Demil BERBER and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2012] AATA 550

[2012] AATA  550

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2012/0918
Re	Demil BERBER
APPLICANT
And	Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT

DECISION

Tribunal	Dr Ion Alexander
Date	23 August  2012
Place	Sydney

The decision under review is affirmed.

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

Dr I Alexander 

Catchwords

SOCIAL SECURITY – disability support pension – s 94 – whether applicant achieves 20 points or more under the Impairment Tables – whether there is a continuing inability to work – whether conditions are fully documented, diagnosed, investigated, treated and stabilised – whether requirements are satisfied within the assessment period – the decision under review is affirmed.

Legislation

Social Security Act 1991, s 94
Social Security (Administration) Act 1999

REASONS FOR DECISION

23 August 2012

INTRODUCTION

1. On 20 October 2011 Mr Berber lodged a claim for Disability Support Pension (DSP).

2. His claim was rejected by Centrelink and in a decision dated 2 March 2011 the Social Security Appeals Tribunal (SSAT) affirmed Centrelink’s decision.

3. In this application Mr Berber seeks review of the SSAT’s decision.

4. At the hearing Mr Berber was unrepresented but gave oral evidence with the assistance of an interpreter.

   BACKGROUND

5. Mr Berber migrated to Australia in 1993.

6. In 1995 while working in the Marconi Football Club Mr Berber was injured during an armed robbery. He was shot in the face and subsequently had several hospital admissions for reconstructive surgery. In his oral evidence he indicated that apart from some continuing facial numbness and reduced taste sensation he had no significant ongoing disability with respect to this incident.

7. Following this incident Mr Berber had intermittent psychological treatment and was prescribed some “calming medicine”. He ceased this treatment and medication during 1997 because “it was too expensive”.

8. In 1997, while waiting in a queue, Mr Berber suffered an episode which included numbness in the left arm and shortness of breath. He was admitted to hospital for about five days, Mr Berber was unable to recall any explanation as to the cause of this episode. He did indicate , however, that it was not a “heart attack”   

9. In 1998 Mr Berber was employed by the Westminster Building Company as a general labourer. He remained working fulltime with this company until his employment was terminated on 4 October 2011 because the company went into liquidation.

10. In his evidence Mr Berber indicated that during the first five years he did heavy labouring work which included lifting cement bags and carting bricks. However, during the last five years of his employment, although working fulltime hours he was on “lighter duties” because of health problems.

    ISSUES

11. In his application Mr Berber claims to suffer several medical conditions which cause significant impairment including a “heart condition”, atrial fibrillation, hypertension, diabetes, osteoarthritis of the knees and elbows, back pain and depression.

12. Also in 2010 Mr Berber had a partial gastrectomy which he claims was to help him lose weight in order to assist with his hypertension treatment.

13. In order to qualify for DSP Mr Berber must satisfy the requirements set out at s 94 of the Social Security Act 1991  (the Act)  which means that the degree of impairment he suffers as result of his various medical conditions must achieve a rating “20 points or more under the Impairment Tables” (s 94(1)(b)).

14. If so he must also have “a continuing inability to work” (s 94(1)(c)).

15. I note that the introduction of the Impairment Tables stipulates that an impairment rating can only be assigned after “a comprehensive history and examination” and that a condition “must be a fully documented, diagnosed condition which has been investigated, treated and stabilised”.

16. Furthermore, the requirements of s 94 must be satisfied at the date of the application for DSP or within the following 13 weeks in accordance with the Social Security (Administration) Act 1999.

17. Therefore the assessment period is between 20 October 2011 and 19 January 2012

    THE IMPAIRMENTS

18. Mr Berber’s claim was supported by a medical report from his GP, Dr Shanmugam, dated 18 October 2011.

19. Dr Shanmugam listed “ischaemic heart disease with atrial fibrillation” and “osteoarthritis both knees and elbows” as the conditions that have a significant impact on Mr Berber’s ability to function.

20. He also listed diabetes mellitus, hypertension partial gastrectomy and depression as conditions generally well managed and that cause minimal or limited impact on Mr Berber’s  ability to function.

21. I note that Dr Shanmugam made no mention of back pain in his report.

22. There is no dispute that the conditions of diabetes mellitus, hypertension and partial gastrectomy are fully diagnosed, treated and stabilised.

23. Also there is no convincing evidence before Tribunal that these conditions cause any functional impairment other than occasional relatively minor symptoms and therefore these conditions should be assigned an impairment rating of NIL.

24. With respect to the condition of ‘depression’ Dr Shanmugam’s report provides no information with respect to symptoms or functional impairment.

25. In his oral evidence Mr Berber indicated that his psychological symptoms have increased since the termination of his employment and that he has trouble sleeping and worries about his health.

26. In a report dated 7 April 2012, Professor Kecmanovic, psychiatrist, expressed the opinion that Mr Berber “presented with symptoms of Dysthymia”. Mr Berber was started on antidepressant medication and was to be reviewed in 6 weeks.

27. I am satisfied that the condition of ‘depression’ was not fully diagnosed, treated and stabilised during the assessment period and therefore an impairment rating cannot be assigned.

