Vaneski and Secretary, Department of Social Services [2014]
Oct 10, 2014 19:23:40 GMT 7
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Vaneski and Secretary, Department of Social Services [2014] AATA 728 (7 October 2014)
Last Updated: 9 October 2014
[2014] AATA 728
Division
GENERAL ADMINISTRATIVE DIVISION
File Number(s)
2013/6691
Re
Darko Vaneski
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal
Mr C Ermert, Member
Date
7 October 2014
Place
Melbourne
The Tribunal sets aside the decision under review and substitutes the decision that Mr Vaneski can be paid disability support pension for an unlimited period during continuous absence from Australia.
........[sgd]..........................................
Mr C Ermert, Member
SOCIAL SECURITY – Disability Support Pension – unlimited portability – severe impairment – inability to work independently of program of support – decision set aside
Legislation
Social Security Act 1991 sections 94, 1217, 1218AAA
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Mr C Ermert, Member
7 October 2014
INTRODUCTION
In 1997 Mr Vaneski, the Applicant, suffered a workplace accident. He received disability support pension (DSP) payments from 30 December 2010 to 27 June 2011, and again from 21 December 2011. On 13 December 2012 he advised Centrelink that he intended to travel to Macedonia in February 2013. He requested an assessment for the purpose of an unlimited portability period for his DSP payments. Centrelink is the service provider for the Department of Social Services, the Respondent.
On 27 December 2012 Mr Vaneski lodged the relevant application forms together with medical reports from a psychiatrist and a psychologist. On 14 January 2013 a Job Capacitor Assessor (JCA) assessed that Mr Vaneski’s conditions attracted an impairment rating of 10 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) and that Mr Vaneski was capable of working 15 to 22 hours per week within the next two years.
On the basis of the JCA’s assessment, a Centrelink officer decided to cancel Mr Vaneski’s DSP as he no longer met the requirements. A Centrelink authorised review officer (ARO) set aside that decision and determined that Mr Vaneski had a work capacity of between 8 and 14 hours per week. On the basis of the assessed work capacity, the ARO decided that Mr Vaneski could not be given unlimited portability in regard to his DSP payments. On 20 August 2013 the Social Security Appeals Tribunal (SSAT) affirmed the ARO’s decision. This matter is an application for review of the SSAT’s decision.
THE HEARING
The hearing commenced on 1 July 2014. After hearing the evidence I adjourned the hearing until 30 September 2014 to allow Mr Vaneski time to obtain additional medical evidence and for both parties to consider that evidence.
Mr Vaneski represented himself at the hearing and gave evidence under oath with the assistance of an interpreter in the Macedonian language. Mr Tanevski, Mr Vaneski’s uncle, testified on behalf of Mr Vaneski.
Ms Bramley of the Department of Human Services represented the Respondent. I had before me the documents provided by the Respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents). I also had before me the Secretary’s Statement of Facts and Contentions dated 25 June 2014. Following the adjournment, I had before me the additional medical evidence, a medical report from Dr G Wahr dated 10 July 2014; and the Secretary’s submissions-in-reply to that medical report dated 23 July 2014.For the Applicant I took into evidence:
A letter from Dr J Ristevski, dated 19 September 2013 (Exhibit A1),
A letter from Mr Z Stojcevski, psychologist dated 16 September 2013 (Exhibit A2),
A report by Dr T Tan dated 13 November 2012 ( Exhibit A3),
A report by Dr G Cipurovski, Melbourne Back Care, dated 10 June 2014 (Exhibit A4), and after the adjournment,
A report by Dr Wahr, psychiatrist dated 10 July 2014 (Exhibit A5), and
A report by Mr Stojcevski dated 4 August 2014 (Exhibit A6).
THE LEGISLATION
The relevant legislation is contained in the Social Security Act 1991 (the Act) and the Impairment Tables.
THE ISSUES
Section 1217 of the Act provides for a maximum portability period of 6 weeks unless the person is terminally ill or severely impaired. There is no contention that Mr Vaneski is terminally ill. The issue in contention is whether Mr Vaneski is severely impaired in the terms of the Act.
The provisions regarding severe impairment are contained in section 1218AAA of the Act. This section allows the Secretary (and the Tribunal acting in the Secretary’s position) to determine that a person’s portability period for DSP payments is unlimited, if all of the following circumstances are met:
(a) The person is receiving disability support pension;
(b) The Secretary is satisfied that the person’s impairment is a severe impairment (within the meaning of subsection 94(3B));
(c) The Secretary is satisfied that the person will have that severe impairment for at least the next five years;
(d) The Secretary is satisfied that, if the person were in Australia, the severe impairment would prevent the person from performing any work independently of a program of support (within the meaning of subsection 94(4) within the next five years.
It is not contested that prior to leaving Australia Mr Vaneski was receiving DSP (subsection (a)) and that his medical conditions will continue for the next five years (subsection (c)).
