which suggests that there may be another psychiatric disorder that may need to be considered by his treating doctors as outlined below in paragraph 44. However, if this is so, the putative additional diagnosis cannot be considered as part of the appeal to this Tribunal).  Accordingly, the condition of depression is deemed to be permanent. As this condition meets the requirements of s 94(1)(a) of the Act and the requirements of para 6 of the Impairment Tables, Mr Gopalachary’s depression can be awarded an impairment rating.

   What impairment points does the depression attract?

6. The available evidence in regard to Mr Gopalachary’s disability arising from his depressive condition is conflicting. Mr Gopalachary himself describes very troublesome short-term memory loss that he claims interferes with his employability and with some aspects of daily living. However, the series of formal testing of memory conducted by Dr Drysdale in September 2010 do not support this contention. While these tests were conducted more than 12 months before Mr Gopalachary applied for DSP, this was at a time when Mr Gopalachary was held by Dr Drysdale to be depressed. In addition, at that consultation Mr Gopalachary had given an account to Dr Drysdale of losing two jobs in the last two years because of short-term memory problems.

7. The assessor who conducted the JCA in July 2012 recorded the following in regard to Mr Gopalachary’s memory:

   He reported that he needs to make lists to remember important obligations, said he sometimes misplaces his mobile, once forgot to take a jacket when he went out and occasionally gets directions wrong when travelling in an unfamiliar area.

   The assessor recommended an impairment rating of five points and wrote that the functional impact on Mr Gopalachary was as follows:

   There is mild functional impairment on activities involving mental health function – mild difficulties with self-care and independent living, social/recreational activities, and travel, interpersonal relationships, behaviour, planning and decision making and work/training capacity.

8. The Impairment Table relevant to depression is Table 5 – Mental Health Function. The introduction to Table 5 states (in part) that self-report of symptoms alone is insufficient and that there must be corroborating evidence of the person’s impairment.

   Table 5 contains the following descriptors to be used to award 0, 5 or 10 points:

   5There is a mild functional impact on activities involving mental health function.

   (1)The person has mild difficulties with most of the following:

   (a)     self-care and independent living;

   Example: The person lives independently but may sometimes neglect self-care, grooming or meals.

   (b)     social/recreational activities and travel;

   Example 1: The person is not actively involved when attending social or recreational activities.

   Example 2: The person sometimes is reluctant to travel alone to unfamiliar environments.

   (c)     interpersonal relationships;

   Example: The person has interpersonal relationships that are strained with occasional tension or arguments.

   (d)     concentration and task completion;

   Example 1: The person has difficulty focusing on complex tasks for more than 1 hour.

   Example 2: The person has some difficulties completing education or training.

   (e)     behaviour, planning and decision-making;

   Example 1: The person has unusual behaviours that may disturb other people or attract negative attention and may sometimes be more effusive, demanding or obsessive than is appropriate to the situation.

   Example 2: The person has slight difficulties in planning and organising more complex activities.

   (f) work/training capacity.

   Example: The person has occasional interpersonal conflicts at work, education or training that require intervention by a supervisor, manager or teacher or changes in placement or groupings.

9. From a consideration of all the material before it, the Tribunal is satisfied that the recommendation of the assessor in July 2012 of five impairment points under Table 5 was consistent with the incapacity experienced by Mr Gopalachary and was the correct rating.

   REDUCED VISION IN THE RIGHT EYE

10. The Tribunal is satisfied, based on the report of optometrist Mr Fantas, and the report of general practitioner Dr Kok, that Mr Gopalachary suffers from a condition that has greatly reduced his vision in his right eye and that the condition has been fully diagnosed, treated and stabilised. It therefore can be deemed permanent in accord with   s 94 (1) of the Act and the Impairment Tables.

11. The Tribunal  disagrees with the recommendation of the assessor in the JCA report of July 2012 that there was insufficient information available to determine that the eye condition has been fully diagnosed, treated and stabilised.  The report of optometrist Mr Fantas is detailed and it is clear from the report that Mr Fantas had the support of a treating ophthalmologist, Dr Daniel Chiu.

