Anthony NEJASMIC and Secretary, Department of Social Services

[2015] AATA 440

[2015] AATA  440

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2014/1920
Re	Anthony NEJASMIC
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr Ion Alexander, Member
Date	24 June 2015
Place	Sydney

The decision under review is affirmed.

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

Dr Ion Alexander, Member

CATCHWORDS

SOCIAL SECURITY – pensions – disability support pension – whether applicant’s conditions were fully diagnosed, treated and stabilised – whether applicant’s impairment is rated 20 points or more under the Impairment Tables – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth)

SECONDARY MATERIALS

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

REASONS FOR DECISION

Dr Ion Alexander, Member

24 June 2015

BACKGROUND

1.On 19 June 2013 Mr Nejasmic lodged a claim for Disability Support Pension (“DSP”) on the basis that he suffered a medical condition which was having an impact on his ability to function.

2.In his claim form Mr Nejasmic listed “brain injury” as his disability.

3.Mr Nejasmic’s claim was rejected by Centrelink, both initially and on internal review, and subsequently by the Social Security Appeals Tribunal (“SSAT”) on the basis that he did not satisfy the requirements of s 94 of the Social Security Act 1991 (Cth) (“the Act”). In particular he did not satisfy s 94(1)(b) of the Act, in that his impairment rating was not 20 points or more under the Impairment Tables.

4.In these proceedings Mr Nejasmic seeks review of the SSAT decision of 18 March 2014.

5.At the hearing Mr Nejasmic was self-represented and was able to give oral evidence.

ISSUES

6.In order to qualify for DSP, Mr Nejasmic must satisfy the requirements of s 94 of the Act as at the date of the claim or within 13 weeks of lodging the claim, in accordance with the requirements of the Social Security (Administration) Act 1999, that is, between 19 June 2013 and 18 September 2013(the claim period).

7.Section 94(1) of the Act provides that 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 20 points or more under the Impairment Tables; and

(c)one of the following applies;

(i)the person has a continuing inability to work;

1. It is agreed that Mr Nejasmic suffers a medical condition that causes some impairment and therefore satisfied s 94(1)(a) of the Act.

2. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Impairment Determination”) requires that an impairment rating can only be assigned to an impairment if the condition causing that impairment is “permanent” (paragraph 6(3)(a)).

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

   ·fully diagnosed by an appropriately qualified medical practitioner (paragraph 6(4)(a)), and

   ·fully treated (paragraph 6(4)(b)), and

   ·fully stabilised (paragraph 6(4)(c)).

4. Table 5 of the Determination is to be used where a person has a permanent condition resulting in functional impairment due to a mental health condition. The Introduction to Table 5 states that the diagnosis of the condition “must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made a psychiatrist)”.

5. Also, the Introduction to each Table requires that “self-report of symptoms alone is insufficient” and “there must be corroborating evidence of the person’s impairment”.

6. It is agreed that Mr Nejasmic has been treated for a benign meningioma and has a visual field defect in his right eye.

7. It is also agreed that the Mr Nejasmic suffers from hypertension and hypercholesterolemia and that these conditions cause no functional impact.

8. In respect of Mr Nejasmic’s claimed symptoms of anxiety and depression the Respondent submits that during the claim period these symptoms were not fully diagnosed, fully treated and fully stabilised and therefore a rating under the Impairment Tables cannot be assigned.

9. The Respondent contends that during the claim period Mr Nejasmic’s “fatigue” warranted a rating of no more than 5 points under Table 1 as decided by the SSAT.

10. The Respondent also submits that if the Tribunal were to find that Mr Nejasmic’s impairment rating during the claim period was 20 points or more he did not satisfy section 94(1)(c) of the Act in that he did not have a continuing inability ability to work.

11. It follows that the definitive issues in this matter are whether during the claim period Mr Nejasmic’s impairments rated 20 points or more under the Impairment Tables and if so, whether he had a continuing inability to work.

    EVIDENCE

    Medical Evidence relating to Meningioma

12. On 31 March 2013 Mr Nejasmic was admitted Liverpool Hospital following a minor motor vehicle accident after he had suffered a seizure. Cranial imaging revealed a dural based right frontal tumour. He was discharged on oral Dexamehtasone and Phenytoin (anticonvulsant medication).

13. On 23 April 2013 Mr Nejasmic was admitted to Liverpool Hospital for right frontal craniotomy and resection of tumour. At operation Mr Nejasmic was found to have a meningioma adherent to the right optic nerve and chiasm which was successfully resected.

14. On 29 April 2013 Mr Nejasmic was discharged on a weaning dose of Dexamethasone and maintenance dose of Phenytoin.

15. Mr Nejasmic told the Tribunal that his Phenytoin dose was weaned to zero over three months.

16. On 17 October 2013 Mr Nejasmic was again admitted to Liverpool Hospital following a generalised seizure. Treatment with oral Phenytoin was recommenced and he was discharged on 19 October 2013.