The issues to be determined are whether Mr Vaneski’s impairment is severe (section 94(3B)), and whether he is able to work independently of a program of support for the next five years (section 94(4)).
THE EVIDENCE
Mr Vaneski stated that he notified Centrelink of his intention to go to Macedonia. He said that Centrelink stopped his DSP payments and told him he was able to work. He described how, at his former workplace, he was hit by a crane which damaged the side of his face. He said that, since then, he has not felt like a human being.
Mr Vaneski said he lived with an uncle and aunt. He said he has been stuck at home for years and that he goes nowhere. He said if he does go out he gets dizzy spells and feels that he will collapse and fall. He said every day he has pains in the chest and feels he is going to die.
Mr Vaneski said he does nothing other than sit or lie down. He said he does not get out past the front door. When asked why he does not go out, Mr Vaneski said that everything irritates him, nothing interests him, and although he used to go to the football he now feels he will collapse.
Mr Vaneski said he has no friends. He said he sometimes watches television programs in the Macedonian language. He said he often has to lie down as he feels ill and wants to sleep.
In answer to questions from Ms Bramley, Mr Vaneski stated:
His jaw always hurts, his neck hurts and he has pain everywhere;
His neck pain is associated with his work accident;
He sees Dr Ristevski each week or fortnight, sometimes twice a week;
His medications are Panadeine Forte for the pain and tablets for his nerves and stomach;
He sees his psychiatrist, Dr Wahr, because of the pain in his head, everything hurts, and he takes Zoloft and Seracol.
The conditions that affect him most are his jaw and his depression;
The worst condition is his head, his brain feels jammed, blocked, with sharp cutting pains across his head and a sensation like ants crawling inside his head;
He has been seeing his psychologist, Mr Stojcevski, for years; and still sees him every three to four weeks.
Mr Vaneski said he feels different when he is overseas. He said he has less pain and less pressure. He said he has seen many doctors in Macedonia and had x-rays and scans of his head.
When asked if his condition has changed since his application for DSP, Mr Vaneski said his condition remains the same. He said he has spent a lot of money on doctors but no-one has been able to help.
Mr Tanevski gave the following evidence:
Mr Vaneski has been living with him and his wife since before the accident;
Mr Vaneski’s condition is a lot worse than it was previously;
His wife constantly has to wash Mr Vaneski’s bed sheets as he sweats a lot;
Mr Vaneski does not always flush the toilet;
The situation is having an adverse effect on his wife’s health and she has started taking tablets for nerves because of Mr Vaneski;
They use a wheelchair for Mr Vaneski because if he walks around he breaks things;
If they take Mr Vaneski out on to the veranda he forgets to come in and would stay there all day;
He was hoping Mr Vaneski would help with his carpet cleaning business but all Mr Vaneski does is sleep;
In answer to questions from Ms Bramley, Mr Tanevski said:
He and his wife have to turn on the shower for Mr Vaneski, then help him to dress, otherwise he will just stop and stay that way;
He and his wife, and sometimes his son and cousin, take Mr Vaneski to the doctors;
They never let Mr Vaneski go out alone otherwise he might not get back to the house;
His wife cooks all the food for Mr Vaneski as they are afraid he might burn the house down;
He takes Mr Vaneski to his cousin’s house three times a week for three to four hours, but Mr Vaneski just sits there;
When Mr Vaneski travels overseas they take him to the airport, explain his condition to the attendants who look after him and then his brother-in-law meets him at his destination.
TRIBUNAL CONSIDERATIONS
The first issue I need to consider is whether Mr Vaneski’s impairments are severe in the terms of section 94(3B) of the Act. If I find that his impairments are severe I will go on to consider whether Mr Vaneski is able to work independently of a program of support for the next five years as prescribed in section 94(4) of the Act.
Section 94(3B) of the Act defines severe impairment as follows:
A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.
Psychological / Psychiatric Condition
In its Statement of Facts and Contentions, the Respondent accepts that Mr Vaneski suffers from a psychological or psychiatric condition variously labelled:
Anxiety with depression by Dr Ristevski in January 2008 and December 2010;
Anxiety depression panic attacks by Dr Ristevski in December 2011;
Chronic post-traumatic stress disorder by Dr Tipirneni in December 2012;
Chronic adjustment disorder depressive type with chronic pain syndrome by Dr Tipirneni in March 2013; and
Chronic pain disorder and chronic post-traumatic stress disorder by Mr Stojcevski in December 2012.
I note the following additional diagnoses:
Agitated depressive reaction and possibly a psychosis by Dr Wahr in July 2014 ; and
Chronic pain disorder by Mr Stojcevski in August 2014.
The relevant Impairment Table is Table 5: Mental Health Function (Table 5). The Introduction to Table 5 states 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).
