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

[2016] AATA 1093

Zirilli and Secretary, Department of Social Services (Social services second review) [2016] AATA 1093 (22 December 2016)

Division:GENERAL DIVISION

File Number:           2016/1262

Re:Sammy Zirilli

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member N A Manetta

Date:22 December 2016

Date of written reasons:        12 January 2017

Place:Adelaide

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal affirms the decision under review.

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Senior Member N A Manetta

CATCHWORDS

SOCIAL SECURITY - disability support pension - whether applicant's medical conditions were fully diagnosed, fully treated and fully stabilised - held - they were not - decision affirmed.

LEGISLATION

Social Security Act 1991, 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 N A Manetta

12 January 2017

1. After delivery of my oral decision, I received a request for written reasons, which I now publish.

2. This is an application by Mr Sammy Zirilli for a review of a Level One decision of this Tribunal dated 9 February 2016.  In its decision, the Tribunal affirmed decisions taken within the respondent’s Department that Mr Zirilli was not eligible to receive a disability support pension (DSP) under the Social Security Act 1991 in respect of his application dated 28 May 2015.  Mr Zirilli represented himself at the hearing before me; Mr Burgess appeared for the respondent.

   STATEMENT OF CONCLUSION

3. Hearing the matter afresh on the evidence presented to me, I have decided that Mr Zirilli is not eligible to receive a DSP in respect of his application. I set out the background facts and then my reasons for this conclusion.  As Mr Zirilli represented himself, and as I am delivering my reasons orally, I shall express myself as concisely as circumstances permit and I shall not quote from legislative provisions.

   BACKGROUND FACTS

4. Mr Zirilli, who was 33 at the time of the hearing before me, was born in Adelaide in 1982.  His early secondary schooling was undertaken at Christian Brothers’ College and the last three years were completed at St Michael’s College.  He completed Year 12 in 2000, and was successful in obtaining a security guard’s licence in 2001.  He worked as a security guard in Rundle Mall in one of the arcades for around 12 months, but resigned on his father’s strong recommendation because of safety concerns.  He then had employment at the Spina Bifida Foundation and a phone shop and then worked as a truck-driver and labourer.  Periods of employment were interspersed with periods of unemployment.  In 2006, he undertook general tiling, bricklaying and painting work, and then obtained work in the Newport Quays project in 2008.  Unfortunately, his time there was cut short after approximately one year, when his employer suddenly died.  He kept trying to find labouring jobs and worked in this capacity on and off until 2013/2014.

5. At that time, unfortunately, Mr Zirilli found himself in trouble with the law and was sentenced to a term of imprisonment.  He was released in 2014, but whilst in jail, Mr Zirilli gave evidence that he suffered very serious assaults.  The assaults were not the subject of evidence by Mr Zirilli as their recall was too distressing for him.  It is sufficient to note that they have left Mr Zirilli with a Post-traumatic Stress Disorder (PTSD) and high anxiety for his personal safety.  The respondent does not dispute this fact.  Mr Zirilli’s DSP claim form refers to PTSD and depressive anxiety as the condition, or conditions, giving rise to impairments that warrant the awarding of a DSP.

   REASONS

6. It is clear that I am bound by law only to consider impairments arising from fully diagnosed and fully treated conditions that are fully stabilised.[1]  If, for example, a condition is not fully treated at the time of lodgment of the claim (or within 13 weeks of that date), it may not be considered in the assessment of an applicant’s claim.

   [1] See section 6 in Part 2 of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011.

7. In my opinion, Mr Zirilli’s PTSD and resultant depressive anxiety have not been fully treated.  Accordingly, whatever the degree of impairment they are presently causing Mr Zirilli, they must be ignored in my assessment of his eligibility for a DSP. Given this conclusion, there is no opportunity for Mr Zirilli to be awarded a DSP.

8. I now set out my reasons for concluding that Mr Zirilli’s conditions were not fully treated at the time of his lodgment of his claim form or within 13 weeks of that date.

9. On his release from jail, Mr Zirilli consulted his GP, Dr Pasquale Cocchiaro.  Dr Cocchiaro prescribed Endep at the rate of 25 mg per day.  Mr Zirilli gave evidence that he takes a single Endep dose at night and this helps him to fall asleep but the dose is of limited effect during his waking hours.  Mr Zirilli gave evidence that a Dr Antonio Cocchiaro (Dr Pasquale Cocchiaro’s brother practising out of the same surgery) suggested that Mr Zirilli try Risperdal instead of Endep.  This suggestion was made to Mr Zirilli when Mr Zirilli happened to consult Dr Antonio Cocchiaro in Dr Pasquale Cocchiaro’s absence. Mr Zirilli gave evidence that he took Risperdal for approximately 3 weeks only and then discontinued the medication and reverted to Endep as Risperdal left him feeling poorly.

10. Mr Zirilli has not tried any other medication to control what he said is an extensive anxiety problem that prevents his attendance at work sites.  

