Milan Spasic and Secretary, Department of Social Services
[2014] AATA 203
[2014] AATA 203
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/5839
Re
Milan Spasic
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Mr S. Webb, Member
Date 8 April 2014 Place Perth The decision under review is affirmed.
....(Sgd) S Webb..............
Mr S. Webb, Member
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – impairments – requirement for 20 or more impairment points not satisfied – decision affirmed
LEGISLATION
Social Security Act 1991, s 94
Social Security (Administration) Act 1999, Schedule 1
REASONS FOR DECISION
Mr S. Webb, Member
8 April 2014
Milan Spasic suffers from several ailments. He suffered a heart attack and ceased work as a welder in the building industry. He claimed and was paid Disability Support Pension (DSP) for a number of years, but this was cancelled on review for indefinite portability – Mr Spasic wanted to return to Serbia to be with members of his family. Unhappy with this decision, he pursued the matter to the Social Security Appeals Tribunal, but without success. He applied for review.
The issue for determination is whether the decision to cancel Mr Spasic’s DSP is the correct or preferable decision. The matter is to be determined under s 94 of the Social Security Act 1991 (the Social Security Act), which sets out three essential criteria –
(a)whether Mr Spasic suffers from one or more physical, intellectual or psychiatric impairments; and if so
(b)whether the impairments are of 20 or more impairment points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination); and if so
(c)whether the impairments cause a continuing inability to work 15 or more hours per week.
As Centrelink cancelled Mr Spasic’s DSP on 22 November 2012, it is necessary to determine whether or not he satisfied each criterion on that day. If he did not, the decision will be affirmed.
Impairments
Mr Spasic explained the various ailments he suffers from. I have considered the medical reports and other documentation in evidence. I am satisfied that he suffers from the following medical ailments –
(a)ischaemic heart disease;
(b)left shoulder rotator cuff injury;
(c)partial bi-lateral hearing loss;
(d)presbyopia;
(e)plantar faciitis;
(f)gastro-oesophageal reflux disease; and
(g)major depressive disorder with anxiety.
These ailments are productive of or themselves constitute ‘physical, intellectual or psychiatric impairments’ for the purposes of s 94(1)(a).
Impairment ratings
When it comes to rating Mr Spasic’s impairments under the Determination, it is necessary to proceed according to the Rules set out in Part 2. Attention is directed at this point to the ‘functional impact of impairment’ rather than to the assessment of ‘conditions’ – the assessment of functional capacity in respect of an impairment ‘must be assessed on the basis of what the person can do, or could do, not on the basis of what the person chooses to do, or what others do for the person’.
For this reason it is necessary to identify the functional impairments arising from each condition.
Importantly, an impairment rating may only be assigned if the condition causing the impairment is ‘permanent’ and the impairment is likely to persist for more than two years.
Under Rule 6, for a condition to be permanent, it must be ‘fully diagnosed’, ‘fully treated’, ‘fully stabilised’ and likely to persist for more than two years. When determining whether a condition is fully diagnosed and fully treated the following are to be considered –
(a)Whether there is corroborating evidence of the condition;
(b)What treatment or rehabilitation has occurred in relation to the condition; and
(c)Whether treatment is continuing or is planned in the next two years.
A condition is fully stabilised if –
(a)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 within two 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 two 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.
The steps to be followed when assigning an impairment rating are set out in Rule 10 - the functional loss must be identified, then the relevant Table selected and finally the appropriate rating assigned. Where multiple conditions cause the same impairment, a single rating should be assigned under a single Table.
Ischaemic heart disease
There is no dispute, and the present evidence establishes, that Mr Spasic’s ischaemic heart disease was fully diagnosed, treated and stabilised, and permanent as of 22 November 2012. Mr Spasic underwent a heart bypass surgery December 2008. Thereafter, he has been treated with pharmacological medications. In 2009, Dr Todorovic, Mr Spasic’s then treating general practitioner, reported that the condition may deteriorate over the next five years.[1]
[1] T10 folio 45.