In her submissions dated 23 July 2014, Ms Bramley contended that Mr Stojcevski’s diagnosis of chronic pain disorder has not been made by a psychiatrist. In addition, she contended that Dr Wahr’s diagnosis of a psychosis is not supported by evidence that the condition has been fully diagnosed and treated. In support of her latter contention Ms Bramley referred to Dr Wahr’s report in which he recorded that Mr Vaneski was anxious and depressed but his sensorium was clear and his intellectual functioning was normal. In addition, his concentration was just reasonable, his memory was reasonable, there was no evidence of delusions, hallucinations or thought disorder and no evidence of emotional detachment. Ms Bramley contended that the conditions of chronic pain disorder and psychosis cannot be assessed under Table 5.
Ms Bramley accepted that the various diagnoses of depression are properly supported by the opinion of a psychiatrist, Dr Wahr.
I find that Mr Vaneski has a permanent mental health condition (diagnosed as depression) that has been diagnosed by an appropriately qualified medical practitioner.
I must now assess the functional impact of the condition on Mr Vaneski’s activities. In doing so, I note the Introduction to Table 5 includes the following:elf-report of symptoms alone is insufficient ... there must be corroborating evidence of the person’s impairment.
To attract a rating of 20 points, Table 5 requires a person to have severe difficulties with most of the following:
Self-care and independent living;
Social/recreational activities and travel;
Interpersonal relationships;
Concentration and task completion;
Behaviour, planning and decision-making; and
Work/training capacity.
Mr Tanevski testified that Mr Vaneski is not capable of taking care of himself or living independently. Mr Tanevski and his wife have to help Mr Vaneski to shower and get dressed. They prepare all his meals and will not allow Mr Vaneski to cook in case he burns down the house. They have to bring Mr Vaneski in from the veranda otherwise he would forget where he was and just stay there. Mr Tanevski testified also that they do not let Mr Vaneski out alone as he might not be able to return to the house. Mr Tanevski said that he, his wife or his cousin have to take Mr Vaneski to see his doctors as he is not capable of doing that himself. Mr Tanevski said he takes Mr Vaneski to his cousin’s house three to four times a week but Mr Vaneski just sits there. Mr Tanevski described also the assistance Mr Vaneski requires to travel.
In a medical report dated 19 December 2012, Dr S Tipirneni, psychiatrist, under the heading Impact on ability to function, marked the descriptors neurological/cognitive function (e.g. concentrating ... memory, problem solving) and behaviour, planning, interpersonal relationships. As further explanation, Dr Tipirneni also noted [h]e gets crawling sensations and memory, concentration. In his report dated 6 March 2013 Dr Tipirneni reported significant racy (sic) mind at times with social anxiety and poor sleep.
In his report dated 17 December 2012, Mr Stojcevski reported that Mr Vaneski’s Global Assessment of Functioning (GAF) code score has decreased considerably (below 65) in the last twelve months.
In the report submitted 18 February 2013, the Job Capacity Assessor JCA assessed a mild functional impact and reported that a GAF code score of 65 corresponds to five points on the Impairment Table. The JCA further reported that Mr Vaneski is independent with all ADLs, which I understand to mean independent with all activities of daily living.
In his report dated 24 April 2003, Dr Kaplan reported that Mr Vaneski has developed a heightened sense of vulnerability and consequently feels unsafe when he ventures outdoors. He appears to have become uncharacteristically socially withdrawn and his self-esteem has been eroded.
In June 2013, after reviewing Mr Vaneski’s medical history, including all the above report entries, a Review Officer of the Health Professional Advisory Unit (HPAU) assessed the functional impact on activities involving mental health function as moderate.
I note, however, that none of the doctors, psychiatrists, psychologists, Job Capacity Assessors or the HPAU Review Officer had the benefit of the evidence of Mr Tanevski. Mr Tanevski testified that he did not attend Mr Vaneski’s medical interviews as he would be embarrassed. He said that his testimony at the hearing was his first ever involvement in Mr Vaneski’s reviews and assessments.
Mr Tanevski’s evidence corroborates Mr Vaneski’s evidence. It also provides direct evidence relating to many of the activities listed as examples for consideration in the severe section of Table 5. Mr Tanevski testified that Mr Vaneski:
is not capable of caring for himself, that he needs constant care from Mr Tanevski, his wife and his cousin ((1)(a));
Is not able to travel alone, even to the local shops ((1)(b));
Has social contact only with his cousin, organised by Mr Tanevski ((1)(c)); and
When left alone, does nothing other than sit and forgets where he is ((1)(d)).
I am aware that Mr Tanevski might have an interest in the unlimited portability of Mr Vaneski’s DSP benefits in that he wants Mr Vaneski to move out of his house. However, after listening to his evidence, I have no reason to believe that Mr Tanevski embellished his evidence in any way.