12. In rating the impairment caused by loss of vision, the relevant Impairment Table is Table 12 – Visual Function. The award of five impairment points is to be made where There is a mild functional impact on activities involving visual function.  Table 12 describes mild functional impact as entailing the following:

    (1)The person can perform most day to day activities involving vision and has mild difficulties seeing things at a distance or close up when wearing glasses or contact lenses (if these are usually worn), and at least one of the following applies:

    (a)the person has some difficulty seeing the fine print in newspapers or magazines (e.g. they have to hold the print further away or use brighter light);

    (b)the person has some difficulty seeing road signs, street signs or bus numbers or has some difficulty reading road signs at night but can still travel around the community and use public transport without assistance;

    (c)when looking straight ahead, the person has some difficulty seeing objects to the side or in the centre of their field of vision;

    (d)the person experiences some discomfort when performing day to day activities involving the eyes (e.g. mild occasional watering of the eyes, mild difficulty opening the eyes, or mild difficulty moving or coordinating the eyes, or difficulty tolerating bright lights and sunlight);

    (e)the person has functional vision in only 1 eye, or only has 1 eye, but has good vision in the remaining eye.

13. The degree of impairment described by Mr Gopalachary and noted by Dr Kok was consistent with a mild functional impact and accordingly in the view of the Tribunal five impairment points should be awarded.

    OTHER MEDICAL CONDITIONS

14. Mr Gopalachary’s treating doctors have identified the conditions of osteopaenia and hypercholesterolaemia, for which he takes medication. However, the medical evidence is that neither condition was the cause of any symptoms or incapacity/disability during the relevant period. Accordingly, the Tribunal does not need to consider these two conditions any further.

15. Dr Kok has also identified scoliosis as one of Mr Gopalachary’s:

    medical conditions that are generally well managed and that cause minimal or limited impact on ability to function reporting Scoliosis – stabilised with nil further improvement, results in reduced physical ability and tiredness.

    In view of this categorisation by Dr Kok, and as scoliosis was not identified in Mr Gopalachary’s DSP application nor raised as a significant condition by Mr Gopalachary when he was interviewed for the JCA in July 2012, the Tribunal finds that it is not a condition causing any symptoms or incapacity/disability.

16. Mr Gopalachary has also identified an additional health problem of sleep apnoea.  However, no independent medical evidence about this condition was presented to the Tribunal, and the Tribunal does not consider it further.

17. As identified in paragraph 32, the Tribunal is concerned that an additional condition which may be contributing to Mr Gopalachary’s mental ill-health has been overlooked. The Tribunal in particular notes the evidence of Mr Gopalachary as summarised by the SSAT in terms of:

    ... at times he talks loudly and gets excited and shouts. This has spoiled his relationship with his daughter in law and after speaking loudly to her last year she is no longer talking to him. He lost two jobs between 2008 and 2010 because of this…  He probably spends 5 to 6 hours a day on the computer, every day. He can’t control his desire to send e-mails because he feels his thoughts should be known but it has disrupted his family relationships and his son wants an apology from him. Sometimes he gets up at 2 AM to check e-mails and to watch TV.

18. In the view of this (medically-qualified) Tribunal, these described behaviours are not consistent with the typical features of major depressive disorder but could represent symptoms of a manic component to the illness. If this is so then the depressive episodes experienced could form part of bipolar disorder. A revised or extended diagnosis could assist in explaining the disabilities that Mr Gopalachary describes and could also assist should Mr Gopalachary decide to make a fresh application for DSP. The Tribunal advises Mr Gopalachary to consider discussing this matter with his general practitioner and seek a review with a psychiatrist.

    CONCLUSIONS

19. The Tribunal is satisfied that Mr Gopalachary suffers from major depressive disorder, reduced right eye vision, high cholesterol, scoliosis and osteopaenia.

20. The Tribunal is also satisfied that these conditions have been fully diagnosed, treated and stabilised and likely to persist for more than two years and thus may be deemed to be permanent as required by s 94(1) of the Act.

21. As Mr Gopalachary’s conditions are deemed permanent, the next requirement for DSP under s 94(1)(b) of the Act is for these conditions to be allocated impairment points. Under Table 5, the Tribunal has allocated 5 impairment points for the condition of depressive disorder. Under Table 12, the Tribunal has allocated 5 impairment points for the condition of reduced right eye vision. As this does not amount to the required 20 impairment points, Mr Gopalachary did not meet the requirement of s 94(1)(b) of the Act as at 16 January 2012. Accordingly, his application for DSP cannot succeed.

22. Since Mr Gopalachary’s application fails on this ground, the Tribunal has not considered the issue of whether Mr Gopalachary has a continuing inability to work.

    DECISION

23. The Tribunal affirms the decision under review.

I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Dr Kerry Breen, Member.

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

K.Randall, Associate

Dated:  13 May 2013

Date of hearing on the papers	5 April 2013
Applicant	In person
Advocate for the Respondent	Tim de Uray, Department of Human Services Program Litigation and Review Branch