Ivan Hmura and Secretary, Department of Social Services
[2014] AATA 525
[2014] AATA 525
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/4566
Re
Ivan Hmura
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Senior Member J F Toohey
Date 31 July 2014 Place Sydney The decision under review is affirmed.
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Senior Member J F Toohey
CATCHWORDS
SOCIAL SECURITY – disability support pension – cancellation – multiple impairments – whether conditions fully diagnosed treated and stabilised – decision under review affirmed
LEGISLATION
Social Security Act 1991 s 27(3), 94
Social Security (Administration) Act 1999 s 42 and Sch 2
SECONDARY MATERIAL
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Senior Member J F Toohey
BACKGROUND
Mr Ivan Hmura suffers from multiple impairments. In December 2000, he was granted a Disability Support Pension (DSP) having been assessed as qualifying for the pension due to his coronary artery disease, avulsion injury to right thumb and inguinal hernia. In December 2012, Mr Hmura contacted Centrelink advising of his intention to go to Croatia indefinitely. Centrelink records show that he requested an assessment of his medical conditions to determine whether he qualified to continue to receive DSP while overseas, as required by the legislation.
Centrelink reviewed Mr Hmura’s pension in May 2013 and decided that his coronary artery disease and inguinal hernia were not permanent conditions for the purposes of qualifying for DSP, , and could therefore not be given an impairment rating. Centrelink further decided that he was not impaired by his other conditions to the extent necessary to qualify for DSP. On 25 February 2013, Mr Hmura’s pension was cancelled. In July 2013, the Social Security Appeals Tribunal (SSAT) affirmed that decision.
To qualify for DSP, Mr Hmura must satisfy the criteria in s 94 of the Social Security Act1991 (the Act). In particular, he must have:
(i)a physical, intellectual or psychiatric impairment, or impairments, which are rated at 20 or more points according to the Impairment Tables in the Act; and
(ii)a continuing inability to work as defined in the Act.
Since Mr Hmura was first granted DSP in 2000, there have been amendments to the Act. I have to decide whether Mr Hmura qualified for DSP on the date of cancellation on 25 February 2013, which will depend on whether he satisfies the criteria in the Act at that time. In particular, it will depend on whether his conditions were considered permanent and whether the severity of his impairments were such that they rated 20 points on the Impairment Tables. The Impairment Tables to be used to assess Mr Hmura’s impairments are the relevant Tables in force at the time Centrelink commenced a review of his eligibility for DSP: s 27 (3).
For the following reasons, I am not satisfied that Mr Hmura qualified for the DSP on 25 February 2013.
THE IMPAIRMENT TABLES
The Impairment Tables are used to assess the impact of impairment on a person’s functional capacity. The Tables are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011. Clause 6 of the Determination sets out how the Tables are to be applied.
An impairment rating can only be assigned if:
(a)the condition causing that impairment is permanent; and
(b)the impairment is more likely than not to persist for more than 2 years.
A condition is permanent for the purposes of the Impairment Tables if it has been fully diagnosed by an appropriately qualified medical practitioner; and it has been fully treated and fully stabilised; and it is more likely than not, in light of available evidence, to persist for more than 2 years: cl 6(4).
In determining whether a condition has been fully diagnosed and fully treated, the following must be considered:
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
A condition is fully stabilised if:
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i)significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
MR HMURA’S MEDICAL CONDITIONS
Mr Hmura suffers from an avulsion to right thumb injury, inguinal hernia, type II diabetes mellitus, hypercholesterolemia, depression and coronary artery disease. I am satisfied that each of his conditions is an impairment for the purposes of DSP. I will deal with them in turn.