In regard to the remaining elements in the severe section of Table 5, I note the reports of Dr Tipirneni (see above at paragraph 31) regarding Mr Vaneski’s behaviour, planning and problem-solving characteristics ((1)(e)), and his lack of work capacity due to his psychiatric condition ((1)(f)).
From all the evidence before me, I am satisfied that Mr Vaneski has significant difficulties with most of the activities listed in the severe section of Table 5. Accordingly, I find that Mr Vaneski’s impairment resulting from his psychological/psychiatric condition attracts an impairment rating of 20 points under Table 5. Section 94(3B) of the Act determines that a person’s impairment is severe if it attracts 20 or more points under a single Impairment Table. As Mr Vaneski’s impairments attract 20 points under Table 5, I find that Mr Vaneski’s impairments are severe.
Capacity to Work Independently of a Program of Support
I must now consider whether Mr Vaneski is capable of doing work independently of a program of support in the terms of section 94(4) of the Act. That section provides that a person is treated as doing work independently of a program of support if the Secretary is satisfied that, to do the work, the person:
(a) Is unlikely to need a program of support; or
(b) Is likely to need a program of support provided occasionally; or
(c) Is likely to need a program of support that is not ongoing.
Mr Vaneski testified that he is not capable of doing any work. His testimony was supported by the testimony of Mr Tanevski, who said that Mr Vaneski is unable to look after himself at home, and cannot go out of the house on his own as he is likely to get lost. Mr Tanevski said that Mr Vaneski just sits on the veranda and if left alone would forget to come in.
The medical reports contain the following relevant statements:
(a) Dr Wahr’s report dated 10 July 2014 – In my opinion Mr Vaneski has no work capacity whatsoever and will never be able to work again as his condition is chronic;
(b) Dr Tipirneni’s report dated 6 March 2013 – In my opinion he is (sic) no work capacity in (sic) foreseeable future due to the above Physical and Psychiatric conditions;
(c) Mr Stojcevski’s report dated 4 March 2013 – ... this same psychiatric condition has prevented the patient from working for the last 16 years and will continue to prevent him from being employable for the rest of his life; and
(d) Dr Kaplan’s report dated 24 April 2003 – ... he is probably not capable of working in his former occupation as a factory worker or construction worker, and is probably incapable of engaging in any other occupation for which he is reasonably qualified by education, training or experience as he has no other skills.
The JCA’s reports also contain the following statements:
(a) 18 February 2013 – The client’s medical condition/s does not prevent them (sic) from using public transport without substantial assistance and Baseline Work Capacity 15-22 Hours per week ...with Intervention 15-22 Hours per week;
(b) 17 January 2011 – Symptoms cause significant interference with ability to perform or persist with work-related tasks. Symptoms may cause prolonged absences from work and [g]iven the severe, chronic and debilitating functional impacts arising from the condition of chronic pain, it is the assessor’s recommendation that Mr Vaneski have a reduced work capacity of 0-7 hours per week and would not benefit from any program; and
(c) 4 February 2008 – Future capacity for work with and without intervention 23-29 hours per week.
In considering this issue, I note the unanimity of the opinions of the doctors in their assessments that Mr Vaneski has no capacity for work. In contrast, three of the four JCAs rate Mr Vaneski’s work capacity between 15 and 29 hours per week with or without intervention. However, I note the assessment on 17 January 2011 of a reduced work capacity of zero to seven hours per week.
As with my consideration of the severity of Mr Vaneski’s impairment, I note also that the opinions of the doctors and the JCAs were formed without the assistance of the evidence of Mr Tanevski or other family members.
After considering all the available evidence, I am not satisfied that Mr Vaneski is capable of working independently of a program of support. Considering the evidence of the chronicity of Mr Vaneski’s conditions, and the evidence that his conditions are becoming more severe with time, I am satisfied that Mr Vaneski’s impairments would prevent him from performing any work independently of a program of support (within the meaning of section 94(4)), within the next five years. Therefore, I find that section 1218AAA(1)(d) has been met.
FINDINGS
In regard to the provisions of section 1218AAA(1) of the Act, I make the following findings:
(a) Mr Vaneski is receiving disability support pension,
(b) I am satisfied that Mr Vaneski’s impairment is a severe impairment within the meaning of section 94(3B) of the Act,
(c) I am satisfied that Mr Vaneski will have that severe impairment for at least the next five years, and
(d) I am satisfied that if Mr Vaneski were in Australia his severe impairment would prevent him performing any work independently of a program of support (within the meaning of section 94(4)) in the next five years.
DECISION
Based on these findings I set aside the decision of the SSAT and substitute the decision that Mr Vaneski can be paid DSP for an unlimited period during continuous absence from Australia.
I certify that the preceding 49 (forty -nine) paragraphs are a true copy of the reasons for the decision herein of Mr C Ermert, Member
.....[sgd]..................................................