11. Mr Zirilli also gave evidence that he has consulted a clinical psychologist, Mr Tindaro Fallo.  At the time of his DSP claim, he had seen Mr Fallo on a number of occasions, and continued to see him after lodging his claim for a DSP.  Mr Fallo has utilised, it would appear, a psychotherapeutic approach with Mr Zirilli, which has involved Mr Fallo and Mr Zirilli discussing the events in jail.  Mr Zirilli has been encouraged to utilise deep-breathing exercises when he feels threatened or agitated by the recall of the events he suffered in jail, but Mr Zirilli was unable to specify any other relaxation, control or other techniques recommended by Mr Fallo as a means of mitigating the effects upon him of his depressive anxiety outside the home.  It is clear to me that Mr Zirilli’s course of treatment with Mr Fallo has not produced a sufficient improvement in Mr Zirilli’s levels of anxiety so that Mr Zirilli feels capable of leaving home and undertaking paid work.

12. I make the obvious point at this juncture that Mr Fallo, as a psychologist, is not permitted to prescribe medication in conjunction with the psychotherapy being administered to Mr Zirilli.  The psychotherapy having not led to any marked improvement in Mr Zirilli’s condition, it seems obvious that a pharmacological form of treatment of Mr Zirilli’s PTSD and anxiety is necessary, or at least it is clearly worth trying.

13. On the evidence before me, Mr Zirilli has only tried Endep and Risperdal, and the latter for a brief time only.  There is of course a range of medicines that are available for the treatment of PTSD and depressive anxiety.  Surprisingly, these have not apparently been discussed or explored by Dr Cocchiaro with Mr Zirilli.  From the perspective of Mr Zirilli’s mental health, this appears to be a most unsatisfactory state of affairs.  I am unable to conclude on the evidence before me that Mr Zirilli would not benefit substantially from a different pharmacological regime to mitigate the effects of his anxiety.  Dr Pasquale Cocchiaro was not called to give evidence before me, but a letter from him dated 28 April 2016 was tendered by Mr Zirilli (exhibit A1) in which Dr Cocchiaro states: –

    “We have exhausted all reasonable treatment options over the last year, and it is unlikely that any other treatment options will be of benefit.”

14. I cannot accept this statement in light of the fact that Mr Zirilli has had such a limited range of medication prescribed for him. In the circumstances, I am unable to conclude that Mr Zirilli’s underlying medical conditions have been fully treated.  The impairments arising from them are ineligible, therefore, to be considered.  It follows that I can award no points under the Impairment Tables to Mr Zirilli in respect of his PTSD and depressive anxiety and that his claim for a pension must fail.

15. Dr Cocchiaro’s statement that all reasonable treatment options have been exhausted is, I must say, also somewhat surprising in light of the fact that Mr Zirilli has not regularly consulted a psychiatrist.  Mr Zirilli gave evidence that he does not wish to see a psychiatrist because he is concerned that any disclosure to a third party of the events in the jail may lead to reprisals for him.  He did see, however, a psychiatrist, a Dr Dhillon, at the Queen Elizabeth Hospital.  He saw Dr Dhillon once only and, he said, only because Centrelink had advised him that he needed to see a psychiatrist.  Mr Zirilli was, on that occasion at least, prepared to consult a psychiatrist and in light of that evidence, I would not conclude that Mr Zirilli cannot consult a psychiatrist given his anxiety.

16. In any event, even if that were the case, I am quite clearly of the view that Dr Cocchiaro could and should investigate with Mr Zirilli, and prescribe for him, more effective medication.

17. My conclusion means that it is unnecessary for me to consider whether Mr Zirilli would be eligible to receive 20 points under the Impairment Tables on the assumption that his PTSD and depressive anxiety were eligible to be considered.  I note the degree of impairment he presently suffers was not the subject of detailed corroborating evidence (which is necessary before points may be awarded).  I need not take this aspect of the matter any further given my primary conclusion that Mr Zirilli’s PTSD and depressive anxiety have not been fully treated.  This conclusion means I am unable to award any points to Mr Zirilli and his application for a DSP must fail.

    Ms Neale’s evidence

18. I would note, finally, that the respondent called Ms Neale, a clinical psychologist, to give evidence.  I did not find her evidence to be of assistance in the resolution of the matter before me except in limited respects.  I found her report to be somewhat argumentative in tone.  Moreover, she was critical of Mr Fallo’s treatment of Mr Zirilli but although she rang him to discuss Mr Zirilli’s case, she did not discuss with him in any detail his treatment of Mr Zirilli.  In the circumstances, her criticism of Mr Fallo seemed somewhat unfair.  I was also concerned by her conclusion that the correct dosage of psychotropic medication (Endep) had not been prescribed by Dr Cocchiaro.  Ms Neale is not herself qualified to prescribe medication and she did not discuss with Dr Cocchiaro the reason for the apparently low dose of Endep in Mr Zirilli’s case before stating her conclusion (which she based on a conversation with a doctor who had no familiarity with Mr Zirilli’s case).  I do accept, however, that from her own experience as a clinical psychologist she is aware that there are a number of different medications currently in use for the treatment of PTSD and depressive anxiety.  This was in my opinion reliable evidence.  Moreover, her evidence in this regard most probably falls in the realm of facts of which a Tribunal could take notice without requiring proof.

    FORMAL ORDER

19. The formal decision of the Tribunal will be to affirm the decision under review.

I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member N A Manetta

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Administrative Assistant

Dated: 12 January 2017

Date(s) of hearing:	16 & 22 December 2016
Applicant:	In person
Advocate for the Respondent:	Mr A Burgess
Solicitors for the Respondent:	Sparke Helmore Lawyers