Mardiryan and Secretary, Department of Social Services (Social services second review) [2017] AATA 686 (15 May 2017)

Last Updated: 19 May 2017

Mardiryan and Secretary, Department of Social Services (Social services second review) [2017] AATA 686 (15 May 2017)

Division: GENERAL DIVISION

File Number(s): 2016/4420

Re: Mr Avedis Mardiryan

APPLICANT

And Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal: Mr Conrad Ermert, Member

Date: 15 May 2017

Place: Melbourne

The Tribunal affirms the decision under review.

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

Mr Conrad Ermert, Member

SOCIAL SECURITY – claim for Disability Support Pension – whether physical, intellectual or psychiatric impairments – whether conditions fully diagnosed, fully treated and fully stabilised – whether impairments attract 20 impairment points – impairments attract zero impairment points – decision affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975; s37
Social Security (Administration) Act 1999; Sch 2; cl 4
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011; paras 6(3)(a), 6(4)
Social Security Act 1991; s 94(1)

REASONS FOR DECISION

Mr Conrad Ermert, Member

15 May 2017

INTRODUCTION

1. On 9 September 2015 Mr Avedis Mardiryan, the Applicant, lodged with Centrelink a claim for Disability Support Pension (DSP). Centrelink is the service provider for the Secretary, Department of Social Services, the Respondent.
2. On 12 November 2015 an officer of Centrelink decided that Mr Mardiryan was not qualified for the payment of DSP as he had not actively participated in a Program of Support (PoS) (the original decision). Mr Mardiryan sought a review of the decision. On 27 January 2016 an Authorised Review Officer (ARO) affirmed the original decision as he assessed Mr Mardiryan as not having a continuing inability to work and he had not met the PoS requirements.
3. Mr Mardiryan sought a review of the ARO’s decision. On 26 July 2016 the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) affirmed the decision as Mr Mardiryan’s total impairment rating was zero points and he did not meet the medical requirements for the payment of DSP.
4. This is an application for review of the AAT1 decision.

HEARING

5. The hearing was conducted by telephone. Mrs Christine Mardiryan, the wife of Mr Mardiryan, represented him at the hearing. Mr Mardiryan gave evidence under affirmation. Mr Pietro Nacion, of Sparke Helmore, represented the Respondent at the hearing.
6. I had before me the documents provided by the Respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T-Documents). For Mr Mardiryan I took in as evidence:
   • Exhibit A1 – report by Mark Kulkens, Clinical Psychologist, dated 19 January 2015;
   • Exhibit A2 – report by Mark Kulkens, dated 21 July 2015;
   • Exhibit A3 – report by Dr Kenneth Wong, Mr Mardiryan’s General Practitioner (GP), dated 1 April 2017;
   • Exhibit A4 – report by Mark Kulkens, dated 9 March 2017; and
   • Exhibit A5 – email from Alexandra Galloway, Vocational Consultant with AMS Consulting Group, dated 7 December 2016.
7. For the Respondent I took in as Exhibit R1 a letter from Alexandra Galloway, Vocational Consultant with AMS Consulting Group, dated 20 October 2016. I took in for consideration the Secretary’s Statement of Issues, Facts and Contentions dated 24 February 2017.

LEGISLATION

8. The relevant legislation is contained in the:
   • Social Security Act 1991 (the Act),
   • Social Security (Administration) Act 1999 (the Administration Act), and
   • Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables).
9. Section 94(1) of the Act details the requirements for qualification for DSP as follows:
   • (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...

Qualifying Period

10. Schedule 2, clause 4(1) of the Administration Act requires Mr Mardiryan’s qualification for DSP to be determined from the date of his claim to a date 13 weeks thereafter. In this case the Qualifying Period is 9 September 2015, the date of the claim, to 8 December 2015, that being a period of 13 weeks.

