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

[2016] AATA 866

Hmura and Secretary, Department of Social Services (Social services second review) [2016] AATA 866 (1 November 2016)

Division	GENERAL DIVISION
File Number(s)	2016/1403
Re	Ivan Hmura
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr L Bygrave, Member
Date	1 November 2016
Place	Sydney

The decision under review is affirmed.

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

Dr L Bygrave, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – application for the disability support pension refused – whether applicant’s conditions were fully diagnosed, treated and stabilised – whether applicant’s impairments are rated 20 points or more under the Impairment Tables – coronary artery disease awarded 10 points under Table 1 – upper limb condition awarded 5 points under Table 2 – 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 L Bygrave, Member

1 November 2016

INTRODUCTION

1. On 4 May 2015, Mr Ivan Hmura lodged a claim for the disability support pension.

2. The claim was rejected by Centrelink, both initially and on review, on the basis that Mr Hmura did not satisfy the requirements of s 94 of the Social Security Act 1991 (Cth) (the Act).

3. In a decision dated 3 February 2016, the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal found that Mr Hmura did not satisfy s 94(1)(b) of the Act and so he did not qualify for the disability support pension.

4. On 21 March 2016, Mr Hmura applied to the General Division of the Administrative Appeals Tribunal for a review of the SSCSD decision.

5. The matter was heard in Sydney on 18 October 2016. Mr Hmura was self-represented and gave sworn evidence at the hearing by telephone.

   RELEVANT LEGISLATION AND ISSUES

6. Section 94(1) of the Act provides that a person qualifies for the 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)the person has a continuing inability to work as defined in s 94(2) of the Act.

7. In accordance with the requirements of the Social Security (Administration) Act 1999 (Cth), to qualify for the disability support pension, Mr Hmura must satisfy the requirements of s 94 of the Act as at the date of his claim or within 13 weeks of lodging the claim, that is, between 4 May 2015 and 3 August 2015 (the claim period).

8. The Respondent concedes and the Tribunal agrees that Mr Hmura suffers medical conditions that cause impairment and therefore, he satisfied s 94(1)(a) of the Act at the time of his claim for the disability support pension.

9. It follows that the determinative issues in this matter are whether, during the claim period, Mr Hmura had:

   (a)an impairment rating of 20 points or more under the Impairment Tables; and

   (b)a continuing inability to work as defined in s 94(2) of the Act.

   Does Mr Hmura have medical conditions that can be rated at 20 points or more under the Impairment Tables?

10. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables Determination) requires that an impairment rating can only be assigned if the condition causing that impairment is ‘permanent’. As set out in paragraph 6(4) of the Impairment Tables Determination, a condition is permanent if it:

    ·has been fully diagnosed by an appropriately qualified medical practitioner; and

    ·has been fully treated; and

    ·has been fully stabilised; and

    ·is more likely than not to persist for more than two years.

11. The Impairment Tables describe functional activities, abilities, symptoms and limitations; and are designed to assign ratings to determine the level of functional impact of impairment.

12. The Introduction to each relevant Table requires that ‘[s]elf-report of symptoms alone is insufficient’ and ‘[t]here must be corroborating evidence of the person’s impairment’.

13. Relevantly, the Introduction to Table 5 of the Impairment Tables Determination, which is to be used where a person has a permanent condition resulting in functional impairment due to a mental health condition, also 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 by a psychiatrist)’.

14. Relying on the evidence before me, I consider that Mr Hmura’s medical conditions for the purposes of his claim for the disability support pension are:

    ·coronary artery disease;

    ·avulsion injury to right thumb – upper limb condition;

    ·hernia;

    ·other conditions including a mental health condition, diabetes, high cholesterol and hearing loss.

15. I now consider each of these medical conditions and their relevant rating under the Impairment Tables.

    Coronary artery disease

16. The medical report for disability support pension completed by Dr Virginia Figueroa-Tamayo (General Practitioner) on 2 May 2015 diagnosed Mr Hmura with coronary artery disease.

17. Dr Mahidi Mardini (Consultant and Interventional Cardiologist), in a report dated 20 April 2015, stated that Mr Hmura had a ‘[h]istory of significant coronary artery disease with significant lesions in the circumflex and right coronary artery with only mild to moderate LAD disease’. The report further noted that Mr Hmura has had ‘successful stenting to both his circumflex branches’ and described his medication.

18. Dr Mardini also provided reports in relation to Mr Hmura’s coronary artery disease on 16 May 2015 and 19 June 2015, which further support this diagnosis and treatment.

19. At the Tribunal hearing, Mr Hmura stated that he is able to undertake tasks around the house such as vacuuming, cleaning the dishes and putting clothes on the line. He is able to walk to the local shops unassisted, which is approximately 200-300 metres from his house. Mr Hmura also stated that he suffers from pain in his chest and has difficulties with breathing.

20. Based on the medical evidence before me, I am satisfied that Mr Hmura’s coronary artery disease was fully diagnosed, fully treated and fully stabilised during the claim period. In accordance with the information at Table 1 – Functions requiring Physical Exertion and Stamina, I find that Mr Hmura’s condition has a moderate functional impact on activities requiring physical exertion or stamina and I assign an impairment rating of 10 points.