The functional impairment caused by this condition is shortness of breath on exertion. On 31 October 2012, Dr Walawski reported that Mr Spasic’s cardiac condition prevented him from undertaking “minimal” activities, but he experienced occasional difficulty with lethargy and shortness of breath with exertion “stairs, vacuuming”, and when performing household duties.[2]
[2] T18 folio 80.
On this evidence, which I accept, the functional impairments flowing from Mr Spasic’s heart condition are consistent with a mild functional impact under Table 1 of the determination. They are consistent with the criteria set out in 1(a) of that Table and are assigned 5 impairment points.
Left shoulder rotator cuff injury
The existence of a rotator cuff injury to Mr Spasic’s left shoulder is well documented – a full thickness tear of the left anterior supraspinatus tendon.[3] This was diagnosed on 5 March 2009 and subsequently treated. It was expected to persistent for more than five years with some fluctuation of effect on Mr Spasic’s ability to function. On 31 October 2012, Dr Walawski reported that it was intermittent.
[3] T10 folio 46.
The Secretary accepted that this condition was permanent as of 22 November 2012. On the present evidence that is correct.
The functional impairment arising from this condition is difficulty with activity above shoulder height, reaching out to pick up objects and lifting heavy objects.[4]
[4] T14 folio 59; T10 folio 48.
This level of functional impairment is consistent with the criteria at the 5 point level under Table 2. Accordingly, a rating of 5 impairment points is assigned.
Partial bi-lateral hearing loss
Mr Spasic uses hearing aids bilaterally, and has done so for a number of years. His hearing loss was recorded as 19.7 percent hearing loss in 2009.[5] This condition is correctly accepted as permanent for the purposes of the Determination.
[5] Exhibit 7.
The functional loss it causes has been described as difficulty hearing a conversation in a room or on the telephone in the presence of background noise.
This is consistent with the criteria for a mild functional impact under Table 11. Accordingly, a rating of 5 impairment points is assigned.
Presbyopia
This condition is documented in the materials before me.[6] As with many people over 40 years of age, Mr Spasic’s eyesight has deteriorated over time. He wears spectacles, but there is no evidence of him experiencing difficulties with his vision when doing so.
[6] T11 folio 51.
There is very scant documentary evidence about this condition.
Even if it were to be accepted as permanent for present purposes, the present evidence does not establish that is caused any significant functional impact on Mr Spasic’s activities as of 22 November 2012.
That being so, it would attract a 0 rating under Table 12.
Plantar faciitis
Mr Spasic has been complaining of left foot pain for several years.[7]
[7] See T9 folio 38 for example.
In his report on 31 October 2012, Dr Walawski reported a possible diagnosis of plantar fsciitis in Mr Spasic’s left foot. This appears to be a provisional diagnosis – it is preceded by a question mark. On 24 January 2014, Dr Walawski referred Mr Spasic for specialist evaluation in respect of “chronic recurrent R plantar faciitis with presence of small spur”.[8]
[8] Exhibit 13.
On this basis, it appears that whatever the cause of the left foot pain of which Mr Spasic has complained, no clear diagnosis had been made by 22 November 2012. That being so, I am unable to find that this condition was fully diagnosed, treated and stabilised, and ‘permanent’ at that time.
Accordingly, it cannot be assigned an impairment rating other than 0.
Gastro-oesophageal reflux disease
Mr Spasic told me that he has suffered from reflux for some time; he could not recall when this condition first troubled him. I note that he referred to this condition in 2009.[9] There is evidence of helicobacter pylori eradication in June 2010.[10]
[9] T9 folio 38.
[10] Exhibit 8.
On 31 October 2012, Dr Walawski referred to this condition as generally well managed and causing minimal or limited impact on ability to function.[11] There is little more to go on in the present materials.
[11] T17 folio 76.