ISSUES

11. The issues I must determine are whether, in the relevant period:
    • Mr Mardiryan had physical, intellectual or psychiatric impairments; and if so
    • The impairments attract a rating of at least 20 points under the Impairment Tables; and if so
    • Mr Mardiryan had a continuing inability to work.

EVIDENCE

12. In regard to his back condition Mr Mardiryan said that the pain brought on his depression. He found it very difficult to manage his pain.
13. Mr Mardiryan said that Centrelink had difficulty in finding employment for him. He was told that he was exited from a program of support as he was not suitable to fit in the program. After being told this he had a relapse of his conditions. He felt that he was being played by people. He said his back problem stops him from socialising. He is largely housebound and people won’t come to see him.
14. Mr Mardiryan said he is confused by the claim process. He has been reviewed only by the Occupational Therapist from Centrelink. He feels that he has not been properly assessed.
15. He says he forgets a lot. When his pain takes over it affects his mental condition and he is out of action for two days. He cannot do maintenance tasks around the house, which is becoming run down. He cannot tend to the garden. He is stressed about money and the children’s school fees. His wife helps him with showering.
16. In response to questions from Mr Nacion, Mr Mardiryan agreed that his treating psychologist, Mr Kulkens, has diagnosed him with two disorders which he connected to his spinal condition. Mr Mardiryan said he was aware of the suggestions made by Mr Kulkens in his report of 21 July 2015 to improve his condition. He agreed with Mr Kulkens’ opinion that the depression and somatic disorder play a part in his back problems.
17. Mr Mardiryan said he had not been seen by a surgeon since his review by Mr Quan, spinal surgeon, on 21 April 2015. He said he had to pay for that visit out of his own pocket. He agreed with the history recorded by Mr Quan in a report dated 27 July 2015 that [h]is walking was restricted to less than twenty minutes at a time.
18. Referred to the report of Dr Wong, dated 21 August 2015, Mr Mardiryan agreed that his current treatment comprised self-managed walking exercises and medications including Cymbalta. Mr Mardiryan said that Dr Wong prescribed the Cymbalta to manage his moods but he could not remember when it was prescribed. Mr Mardiryan said his mental condition has stabilised. The pain would run through his head. Since taking the Cymbalta he slows down and does not rethink things too many times. Since its prescription he has not ceased taking Cymbalta.
19. Mr Mardiryan agreed that anti-depressant medication had not been mentioned by Mr Kulkens. He said it was suggested by Dr Wong and also when he was seen by a psychiatrist for the WorkCover claim. Mr Mardiryan said he was assessed by the psychiatrist in 2015 but had never received a report. He said the psychiatrist told him that he should be OK in six months. Mr Mardiryan agreed that he was not reviewed by the psychiatrist for the purpose of treatment. He saw the psychiatrist only for an independent examination.
20. Mr Mardiryan said he was aware of the report of Mr Kulkens dated 21 July 2015 in which he recorded:
    • Mr Mardiryan has reported improved capacity to tolerate his pain and improved satisfaction engaging in tasks of daily living including engagement with his family;
    • ... [I]t is my professional view Mr. Mardiryan would benefit from dietician and physiotherapy review, sleep re-assessment and regular massage. In the longer term, regular and clear collaborative communication between medical providers regarding Mr. Mardiryan and the somatic nature of his condition will be useful. Clearly ongoing psychological support to support Mr. Mardiryan’s improving capacity to mindfully separate stressors, accurately label emotions and reduce tendency to somatise psychological stress would also be useful; and
    • A variety of suggestions are offered to improve Mr. Mardiryan’s circumstances and improve the likelihood he could return to work with these including support from dietician and physiotherapist (to support weight reduction), sleep reassessment (to improve sleep onset and duration), regular massage (to address muscular, stress and somatic elements) and psychological intervention to address somatisation and associated depressed mood.
21. Referred to the report of the Job Capacity Assessor (JCA) dated 10 November 2015, Mr Mardiryan said:
    • he was still able to drive for short distances when his pain levels are low;
    • he uses a walking stick as he finds it difficult to get in and out of the car;
    • he uses a trolley for support when he goes shopping;
    • he and his wife take two cars when they go out so that he can leave earlier when the pain becomes too much; and
    • he has difficulty focussing on tasks for longer than one hour as he forgets things the next moment after reading them.