    Upper limb condition

21. The medical report for disability support pension completed by Dr Figueroa-Tamayo on 2 May 2015 diagnosed Mr Hmura with an avulsion injury to the right thumb. In a further report dated 9 August 2015, Dr Figueroa-Tamayo describes this condition as having the following functional impact: ‘[reduced] power/strength on right thumb/right hand’.

22. Mr Hmura told the Tribunal that he is able to use his right hand but not for long periods of time. He can use a pen or pencil with his fingers and is able to turn pages of a book. I note that Mr Hmura’s evidence to the SSCSD was that he could lift a 1 litre container, unscrew a lid of a bottle with his left hand and handle bulky items.[1]

    [1] Exhibit T1:T2 (p 7).

23. Based on the medical evidence before me, I am satisfied that Mr Hmura’s upper limb condition was fully diagnosed, fully treated and fully stabilised during the claim period. In accordance with the information at Table 2 – Upper Limb Function, I find that Mr Hmura’s condition has a mild functional impact on activities using hands or arms and I assign an impairment rating of 5 points.

    Hernia

24. The medical report by Dr Figueroa-Tamayo on 2 May 2015 noted Mr Hmura suffered from ‘left inguinal hernia and varicocele and right inguinal hernia’, which are ‘medical conditions that are generally well managed and that cause minimal or limited impact on [his] ability to function’.

25. A report by Dr David Ende dated 6 March 2014 stated that Mr Hmura has ‘small bilateral inguinal hernias’ and proposed further discussion about surgery to his hernia or natural therapies such as acupuncture that may have benefits.

26. A bilateral groin ultrasound undertaken by Dr Caitlin Kapoor on 31 March 2016 concluded Mr Hmura had ‘[b]ilateral reducible fat containing inguinal hernias’. I note that this report was undertaken more than seven months after the claim period finished.

27. Mr Hmura told the Tribunal that pain is always present because of his hernias. He avoids lifting heavy objects and often has to shift positions to ease the pain. He also said that he is likely to have an operation at some time in the future.

28. Based on the medical evidence before me, I am satisfied that Mr Hmura’s hernia was fully diagnosed, but not fully treated and fully stabilised during the claim period. As I am not satisfied that his condition was permanent during the claim period, I cannot assign an impairment rating.

    Other conditions

29. At the Tribunal hearing, Mr Hmura said that he has other medical conditions including diabetes, high cholesterol, hearing loss and PTSD (post traumatic stress disorder).

30. The JCA report dated 13 July 2015 noted that Mr Hmura was diagnosed with diabetes (non-insulin dependent) in 2007. Mr Hmura told the Tribunal that his diabetes is managed by medication and eating sweets if his sugar levels fall. As there is limited medical evidence before the Tribunal, I cannot be satisfied that this condition was fully diagnosed, treated and stabilised during the claim period as required by the Impairment Tables Determination. I therefore cannot assign an impairment rating.

31. Mr Hmura told the Tribunal that he suffers from high cholesterol, although his most recent test reported his cholesterol was at regular levels. There is no medical evidence before the Tribunal and so I am not satisfied that this condition was fully diagnosed, treated and stabilised during the claim period as required by the Impairment Tables Determination. I therefore cannot assign an impairment rating.

32. A report from Mr Tony Khairy (Clinical Audiometrist) dated 9 May 2016 concluded that Mr Hmura has ‘bilateral mild sensorineural hearing loss worse for the high tones’ and is ‘currently making use of bilateral hearing aids to reduce the annoyance of tinnitus’. As this report was undertaken nine months after the claim period finished, I cannot be satisfied Mr Hmura’s hearing condition was fully diagnosed, treated and stabilised during the claim period as required by the Impairment Tables Determination. I therefore cannot assign an impairment rating.

33. A report by Ms Jennifer Anderson (Psychologist) on 11 April 2013 stated that Mr Hmura’s ‘psychological symptomology including PTSD continues to negatively affect his day to day functioning and feelings of coping’ and causes problems with sleeping. I note that Ms Anderson is not a clinical psychologist or psychiatrist, as required by the Impairment Tables, and so I cannot be satisfied that Mr Hmura’s PTSD was fully diagnosed, treated and stabilised during the claim period. For this reason, Mr Hmura’s condition cannot be considered permanent during the claim period and cannot be rated under the Impairment Tables.

    CONCLUSION

34. For the reasons set out above, I am satisfied that Mr Hmura did not meet the requirements of s 94(1)(b) of the Act during the claim period as his impairments were not 20 points or more under the Impairment Tables.

35. As I find that Mr Hmura did not qualify for the disability support pension during the claim period, it is not necessary for me to consider whether he had a continuing inability to work.

36. If Mr Hmura’s circumstances change, he is entitled to submit a new application for the disability support pension at any time.

    DECISION

37. The decision under review is affirmed.

I certify that the preceding 37 (thirty -seven) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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

Associate

Dated 1 November 2016

Date(s) of hearing	18 October 2016
Applicant	By phone
Solicitors for the Respondent	S Heithersay, Department of Human Services