EVIDENCE ABOUT MR HMURA’S MEDICAL CONDITIONS
The medical evidence concerning Mr Hmura’s medical conditions comprises:
(i)Dr Naeem Hanna, report dated 16 October 1995;
(ii)Dr Manal Rezk, medical certificate dated 5 August 1998;
(iii)Dr Nagy Wassef, medical certificates dated 28 September 1998 and 12 January 1999;
(iv)Dr Charles Ong, treating doctor’s reports dated 16 April 1999, 19 November 1999, 7 November 2000, 26 November 2002, 20 September 2005 and 22 December 2008, medical certificates dated 25 June 1999 and 24 September 1999, 18 February 2000, 10 March 2000, 22 September 2000;
(v)Dr Aaron Yeung, cardiology reports dated 24 May 2007 and 18 December 2007;
(vi)Dr Ee-May Chia, cardiology report dated 26 March 2007;
(vii)Dr Daryl Li, medical reports dated 10 December 2012 and 12 June 2014, medical certificate dated 1 March 2013, GP Mental Health Treatment Plan dated 7 March 2013;
(viii)Caitlin Kapoor, scrotal ultrasound report dated 7 March 2013;
(ix)Dr Mark Richardson, report dated 4 April 2013;
(x)Jennifer Anderson, reports dated 11 April 2013 and 12 December 2013;
(xi)Matthew Lee, left inguinal region ultrasound report dated 18 February 2014;
(xii)Dr Philip Vladica, report dated 12 November 2013;
(xiii)Dr David Ende, report dated 9 October 2013 and 6 March 2014;
(xiv)Dr Mahidi Mardini, report dated 24 February 2014;
(xv)Dr Jay Thakkar, report dated 7 July 2014.
Centrelink has provided a report of a Job Capacity Assessment on 18 January 2013.
Right thumb injury
Mr Hmura suffered a crush injury to his right thumb in February 1996. The injury causes pain down his arm to his thumb. It has affected his ability to grasp, lift and carry items, and has reduced his dexterity, hand strength and flexion. Centrelink and the SSAT agree Mr Hmura’s thumb injury attracts an impairment rating of five points on Table 2 – Upper Limb Function.
Mr Hmura gave evidence that he gets pain going up his arm after five to ten minutes of using his hand for activities such as slicing bread or eating with a spoon. He gets nerve pain, his hand gets hot and is very uncomfortable, and he cannot bend his thumb. He can use his hand to pick up and carry items but not for too long, and not heavy objects; he has some difficulty picking up small objects such as coins and doing up buttons; he can manage to take the lid off a bottle and can pick up a cardboard box; he is able to do up his shoelaces but sometimes needs help. When asked whether he could manage most daily activities but has some difficulty with a few tasks, Mr Hmura agreed “exactly”. He went on to say that he could do most tasks around the house but he would have difficulty working.
Taking into account that Mr Hmura can manage most daily activities requiring the use of his upper limbs, but has some difficulty with tasks such as picking up heavy objects or handling small items, I find his thumb injury results in mild functional impact and so rates five points.
Inguinal hernia
Mr Hmura was diagnosed with a left inguinal hernia in 1995. Dr Hanna reported on 16 October 1995 that his condition prevented Mr Hmura from standing for a long time, walking long distances, bending and carrying weights.
Dr Ong completed a Treating Doctor’s Report (TDR) on 20 September 2005 in which he noted Mr Hmura’s inguinal hernia was well managed and caused minimal or limited impact on his ability to function. Dr Ong noted the condition may need surgery and that significant improvement was expected. The same opinion was provided by Dr Ong in a TDR completed in December 2008.
Dr Li noted in a report dated 10 December 2012 that Mr Hmura suffered a left inguinal hernia which was well managed and caused minimal or limited impact on his ability to function.
In March 2013, Mr Hmura had an ultrasound of his groin which revealed “[l]eft sided varicocele” (in his scrotum) and “[b]ilateral incidental groin hernias”. Mr Hmura was referred to Dr Mark Richardson, upper gastrointestinal surgeon, who reported on 4 April 2013 that, upon examination, he could not detect an inguinal hernia but he found a varicocele. He wrote that he thought Mr Hmura’s symptoms related to his varicocele and that he may not have clinically significant herniae. He referred Mr Hmura to Dr Ende, a urological surgeon.
On 9 October 2013, Dr Ende confirmed the diagnosis of varicocele and recommended treatment which was undertaken by Dr Phillip Vladica, who reported on 12 November 2013 that Mr Hmura’s treatment had been completed without complication.