22. Taken to the report of Mr Kulkens dated 19 January 2015, Mr Mardiryan said:
    • he attended the interview on his own;
    • he accepted as correct that his flashes of irritability are rare, saying he gets frustrated but nobody listens to him; and
    • he disagrees with the report of his being the primary carer for his parents; Mrs Mardiryan explained that Mr Mardiryan only provides interpreter support for his parents as they speak no English; his mother is in a home, and his father is cared for by his sister and also by Mrs Mardiryan.
23. Asked about the entry in Mr Kulkens’ report dated 21 July 2015 which recorded “The ideal role for Mr. Mardiryan might be as a permanent part-time problem solver for a company dealing in electronic design and/or maintenance” Mr Mardiryan said he could not remember talking to Mr Kulkens about it. He added that he would like it to happen.
24. Referred to the Business Administration course recommended in the AMS Consulting Group (AMS) Retraining Report dated 2 March 2015, Mr Mardiryan said that he did not attend as he was advised the course was not suited to him as the participants were all Muslim women. He heard no more about the course.
25. In regard to his motivation for work Mr Mardiryan said:
    • he agreed with Mr Kulkens who recorded in his report dated 21 July 2015 that “... his ability to work will be measured by the trade-off between relative reward and cost”;
    • his pain controls him;
    • he is constantly looking for work;
    • he used to motivate and train people as part of his work but he cannot control when his pain comes on;
    • he fell in a shopping centre which was very frightening;
    • he would like to be employed but is prevented by his present condition; the more he thinks about it the more depressed he becomes, he sets himself off;
    • he needs to be in an environment where he can look after himself properly; and
    • he has applied for jobs including clerical work, storeman positions, and bus driver however he is rejected because he does not have the relevant experience.
26. Mr Mardiryan was referred to the email from Alexandra Galloway dated 7 December 2016 which reported:

... the reason for ceasing to participate in the program (if any):
Mr Mardiryan completed both 26 week and 12 week programs. The programs ceased as they had run their natural course and no further services were funded.

Mr Mardiryan stated that the consultant had said they had nothing further to offer that was suited to his condition and that is why no funding was provided.

TRIBUNAL CONSIDERATIONS

Impairments (subsection 94(1)(a) of the Act)

27. The Respondent accepts that Mr Mardiryan satisfies sub-section 94(1)(a) of the Act as he suffers impairments from the following conditions:
    • Major depressive disorder and somatic symptom disorder (mental health conditions);
    • Lumbar spine condition;
    • Hypertension;
    • Obstructive sleep apnoea;
    • Obesity;
    • Gastro-oesophageal reflux disease (GORD); and
    • Right ankle fracture.
28. I am satisfied that the medical evidence supports this concession and I find accordingly.

Impairment Rating (subsection 94(1)(b) of the Act)

29. I will now consider whether Mr Mardiryan’s impairments attract an impairment rating of 20 or more points in order to satisfy section 94(1)(b) of the Act.
30. Paragraph 6(3)(a) of the Impairment Tables states that an impairment rating can only be assigned to an impairment if the impairment is permanent. Paragraph 6(4) provides that a condition is permanent if the condition:
    • (a) has been fully diagnosed by an appropriately qualified medical practitioner, and
    • (b) has been fully treated, and
    • (c) has been fully stabilised; and
    • (d) is more likely than not, in light of available evidence, to persist for more than 2 years.
31. I will consider each condition in turn.