17. On 27 November 2013 Mr Nejasmic was seen in follow-up by Dr Wardman, neurologist, who noted in a letter that subsequent to the weaning of Phenytoin Mr Nejasmic had recommenced consuming alcohol and that in the week preceding the 17 October 2013:  

    [he] had consumed alcohol that weekend and had also been very busy and tired with working around the house as well as helping his neighbours…..On the day of admission, Mr Nejasmic had a generalised seizure and was found by his brother on the front lawn of the house. He had two further witnessed seizures, which reached 6-7 minutes in duration and was quite confused and combative at that time.

18. Dr Wardman noted that since the admission to hospital Mr Nejasmic “has been feeling quite well although anxiety still an issue that is less concerning at the moment than when he was initially admitted to hospital.”

19. Dr Wardman stated that his impression was that at that stage Mr Nejasmic was quite well and should continue follow up with his clinical psychologist but if any symptoms suggesting mania arise referral to a psychiatrist would be necessary.

20. In a letter dated 28 April 2014 Dr Wardman noted that Mr Nejasmic described a condition called misphonia which appears to be “abnormal obsession with sounds that make him quite upset at times”.

21. Dr Wardman noted that Mr Nejasmic’s recent blood phenytoin levels were low suggesting non-compliance.  Mr Nejasmic described side effects from the Phenytoin including dizziness, drowsiness, unsteady gait and fatigue and Dr Hardman concluded that Mr Nejasmic was suffering from side effects of the phenytoin and switched him to Sodium valproate.

22. In a letter dated 20 August 2014 Dr Wardman noted that Mr Nejasmic was feeling well, has had no other seizures and “feels that his mood is much better without as many mood swings…he has been exercising with bike riding and states that he walks distances”.

23. Dr Wardman’s impression was that Mr Nejasmic had been very stable on Sodium valproate, had been compliant with his medication and noted that he expressed a desire to travel overseas for two months later that year.

    Mr Nejasmic’s Evidence

24. Mr Nejasmic told the Tribunal that in the 12 months prior to the incident on 31 March 2013 he suffered from a variety of symptoms including fatigue, feelings of depression, ill-defined confusion and problems with memory. In hindsight he felt that he had suffered intermittent “micro-seizures” and visual disturbance for a several months.

25. After discharge from hospital following the operation, Mr Nejasmic described feelings of anxiety and paranoia and was reluctant to leave his house but agreed that as time passed his feelings have significantly improved.

26. He lives alone in a three bedroom house and is able care for himself and attend all to household chores including mowing the lawn but is sometimes limited by fatigue.

27. As his driving licence has been suspended Mr Nejasmic explained that he generally rides a bike, walks or uses public transport. If he needs a car he is usually driven by his brother. He now rides a bike on public roads every second day for up to an hour and does not suffer any shortness of breath but does get “sore and tired”.

28. Mr Nejasmic explained that after the operation he liked to go for walk in a nearby reserve and that over time he has done this more often. He now regularly walks for up to one hour on days when he does not ride his bike.

29. Mr Nejasmic told the Tribunal that he frequently helps his elderly neighbours and regularly socialises with his family. He stated that, in general, his symptoms have improved since he has been stabilised on Sodium valproate, he sleeps well at night but is still troubled by ill-defined “fatigue” and misphonia. He explained that his hearing has become very sensitive and he can’t stand certain noises such “people chewing” but is not troubled by traffic noise when riding his bike. He has not had any investigations or sought any specialist advice in respect of this condition.

30. Mr Nejasmic told the Tribunal that his only visual impairment is loss of peripheral vision of his right eye and that because of this he sometimes bumps into people or gets knocked over. He has now been given approval to get a driving licence which, however, remains temporarily suspended for reasons unrelated to his medical conditions.

    Other Documentary evidence

31. In a Centrelink Medical Report dated 17 June 2013, Dr Mehmet, Mr Nejasmic’s GP, confirms that right frontal meningioma as the medical condition causing most impact. However, this report is of little assistance to the Tribunal in respect the Mr Nejasmic’s ability to function during the claim period.

32. In a supplementary report dated 15 September 2013 Dr Mehmet notes “anxiety related to traumatic experience & cranial surgery expected to improve seeing psychology [sic].”

33. In a letter dated 16 September 2013 Ms Przezdziecki notes that she had contact with Mr Nejasmic on five occasions in her capacity as Clinical Psychologist at the Liverpool Cancer Therapy Centre and that he was referred because of distress, low mood and anxiety.

34. Ms Przezdziecki states that Mr Mr Nejasmic reports “symptoms of depression such a low mood, irritability, feelings of being overwhelmed, worthlessness, anhedonia, low motivation and decreased energy.” She notes that Mr Nejasmic stated that he “is tired and frustrated because of his circumstances …has reported anxiety over his condition…has reported anxiety related to his life circumstances and multiple losses …[and] has described anxiety related to his changed appearance post surgery”.