In a report dated 6 March 2014, Dr Ende wrote that Mr Hmura still feels pain in his left groin following treatment for his varicocele, and that the pain radiates a little higher into his abdomen. Dr Ende referred to the ultrasounds demonstrating “small bilateral inguinal hernias” but reported that he found “no significant abnormality… that could account for [Mr Hmura’s] pain” on examination. He detected a “small defect in the left inguinal region consistent with a hernia” but thought this would not be causing discomfort. Dr Ende suggested a further referral to Dr Richardson.
It was not clear, from talking with him at the hearing, whether Mr Hmura continued to suffer from an inguinal hernia when his DSP was cancelled or whether his symptoms were due to other medical conditions in his groin. Mr Hmura was given an opportunity to obtain more information about his inguinal hernia which might assist in determining whether his condition was diagnosed on the date his pension was cancelled, and whether his condition could be considered fully treated and stabilised at that time.
Mr Hmura obtained a report from Dr Li dated 12 June 2014 which referred to an ultrasound report of his left inguinal region performed on 18 February 2014 that concluded Mr Hmura had an “indirect inguinal hernia which contains fat and is reducible”. In his report, Dr Li noted Mr Hmura complains of intermittent pain, he was not receiving any treatment, and that he was going to refer him to surgeon Dr Richardson. With regard to the effect of the hernia on Mr Hmura’s functional capacity, Dr Li wrote “may be the only restriction is heavy lifting until specialist review”.
It is unclear whether Mr Hmura’s inguinal hernia was diagnosed on the date of cancellation of his DSP. Dr Richardson referred to the ultrasound findings (although he did not view the images) and, although herniae were reported in the ultrasound, he was still of the opinion that Mr Hmura may not have herniae. However, even if I accept Mr Hmura’s inguinal hernia was diagnosed at the date of cancellation of his DSP, it cannot be given an impairment rating as it cannot be considered fully treated and stabilised given Dr Li’s referral for specialist review.
Hypercholesterolemia (also called dyslipidemia or high blood cholesterol) and type II diabetes mellitus
Mr Hmura takes Atrovastatin to lower his cholesterol, and Metformin and Diamicron for his diabetes. He agreed that these conditions do not affect his physical functioning. He gave evidence that he can function normally around the house and when he is out shopping but he has to be very careful about taking his medication, and diet and exercise.
I am satisfied Mr Hmura’s diabetes and cholesterol were fully diagnosed, treated and stabilised when his pension was cancelled but, on his evidence, neither condition affects his ability to function, other than a need to be vigilant in taking his medication and monitoring his sugar levels. These conditions are therefore rated nil on the impairment tables.
Psychiatric condition
In March 2013, Dr Li completed a GP Mental Health Treatment Plan noting Mr Hmura suffered from depression but was currently not on medication. He reported Mr Hmura had discontinued taking medication for his psychiatric condition in 2011, which Dr Li says was post-traumatic stress disorder (PTSD) caused by his experiences of war in Croatia. Dr Li noted on the Plan a requirement for diagnostic assessment, cognitive behavioural therapy and counselling.
Upon referral from Dr Li, Mr Hmura saw Jennifer Anderson, psychologist, for five sessions commencing on 20 March 2013. Ms Anderson wrote on 11 April 2013 that Mr Hmura reported he has PTSD which negatively impacts his daily functioning and ability to cope. In her report dated 12 December 2013, Ms Anderson wrote that Mr Hmura reported symptomology consistent with PTSD as a result of the war but, since coming to Australia, some of his symptoms have abated, but he still suffers sleep disturbance, panic, sadness and depression. Ms Anderson says Mr Hmura’s daily functioning is affected as he “requires a lot of energy and self-management of his psychological symptomology”.
The amendments to the Act in July 2012 introduced the requirement that, where a person claims DSP for a “mental health condition”, the condition be diagnosed 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)”. Ms Anderson is not a clinical psychologist and there is no record of a diagnosis having been made by a relevant qualified medical practitioner. Mr Hmura’s psychiatric condition therefore cannot be considered fully diagnosed when his pension was cancelled and cannot be given an impairment rating.