Mental Health Conditions

32. The Respondent accepts that the conditions have been diagnosed by Dr Wong, Mr Mardiryan’s GP, and confirmed by Mr Kulkens, a Clinical Psychologist. I am satisfied that the medical evidence supports the concession and I find accordingly.
33. In considering whether the conditions were fully treated and fully stabilised I note the report of Mr Kulkens dated 21 July 2015 in which he recorded:

“Since previously authored report (19^th January 2015) Mr. Mardiryan has continued receiving clinical psychological therapy services on a further six occasions ...
Mr. Mardiryan has reported improved ego strength ... In particular Mr. Mardiryan has reported improved capacity to tolerate his pain and improved satisfaction engaging in tasks of daily living including engagement with his family ...
Clearly, improvements in Mr. Mardiryan’s weight (reduced), sleep (earlier onset and uninterrupted) and capacity to manage stress ... could be expected to improve Mr. Mardiryan’s capacity for future work. ...
Regarding appropriate treatment, it is my professional view Mr. Mardiryan would benefit from dietician and physiotherapy review, sleep re-assessment and regular massage. In the longer term ... ongoing psychological support ... would also be useful ...
A variety of suggestions are offered to improve Mr. Mardiryan’s circumstances and improve the likelihood he could return to work. These include:

• Support from dietician and physiotherapist (to support weight reduction),
• Sleep reassessment (to improve sleep onset and duration),
• Regular massage (to address muscular, stress and somatic elements), ...
• Psychological intervention to address somatisation and associated depressed mood.”

34. The observations and opinions noted above are largely a repetition of those contained in Mr Kulkens’ report dated 19 January 2015. I consider these reports to be sufficiently contemporaneous to the Qualifying Period to reflect Mr Mardiryan’s condition during that period.
35. Although recommended by Mr Kulkens as measures expected to improve Mr Mardiryan’s capacity for work, I have no evidence that Mr Mardiryan has sought treatment from a dietician or a physiotherapist, nor has he had sleep re-assessment and regular massage. Mr Kulkens’ latest report, dated 9 March 2017, records that Mr Mardiryan has received psychological therapy services on 41 separate occasions, the latest being on 6 March 2017. However, I have no evidence that Mr Mardiryan had a session with Mr Kulkens during the Qualifying Period.
36. I am satisfied that at the time of the Qualifying Period Mr Mardiryan had not undertaken reasonable treatments, recommended by his treating psychologist, that could be expected to improve Mr Mardiryan’s capacity for work. I am satisfied that at the Qualifying Period Mr Mardiryan’s mental health conditions were not fully treated and not fully stabilised.
37. As the conditions were not fully treated and not fully stabilised they were not permanent in the terms of the Impairment Tables during the Qualifying Period. As a result I am unable to assign to them an impairment rating.

Lumbar Spine Condition

38. In determining whether the condition was fully diagnosed at the Qualifying Period I note the report of Mr Quan, spinal surgeon, dated 27 July 2015. In that report he recorded the results of CT and MRI scans showing “degenerative disc disease at L5/S1 with mild broad based posterior disc bulging with a mild degree of lateral recess narrowing but overall no major spinal stenosis or neural compression seen at any level”.
39. I am satisfied that Mr Mardiryan’s lumbar spine condition was fully diagnosed in the Qualifying Period and find accordingly.
40. In considering whether the condition is fully treated and fully stabilised I note the following reports:
    • Mr Quan dated 27 July 2015 which records as appropriate treatment: “An L5/S1 epidural cortisone injection may break his pain cycle ... Otherwise, the key is weight loss and symptomatic relief in the form of pain management, as there is no simple surgical solution for him currently”;
    • Dr Wong dated 21 August 2015 which records psychological counselling as part of his future planned treatment for the condition;
    • Mr Kulkens dated 31 March 2015 which records as his prognosis and proposed treatment plan:

“It is my expectation Mr. Mardiryan will continue seeking medical and/or psychological supports in efforts to ameliorate his symptoms. Short-term relief will give way to chronic pain. Supporting Mr. Mardiryan to separate and identify stressors and reduce tendency to somatise. Focus on strengths; minimise disparaging comments; maximise communication from providers.”