35. Ms Przezdziecki does not provide a definitive diagnosis and makes no reference to treatment or prognosis. The eChart Summary Notes of the Liverpool Cancer Therapy Centre provide a comprehensive record of Mr Nejasmic’s consultations at the Centre between June 2013 and September 2014.

36. The notes confirm that Mr Nejasmic’s first consultation with Ms Przezdziecki was 27 June 2013 by telephone, that the first face to face consultation was on the 5 July 2013 and that thereafter there were regular consultations about every two to four weeks until September 2014.

37. Ms Przezdziecki does not record any definitive diagnosis but provides a comprehensive description of Mr Nejasmic’s reported symptoms, personal circumstances and various difficulties with finances and government departments.

38. Ms Przezdziecki provides psychological support in the form of strategies to manage stress and other cognitive approaches as well as encouragement to participate in support groups. I note that there is no indication in the notes that Ms Przezdziecki was aware that in April 2014 that Mr Nejasmic’s anticonvulsant medication had changed and that some of his symptoms may have been caused by Phenytoin.

39. In relation to Mr Nejasmic’s vision, in a letter dated 21 May 2013 visual acuity was assessed as 6/12 in the right eye and 6/6 in the left eye. In a letter dated 28 August 2013 Dr Abraszko, neurosurgeon, noted that the vision in Mr Nejasmic’s right eye had improved but that examination in June 2013 had revealed right homonymous visual field defect.

    CONSIDERATION

40. The evidence before the Tribunal clearly demonstrates that the diagnosis of a right frontal meningioma was a serious acute medical condition that has had a significant impact on Mr Nejasmic and his personal and financial circumstances. Although the meningioma was resected prior to the claim period, and therefore, was not actually present at that time, I accept that for the purposes of the Act this condition was permanent as at the date of claim.

41. The functional impact of this condition can be viewed from various perspectives including the impact of the meningioma prior to diagnosis, the impact of the mode of clinical presentation, the impact of the operation and the postoperative recovery and any permanent impairment caused by this condition.

42. On consideration of the evidence I am satisfied that that only permanent impairments that can be directly attributed to the meningioma are a predisposition to seizures and the visual field defect in the right eye.

43. The evidence clearly demonstrates that Mr Nejasmic’s anticonvulsant therapy was not finalised until well after the claim period and also there is no other demonstrated functional impairment.

44. After due consideration of the evidence and the descriptors in Impairment Table 12 I am satisfied in there is a mild functional impact on Mr Nejasmic’s activities involving visual function.

45. Mr Nejasmic claims to suffer chronic fatigue which has been present for some time before the diagnosis of the meningioma and has persisted.  In the evidence before the Tribunal there no satisfactory explanation as to cause of Mr Nejasmic’s ‘fatigue’. Furthermore, it is not surprising that Mr Nejasmic would have suffered some fatigue from time to time during the course of his illness if one considers that he has suffered several seizures, required a craniotomy with a period postoperative recovery and has required anticonvulsant medication with some side effects. 

46. I am not persuaded that in the present circumstances ‘fatigue’ can be considered a medical condition for the purposes of the Act and therefore a rating under the Impairment Tables cannot be applied.

47. The issue of Mr Nejasmic mental health symptoms is, in my view, problematic. I accept that he has suffered symptoms consistent with anxiety and depression at various times throughout the course of his illness.

48. However, the issue for the Tribunal is whether, in accordance with Impairment Table 5, he suffered from mental health condition that was diagnosed by a psychiatrist or clinical psychologist and was fully treated and fully stabilised during the claim period.

49. Mr Nejasmic did not see a clinical psychologist, Ms Przezdziecki, until 5 July 2013 which was during the claim period. In her letter of 16 September 2013, which was at the end of the claim period, Ms Przezdziecki did not provide a diagnosis or any evidence that would support a conclusion that Mr Nejasmic suffered a mental health condition that was fully treated and fully stabilised during the claim period.

50. Furthermore, the entries in the eChart Summary Notes would suggest that Mr Nejasmic required significant ongoing treatment and provide no clear evidence that his presumed mental health condition had stabilised and that there was permanent functional impairment.

51. Accordingly, I am satisfied that during the claim period Mr Nejasmic’s mental health condition was not fully diagnosed, fully treated and fully stabilised in accordance with the Impairment Determination and therefore a rating under the Impairment Tables cannot be assigned.

52. For completeness, I note that it is not clear to the Tribunal when the condition of ‘misphonia’ was first diagnosed and there is insufficient evidence to be satisfied that this condition was fully treated and fully stabilised during the claim period so that a rating under the Impairment tables cannot be assigned.

    DECISION

53. It follows that during the claim period Mr Nejasmic had a composite rating of 5 points under the Impairment Tables and therefore did not satisfy section 94(1)(b) and did not qualify for DSP.

I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Dr Ion Alexander, Member

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

Associate
Dated 24 June 2015

Date(s) of hearing	12 June 2015
Applicant	In person
Solicitors for the Respondent	Department of Human Services