Coronary artery disease
Medical history
Mr Hmura has suffered from a heart condition since 1998 which has been described in the various medical reports as ischaemic heart disease, angina and coronary artery disease (which I understand to be the same diagnosis). He has been under the care of cardiologist, Dr Mahidi Mardini, since 1999. In 2007 he underwent surgery at Westmead Hospital to have stents inserted. Following his surgery, Mr Hmura was put on a care plan for his heart, hyperlipidomeia and diabetes, (the latter two conditions I understand to affect his heart) which included medication, exercise and regular blood tests.
In December 2012, Dr Li reported Mr Hmura had undergone “coronary artery bypass graft” surgery on 28 November 2012. He listed Mr Hmura’s current treatment as medication, physiotherapy and a cardiac rehabilitation program. Dr Li wrote that Mr Hmura’s condition affected his endurance and movement, and he had shortness of breath. His condition was likely to persist for more than five years and his heart condition was expected to either remain unchanged or deteriorate depending on how successful the bypass surgery was and how well he managed his diabetes and lifestyle changes.
On 24 February 2014, Dr Mardini reported Mr Hmura had a history of significant coronary artery disease and that he had undergone successful surgery. He had a history of very significant hyperlipidaemia, as well as hypertension, for which he was on medical therapy. Dr Mardini noted Mr Hmura claimed to be “very well”, his treatment would remain unchanged, and that he was scheduled to have a stress echocardiogram.
Dr Jay Thakkar, cardiologist, provided a report dated 7 July 2014. Dr Thakkar explained that Mr Hmura was a long-term patient of Dr Mardini but, as Dr Mardini was not available to provide the information requested by the Tribunal in the prescribed time, he had written his report based on the records held in the practice and tests performed at a consultation on 7 July 2014. Dr Thakkar reported Mr Hmura complained of shortness of breath on exertion (“exertional dyspnoea”) which has remained stable for some time, and he did not suffer from any other respiratory distress or symptoms associated with heart disease; his test results were “reassuring” and, from a cardiac viewpoint, he is stable and the “best he can be”. Dr Thakkar wrote that Mr Hmura will need secondary prevention medications indefinitely which I take to mean medication to control his diabetes and hyperlipodaemia.
Based on Dr Thakkar’s evidence that Mr Hmura must take multiple medications for his heart condition to remain stable, and his condition is the best it will be, I am satisfied his heart condition was fully diagnosed, treated and stabilised when his pension was cancelled. His heart condition can therefore be given an impairment rating using Table 1 – Functions requiring Physical Exertion and Stamina.
Dr Thakkar reports Mr Hmura was coping reasonably well with activities of daily living, that he is independent in self-care and can walk on the flat at a slow pace. The results of his exercise stress test showed 0% functional aerobic impairment and no reported chest pain.
Prior to Dr Thakkar’s report (and prior to his surgery), the medical records state “shortness of breath”, “chest pain” and “reduced endurance” as the functional impacts of his heart condition.
Consideration
Taking into account the severity and frequency of Mr Hmura’s symptoms of shortness of breath and fatigue, I find his heart condition has a functional impairment of somewhere between mild and moderate (five to ten points). The rules for applying the impairment tables instruct that when a rating falls between two impairment ratings, the lower of the two ratings is to be assigned: cl 11(1)(c). I therefore find that Mr Hmura’s heart condition rates five points on the impairment tables, but even if his condition did rate ten points, his total rating would only be 15 and he still would not qualify for DSP at the date of cancellation of his pension.
CONCLUSION
Mr Hmura’s combined impairment rating during the relevant period is 10 points. Because I find that his impairments did not rate 20 or more points on the Impairment Tables at the relevant time, it is not necessary to consider whether he also has a continuing inability to work.
I affirm the decision under review.
41. I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Ms J Toohey, Senior Member.
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Associate
Dated 31 July 2014
Date(s) of hearing 15 May 2014 Representative for the Applicant Self-represented Representative for the Respondent Ms A Garcia, Advocate
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