Associate
Dated 7 October 2014
Date(s) of hearing
1 July 2014 and 30 September 2014
Applicant
In person
Advocate for the Respondent
Ms A Bramley, Department of Human Services
Last Updated: 9 October 2014
[2014] AATA 728
Division
GENERAL ADMINISTRATIVE DIVISION
File Number(s)
2013/6691
Re
Darko Vaneski
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal
Mr C Ermert, Member
Date
7 October 2014
Place
Melbourne
The Tribunal sets aside the decision under review and substitutes the decision that Mr Vaneski can be paid disability support pension for an unlimited period during continuous absence from Australia.
........[sgd]..........................................
Mr C Ermert, Member
SOCIAL SECURITY – Disability Support Pension – unlimited portability – severe impairment – inability to work independently of program of support – decision set aside
Legislation
Social Security Act 1991 sections 94, 1217, 1218AAA
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Mr C Ermert, Member
7 October 2014
INTRODUCTION
In 1997 Mr Vaneski, the Applicant, suffered a workplace accident. He received disability support pension (DSP) payments from 30 December 2010 to 27 June 2011, and again from 21 December 2011. On 13 December 2012 he advised Centrelink that he intended to travel to Macedonia in February 2013. He requested an assessment for the purpose of an unlimited portability period for his DSP payments. Centrelink is the service provider for the Department of Social Services, the Respondent.
On 27 December 2012 Mr Vaneski lodged the relevant application forms together with medical reports from a psychiatrist and a psychologist. On 14 January 2013 a Job Capacitor Assessor (JCA) assessed that Mr Vaneski’s conditions attracted an impairment rating of 10 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) and that Mr Vaneski was capable of working 15 to 22 hours per week within the next two years.
On the basis of the JCA’s assessment, a Centrelink officer decided to cancel Mr Vaneski’s DSP as he no longer met the requirements. A Centrelink authorised review officer (ARO) set aside that decision and determined that Mr Vaneski had a work capacity of between 8 and 14 hours per week. On the basis of the assessed work capacity, the ARO decided that Mr Vaneski could not be given unlimited portability in regard to his DSP payments. On 20 August 2013 the Social Security Appeals Tribunal (SSAT) affirmed the ARO’s decision. This matter is an application for review of the SSAT’s decision.
THE HEARING
The hearing commenced on 1 July 2014. After hearing the evidence I adjourned the hearing until 30 September 2014 to allow Mr Vaneski time to obtain additional medical evidence and for both parties to consider that evidence.
Mr Vaneski represented himself at the hearing and gave evidence under oath with the assistance of an interpreter in the Macedonian language. Mr Tanevski, Mr Vaneski’s uncle, testified on behalf of Mr Vaneski.
Ms Bramley of the Department of Human Services represented the Respondent. I had before me the documents provided by the Respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents). I also had before me the Secretary’s Statement of Facts and Contentions dated 25 June 2014. Following the adjournment, I had before me the additional medical evidence, a medical report from Dr G Wahr dated 10 July 2014; and the Secretary’s submissions-in-reply to that medical report dated 23 July 2014.For the Applicant I took into evidence:
A letter from Dr J Ristevski, dated 19 September 2013 (Exhibit A1),
A letter from Mr Z Stojcevski, psychologist dated 16 September 2013 (Exhibit A2),
A report by Dr T Tan dated 13 November 2012 ( Exhibit A3),
A report by Dr G Cipurovski, Melbourne Back Care, dated 10 June 2014 (Exhibit A4), and after the adjournment,
A report by Dr Wahr, psychiatrist dated 10 July 2014 (Exhibit A5), and
A report by Mr Stojcevski dated 4 August 2014 (Exhibit A6).
THE LEGISLATION
The relevant legislation is contained in the Social Security Act 1991 (the Act) and the Impairment Tables.
THE ISSUES
Section 1217 of the Act provides for a maximum portability period of 6 weeks unless the person is terminally ill or severely impaired. There is no contention that Mr Vaneski is terminally ill. The issue in contention is whether Mr Vaneski is severely impaired in the terms of the Act.
The provisions regarding severe impairment are contained in section 1218AAA of the Act. This section allows the Secretary (and the Tribunal acting in the Secretary’s position) to determine that a person’s portability period for DSP payments is unlimited, if all of the following circumstances are met:
(a) The person is receiving disability support pension;
(b) The Secretary is satisfied that the person’s impairment is a severe impairment (within the meaning of subsection 94(3B));
(c) The Secretary is satisfied that the person will have that severe impairment for at least the next five years;
(d) The Secretary is satisfied that, if the person were in Australia, the severe impairment would prevent the person from performing any work independently of a program of support (within the meaning of subsection 94(4) within the next five years.
It is not contested that prior to leaving Australia Mr Vaneski was receiving DSP (subsection (a)) and that his medical conditions will continue for the next five years (subsection (c)).