Accordingly, I am not able to conclude that this condition was fully treated and stabilised as of 22 November 2012, such that it can be considered permanent at that time.
For this reason I am unable to assign an impairment rating other than 0.
Respiratory disease, asthma, emphysema, pulmonary fibrosis
Mr Spasic has complained of respiratory symptoms for several years. He is a reformed smoker. He has been investigated for cardiopulmonary disease, as well as asthma.[12]
[12] Exhibits 5, 6, 8, 9 and 14.
These investigations occurred well after 22 November 2012. Accordingly, it cannot be said that whatever respiratory condition Mr Spasic was suffering from at that time was fully diagnosed, treated and stabilised, or permanent for the purposes of the Determination.
For this reason, I am unable to assign an impairment rating other than 0.
Major depressive disorder with anxiety
Mr Spasic complained of increasing depressive symptoms in recent years.
Dr Todorovic reported that the onset of this condition was January 2009 and that it was first diagnosed in September of that year.[13] At that time, treatment was Sertraline (an anti-depressant medication) and, prospectively, counselling. The functional impacts of this condition, “Decreased concentration. Difficulties communicating”, were expected to persist for more than two years, with some fluctuation.
[13] T6 folio 23.
On 31 July 2012, Dr Todorovic reported that Mr Spasic’s depression was generally well managed and causing minimal or limited impact on his ability to function.[14] Treatment at that time was Endep, another anti-depressant medication.
[14] T10 folio 49.
On 31 October 2012, Dr Walawski reported “Anxiety – largely regarding ongoing cardiac health”, with onset on 25 November 2008.[15] Treatment was said to be “currently referred under a Mental Health Care Plan for psychological support & CBT to assist cognitive function”.
[15] T17 folio 73.
On 27 November 2012, Richard Midford, a clinical psychologist, reported that he had assessed Mr Spasic on 6 and 20 November 2012 and found that Mr Spasic was “severely depressed, extremely severely anxious and mildly stressed”.[16] Mr Midford did not recommend a treatment regimen and he did not indicate whether the condition was likely to respond to treatment. On 10 December 2012, Mr Midford recommended that Mr Spasic “continue receiving medical treatment from Dr Walawski and that he continue to receive psychological treatment for his depression and anxiety from myself”.[17]
[16] T27 folio 97.
[17] T29 folio 101.
On 2 January 2013, Dr Golic, a consultant psychiatrist, provided a report to Dr Walawski in which he diagnosed Major depressive Disorder with anxiety. He noted that “you have started him on Lexapro 10mg” and recommended that Mr Spasic “continues to see his clinical psychologist on a regular, fortnightly basis. In addition I have prescribed Avanza 30mg nocte which would assist with sleep and help with underlying irritability and depression”.[18]
[18] Exhibit 3.
I am satisfied on Dr Golic’s evidence that Mr Spasic’s depression and anxiety were not fully treated and stabilised as of 22 November 2012, albeit that these conditions were previously diagnosed following onset at the end of 2008 or the start of 2009.
This being so, I am compelled to conclude that the condition was not permanent and it cannot be assigned a rating under Table 5 other than 0 impairment points.
Impairment points
Considering all of Mr Spasic’s medical conditions under the Determination, I am satisfied that his impairments attract a rating of 15 impairment points as of 22 November 2012.
It follows, that he does not satisfy the requirements of s 94(1)(b) and he did not qualify for DSP at that time. For this reason, the decision to cancel his DSP was correct.
This means that the decision under review must be affirmed.
It is not necessary to proceed further to determine whether or not he has a continuing inability to work, or whether he has undertaken a program of support.
I certify that the preceding 48 (forty -eight) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member
....(Sgd) T Freeman................
Associate
Dated 8 April 2014
Date(s) of hearing 3 April 2014 Applicant In person Advocate for the Respondent Ms S Vahala Solicitors for the Respondent Australian Government Solicitor
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