28. In a report dated 4 April 2012 Dr Giblin ,orthopaedic surgeon, noted that Mr Berber now complains of lower back pain with intermittent burning in the legs.

29. He also noted that plain x-rays showed early degenerative change and recommended an MRI of the lumbar spine and a bone scan.

30. I am satisfied that the condition of “back pain” was not fully diagnosed, treated and stabilised during the assessment period and therefore an impairment rating cannot be assigned.

31. With respect to the condition of osteoarthritis of the knees and elbows Dr Shanmugam reported that Mr Berber suffers “severe pains in both knees and elbows especially on walking and lifting” and that his “ability to move is restricted due to knee pain” so that he “need[s] support for day to day living”.

32. In his evidence Mr Berber’s description of his symptoms and the degree of impairment was unclear and unconvincing. His only current treatment for this condition was intermittent rest, daily “Panadol” and occasional “Voltaren”

33. Mr Berber had specialist treatment in early 2008 when he was seen on several occasions at the Spinal Sports Care Centre.  At that time he had two injections into the right knee which apparently resulted in significant improvement in his symptoms at that time. Mr Berber did not return to the clinic and has had no further specialist treatment since then.

34. In my view there is insufficient evidence before the Tribunal to be satisfied that the osteoarthritis condition was fully diagnosed, treated and stabilised during the assessment period  and therefore an impairment rating cannot be assigned.

    The “Heart Condition”

35. In his report Dr Shanmugam diagnosed Mr Berber as suffering from “Ischaemic Heart Disease with Atrial Fibrillation” and described his symptoms as: “breathlessness, occasional chest discomfort, tiredness and dizziness”

36. In respect of Mr Berber’s ability to function Dr Shanmugam  noted “breathless on exertion, easily tired … episodes of dizziness”

37. The Tribunal had the benefit of several reports written by Dr Shafransky following consultations with Mr Berber

38. On 15 February 2012 Dr Shafransky noted that the Mr Berber was “asymptomatic from the cardiac point of view” and “denies any chest pain or shortness of breath or chest pain”.

39. An ECG confirmed the diagnosis of atrial fibrillation.

40. An exercise stress test done on 15 February 2010 in which Mr Berber was exercised to reach stage 11 on the Bruce protocol was deemed to be negative for significant coronary artery disease.

41. Relevantly the exercise tolerance symptomatic activity level achieved at stage 11 of the Bruce protocol is 6-7 Mets.

42. On 12 May 2010 Dr Shafransky noted that Mr Berber had recently had successful weight reduction surgery and had already lost some weight. There was no mention of any cardiac symptoms.

43. On 29 November 2010 Dr Shafransky noted that Mr Berber had lost 20kg of weight, was feeling much better and denied any significant chest pain or shortness of breath.

44. On 26 May 2011 Dr Shafransky noted that Mr Berber appeared to be stable and denied any palpitations of chest pain.

45. A stress echocardiogram was performed in which Mr Berber was again exercised to reach stage 11 on the Bruce protocol. Mr Berber did not develop any chest pain or shortness of breath during the exercise stress test.

46. This means that Mr Berber did not complain of any cardiac symptoms after having been exercised to a level of 6-7 Mets.

47. Dr Shafransky noted that Mr Berber’s “resting echocardiogram showed normal left ventricular function without any wall motion abnormalities. There were no new wall motion abnormalities on the exercise echocardiogram. This renders this exercise echocardiogram negative for significant coronary artery disease.” 

48. On 5 December 2011 Dr Shafransky noted that Mr Berber was well from the cardiac point of view and denied any chest pain or shortness of breath. An ECG revealed rate controlled atrial fibrillation.

49. In my view, apart from atrial fibrillation, the material before the Tribunal does not provide a precise diagnosis in respect of Mr Berber’s “heart condition”.

50. The fact that Dr Shafransky  reported  two exercise stress tests that were negative for significant coronary artery disease appears to challenge Dr Shanmugam’s diagnosis of Ischaemic Heart Disease

51. Also Dr Shafransky’s documentation of Mr Berber’s denial of cardiac symptoms from February 2010 to December 2011 is inconsistent with the symptoms and impairment claimed in Dr Shanmugam’s  report.

52. Also on two occasions during 2010 Mr Berber was able to achieve an exercise level of 6-7 Mets with no apparent symptoms and no changes in the ECG or echocardiogram.

53. This leads me to the conclusion that the correct impairment rating for Mr Berber’s  “heart condition” under Table 1 is five points.

    DECISION

54. For reasons set out above I am satisfied that during the assessment period the correct impairment rating for Mr Berber’s various medical conditions was five points.

55. It follows that Mr Berber did not satisfy the requirements of s 94(1)(b) of the Act which means he is was entitled to DSP.

56. The decision under review is affirmed.

I certify that the preceding 56 (fifty-six) paragraphs are a true copy of the reasons for the decision herein of

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

Associate

Dated 23 August 2012

Date(s) of hearing	13 August 2012
Applicant	In person
Advocate for the Respondent	Hannelore Schuster