The issues to be determined are whether Mr Vaneski’s impairment is severe (section 94(3B)), and whether he is able to work independently of a program of support for the next five years (section 94(4)).
THE EVIDENCE
Mr Vaneski stated that he notified Centrelink of his intention to go to Macedonia. He said that Centrelink stopped his DSP payments and told him he was able to work. He described how, at his former workplace, he was hit by a crane which damaged the side of his face. He said that, since then, he has not felt like a human being.
Mr Vaneski said he lived with an uncle and aunt. He said he has been stuck at home for years and that he goes nowhere. He said if he does go out he gets dizzy spells and feels that he will collapse and fall. He said every day he has pains in the chest and feels he is going to die.
Mr Vaneski said he does nothing other than sit or lie down. He said he does not get out past the front door. When asked why he does not go out, Mr Vaneski said that everything irritates him, nothing interests him, and although he used to go to the football he now feels he will collapse.
Mr Vaneski said he has no friends. He said he sometimes watches television programs in the Macedonian language. He said he often has to lie down as he feels ill and wants to sleep.
In answer to questions from Ms Bramley, Mr Vaneski stated:
His jaw always hurts, his neck hurts and he has pain everywhere;
His neck pain is associated with his work accident;
He sees Dr Ristevski each week or fortnight, sometimes twice a week;
His medications are Panadeine Forte for the pain and tablets for his nerves and stomach;
He sees his psychiatrist, Dr Wahr, because of the pain in his head, everything hurts, and he takes Zoloft and Seracol.
The conditions that affect him most are his jaw and his depression;
The worst condition is his head, his brain feels jammed, blocked, with sharp cutting pains across his head and a sensation like ants crawling inside his head;
He has been seeing his psychologist, Mr Stojcevski, for years; and still sees him every three to four weeks.
Mr Vaneski said he feels different when he is overseas. He said he has less pain and less pressure. He said he has seen many doctors in Macedonia and had x-rays and scans of his head.
When asked if his condition has changed since his application for DSP, Mr Vaneski said his condition remains the same. He said he has spent a lot of money on doctors but no-one has been able to help.
Mr Tanevski gave the following evidence:
Mr Vaneski has been living with him and his wife since before the accident;
Mr Vaneski’s condition is a lot worse than it was previously;
His wife constantly has to wash Mr Vaneski’s bed sheets as he sweats a lot;
Mr Vaneski does not always flush the toilet;
The situation is having an adverse effect on his wife’s health and she has started taking tablets for nerves because of Mr Vaneski;
They use a wheelchair for Mr Vaneski because if he walks around he breaks things;
If they take Mr Vaneski out on to the veranda he forgets to come in and would stay there all day;
He was hoping Mr Vaneski would help with his carpet cleaning business but all Mr Vaneski does is sleep;
In answer to questions from Ms Bramley, Mr Tanevski said:
He and his wife have to turn on the shower for Mr Vaneski, then help him to dress, otherwise he will just stop and stay that way;
He and his wife, and sometimes his son and cousin, take Mr Vaneski to the doctors;
They never let Mr Vaneski go out alone otherwise he might not get back to the house;
His wife cooks all the food for Mr Vaneski as they are afraid he might burn the house down;
He takes Mr Vaneski to his cousin’s house three times a week for three to four hours, but Mr Vaneski just sits there;
When Mr Vaneski travels overseas they take him to the airport, explain his condition to the attendants who look after him and then his brother-in-law meets him at his destination.
TRIBUNAL CONSIDERATIONS
The first issue I need to consider is whether Mr Vaneski’s impairments are severe in the terms of section 94(3B) of the Act. If I find that his impairments are severe I will go on to consider whether Mr Vaneski is able to work independently of a program of support for the next five years as prescribed in section 94(4) of the Act.
Section 94(3B) of the Act defines severe impairment as follows:
A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.
Psychological / Psychiatric Condition
In its Statement of Facts and Contentions, the Respondent accepts that Mr Vaneski suffers from a psychological or psychiatric condition variously labelled:
Anxiety with depression by Dr Ristevski in January 2008 and December 2010;
Anxiety depression panic attacks by Dr Ristevski in December 2011;
Chronic post-traumatic stress disorder by Dr Tipirneni in December 2012;
Chronic adjustment disorder depressive type with chronic pain syndrome by Dr Tipirneni in March 2013; and
Chronic pain disorder and chronic post-traumatic stress disorder by Mr Stojcevski in December 2012.
I note the following additional diagnoses:
Agitated depressive reaction and possibly a psychosis by Dr Wahr in July 2014 ; and
Chronic pain disorder by Mr Stojcevski in August 2014.
The relevant Impairment Table is Table 5: Mental Health Function (Table 5). The Introduction to Table 5 states 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).