• Mr Kulkens dated 21 July 2015 which records:

“A variety of suggestions are offered to improve Mr. Mardiryan’s circumstances and the likelihood he could return to work. These include:

• Support from dietician and physiotherapist (to support weight reduction) ...;
• Regular massage (to address muscular, stress and somatic elements) ...;
• Psychological intervention (to continue addressing somatisation and associated depressed mood), ...”

41. The specialist opinions of Mr Quan and Mr Kulkens, supported by the opinions of the treating GP, Dr Wong, are that treatment for Mr Mardiryan’s back condition should include weight loss and psychological counselling. There is no evidence that, at the time of the Qualifying Period Mr Mardiryan had undertaken any treatment in regard to weight loss, nor that he had participated in psychological counselling sessions following Mr Kulkens’ advice in July 2015. As a result I am unable to accept that, during the Qualifying Period, his back condition was fully treated and fully stabilised. Accordingly, the condition is not permanent in the terms of the Impairment Tables.
42. As the condition is not permanent I am unable to assign an impairment rating to the condition.

Other Conditions

43. In considering the conditions of hypertension, obstructive sleep apnoea, obesity, GORD and right ankle fracture, I note the report of Dr Wong dated 21 August 2015 in which he reports these conditions as being generally well managed and causing minimal or limited impact on Mr Mardiryan’s ability to function. The Respondent accepts that the conditions are all fully diagnosed, fully treated and fully stabilised, but states that they cause little or no impact on his ability to function and do not give rise to any impairment rating under the Impairment Tables. Mrs Mardiryan made no submissions in regard to these conditions.
44. I am satisfied from the medical evidence that all the conditions are fully diagnosed, fully treated and fully stabilised and are therefore permanent in the terms of the Impairment Tables. As they cause minimal or limited impact on Mr Mardiryan’s ability to function I assign an impairment rating of zero points to each condition.

Total Impairment Rating

45. I have assigned the following impairment ratings to Mr Mardiryan conditions:
    • Mental health condition – not fully treated and not fully stabilised; unable to assign an impairment rating;
    • Lumbar spine condition – not fully treated and not fully stabilised; unable to assign an impairment rating;
    • Hypertension – zero impairment points;
    • Obstructive sleep apnoea – zero impairment points;
    • Obesity – zero impairment points;
    • GORD – zero impairment points; and
    • Right ankle fracture – zero impairment points.
46. The total impairment rating in the Qualifying Period is zero points. This is not sufficient to satisfy the requirements of section 94(1)(b) of the Act.

Conclusion

47. As Mr Mardiryan does not satisfy section 94(1)(b) of the Act, he does not meet all the requirements of section 94(1) of the Act. As a result, during the Qualifying Period, Mr Mardiryan is not qualified for the receipt of DSP. This means that the decision of the AAT1 is the correct decision.
48. This decision relates to Mr Mardiryan’s condition and circumstances at the time of the Qualifying Period. There is evidence of further treatment subsequent to the Qualifying Period. If Mr Mardiryan considers his condition and circumstances have changed since that time he is at liberty to submit a further application for DSP. In addition, I note Mr Mardiryan’s stated willingness to work in a suitable environment. Any additional assistance able to be provided by the Respondent in finding a suitable employment situation may benefit all parties.

DECISION

49. I affirm the decision under review.

I certify that the preceding 49 (forty-nine) paragraphs are a true copy of the reasons for the decision herein of Mr Conrad Ermert, Member

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

Dated: 15 May 2017

Date of hearing:	8 May 2017
Advocate for the Applicant:	Mrs Christine Mardiryan appeared on her husband's behalf
Advocate for the Respondent:	Mr Pietro Nacion
Solicitors for the Respondent:	Sparke Helmore