In her submissions dated 23 July 2014, Ms Bramley contended that Mr Stojcevski’s diagnosis of chronic pain disorder has not been made by a psychiatrist. In addition, she contended that Dr Wahr’s diagnosis of a psychosis is not supported by evidence that the condition has been fully diagnosed and treated. In support of her latter contention Ms Bramley referred to Dr Wahr’s report in which he recorded that Mr Vaneski was anxious and depressed but his sensorium was clear and his intellectual functioning was normal. In addition, his concentration was just reasonable, his memory was reasonable, there was no evidence of delusions, hallucinations or thought disorder and no evidence of emotional detachment. Ms Bramley contended that the conditions of chronic pain disorder and psychosis cannot be assessed under Table 5.
Ms Bramley accepted that the various diagnoses of depression are properly supported by the opinion of a psychiatrist, Dr Wahr.
I find that Mr Vaneski has a permanent mental health condition (diagnosed as depression) that has been diagnosed by an appropriately qualified medical practitioner.
I must now assess the functional impact of the condition on Mr Vaneski’s activities. In doing so, I note the Introduction to Table 5 includes the following:
To attract a rating of 20 points, Table 5 requires a person to have severe difficulties with most of the following:
Self-care and independent living;
Social/recreational activities and travel;
Interpersonal relationships;
Concentration and task completion;
Behaviour, planning and decision-making; and
Work/training capacity.
Mr Tanevski testified that Mr Vaneski is not capable of taking care of himself or living independently. Mr Tanevski and his wife have to help Mr Vaneski to shower and get dressed. They prepare all his meals and will not allow Mr Vaneski to cook in case he burns down the house. They have to bring Mr Vaneski in from the veranda otherwise he would forget where he was and just stay there. Mr Tanevski testified also that they do not let Mr Vaneski out alone as he might not be able to return to the house. Mr Tanevski said that he, his wife or his cousin have to take Mr Vaneski to see his doctors as he is not capable of doing that himself. Mr Tanevski said he takes Mr Vaneski to his cousin’s house three to four times a week but Mr Vaneski just sits there. Mr Tanevski described also the assistance Mr Vaneski requires to travel.
In a medical report dated 19 December 2012, Dr S Tipirneni, psychiatrist, under the heading Impact on ability to function, marked the descriptors neurological/cognitive function (e.g. concentrating ... memory, problem solving) and behaviour, planning, interpersonal relationships. As further explanation, Dr Tipirneni also noted [h]e gets crawling sensations and memory, concentration. In his report dated 6 March 2013 Dr Tipirneni reported significant racy (sic) mind at times with social anxiety and poor sleep.
In his report dated 17 December 2012, Mr Stojcevski reported that Mr Vaneski’s Global Assessment of Functioning (GAF) code score has decreased considerably (below 65) in the last twelve months.
In the report submitted 18 February 2013, the Job Capacity Assessor JCA assessed a mild functional impact and reported that a GAF code score of 65 corresponds to five points on the Impairment Table. The JCA further reported that Mr Vaneski is independent with all ADLs, which I understand to mean independent with all activities of daily living.
In his report dated 24 April 2003, Dr Kaplan reported that Mr Vaneski has developed a heightened sense of vulnerability and consequently feels unsafe when he ventures outdoors. He appears to have become uncharacteristically socially withdrawn and his self-esteem has been eroded.
In June 2013, after reviewing Mr Vaneski’s medical history, including all the above report entries, a Review Officer of the Health Professional Advisory Unit (HPAU) assessed the functional impact on activities involving mental health function as moderate.
I note, however, that none of the doctors, psychiatrists, psychologists, Job Capacity Assessors or the HPAU Review Officer had the benefit of the evidence of Mr Tanevski. Mr Tanevski testified that he did not attend Mr Vaneski’s medical interviews as he would be embarrassed. He said that his testimony at the hearing was his first ever involvement in Mr Vaneski’s reviews and assessments.
Mr Tanevski’s evidence corroborates Mr Vaneski’s evidence. It also provides direct evidence relating to many of the activities listed as examples for consideration in the severe section of Table 5. Mr Tanevski testified that Mr Vaneski:
is not capable of caring for himself, that he needs constant care from Mr Tanevski, his wife and his cousin ((1)(a));
Is not able to travel alone, even to the local shops ((1)(b));
Has social contact only with his cousin, organised by Mr Tanevski ((1)(c)); and
When left alone, does nothing other than sit and forgets where he is ((1)(d)).
I am aware that Mr Tanevski might have an interest in the unlimited portability of Mr Vaneski’s DSP benefits in that he wants Mr Vaneski to move out of his house. However, after listening to his evidence, I have no reason to believe that Mr Tanevski embellished his evidence in any way.
In regard to the remaining elements in the severe section of Table 5, I note the reports of Dr Tipirneni (see above at paragraph 31) regarding Mr Vaneski’s behaviour, planning and problem-solving characteristics ((1)(e)), and his lack of work capacity due to his psychiatric condition ((1)(f)).
From all the evidence before me, I am satisfied that Mr Vaneski has significant difficulties with most of the activities listed in the severe section of Table 5. Accordingly, I find that Mr Vaneski’s impairment resulting from his psychological/psychiatric condition attracts an impairment rating of 20 points under Table 5. Section 94(3B) of the Act determines that a person’s impairment is severe if it attracts 20 or more points under a single Impairment Table. As Mr Vaneski’s impairments attract 20 points under Table 5, I find that Mr Vaneski’s impairments are severe.
Capacity to Work Independently of a Program of Support
I must now consider whether Mr Vaneski is capable of doing work independently of a program of support in the terms of section 94(4) of the Act. That section provides that a person is treated as doing work independently of a program of support if the Secretary is satisfied that, to do the work, the person:
(a) Is unlikely to need a program of support; or
(b) Is likely to need a program of support provided occasionally; or
(c) Is likely to need a program of support that is not ongoing.
Mr Vaneski testified that he is not capable of doing any work. His testimony was supported by the testimony of Mr Tanevski, who said that Mr Vaneski is unable to look after himself at home, and cannot go out of the house on his own as he is likely to get lost. Mr Tanevski said that Mr Vaneski just sits on the veranda and if left alone would forget to come in.
The medical reports contain the following relevant statements:
(a) Dr Wahr’s report dated 10 July 2014 – In my opinion Mr Vaneski has no work capacity whatsoever and will never be able to work again as his condition is chronic;
(b) Dr Tipirneni’s report dated 6 March 2013 – In my opinion he is (sic) no work capacity in (sic) foreseeable future due to the above Physical and Psychiatric conditions;
(c) Mr Stojcevski’s report dated 4 March 2013 – ... this same psychiatric condition has prevented the patient from working for the last 16 years and will continue to prevent him from being employable for the rest of his life; and
(d) Dr Kaplan’s report dated 24 April 2003 – ... he is probably not capable of working in his former occupation as a factory worker or construction worker, and is probably incapable of engaging in any other occupation for which he is reasonably qualified by education, training or experience as he has no other skills.
The JCA’s reports also contain the following statements:
(a) 18 February 2013 – The client’s medical condition/s does not prevent them (sic) from using public transport without substantial assistance and Baseline Work Capacity 15-22 Hours per week ...with Intervention 15-22 Hours per week;
(b) 17 January 2011 – Symptoms cause significant interference with ability to perform or persist with work-related tasks. Symptoms may cause prolonged absences from work and [g]iven the severe, chronic and debilitating functional impacts arising from the condition of chronic pain, it is the assessor’s recommendation that Mr Vaneski have a reduced work capacity of 0-7 hours per week and would not benefit from any program; and
(c) 4 February 2008 – Future capacity for work with and without intervention 23-29 hours per week.
In considering this issue, I note the unanimity of the opinions of the doctors in their assessments that Mr Vaneski has no capacity for work. In contrast, three of the four JCAs rate Mr Vaneski’s work capacity between 15 and 29 hours per week with or without intervention. However, I note the assessment on 17 January 2011 of a reduced work capacity of zero to seven hours per week.
As with my consideration of the severity of Mr Vaneski’s impairment, I note also that the opinions of the doctors and the JCAs were formed without the assistance of the evidence of Mr Tanevski or other family members.
After considering all the available evidence, I am not satisfied that Mr Vaneski is capable of working independently of a program of support. Considering the evidence of the chronicity of Mr Vaneski’s conditions, and the evidence that his conditions are becoming more severe with time, I am satisfied that Mr Vaneski’s impairments would prevent him from performing any work independently of a program of support (within the meaning of section 94(4)), within the next five years. Therefore, I find that section 1218AAA(1)(d) has been met.
FINDINGS
In regard to the provisions of section 1218AAA(1) of the Act, I make the following findings:
(a) Mr Vaneski is receiving disability support pension,
(b) I am satisfied that Mr Vaneski’s impairment is a severe impairment within the meaning of section 94(3B) of the Act,
(c) I am satisfied that Mr Vaneski will have that severe impairment for at least the next five years, and
(d) I am satisfied that if Mr Vaneski were in Australia his severe impairment would prevent him performing any work independently of a program of support (within the meaning of section 94(4)) in the next five years.
DECISION
Based on these findings I set aside the decision of the SSAT and substitute the decision that Mr Vaneski can be paid DSP for an unlimited period during continuous absence from Australia.
I certify that the preceding 49 (forty -nine) paragraphs are a true copy of the reasons for the decision herein of Mr C Ermert, Member
.....[sgd]..................................................
Associate
Dated 7 October 2014
Date(s) of hearing
1 July 2014 and 30 September 2014
Applicant
In person
Advocate for the Respondent
Ms A Bramley, Department of Human Services
