Avramoski and Secretary, Department of Family and Community Services
[2004] AATA 516
•21 May 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 516
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/986
| GENERAL ADMINISTRATIVE DIVISION | ) | ||
| Re | DIMITRIJE AVRAMOSKI | ||
Applicant
| And | SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES |
Respondent
DECISION
| Tribunal | Rear Admiral A R Horton AO, Member |
Date 21 May 2004
Place Wollongong
| Decision | The decision under review of the Social Security Appeals Tribunal of 14 May 2003 is set aside. In substitution thereof the Tribunal finds that the Applicant does qualify to receive disability support pension from the date of claim which is 11 November 2002. |
…………………………………
Rear Admiral A R Horton AO
Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – review of the Social Security Appeals Tribunal decision that the Applicant did not qualify for disability support pension – assessment of impairment ratings – combined impairment assessed at 20 points – conditions of subsection 94(1)(b) met – continuing inability to work in next 2 years – conditions of subsection 94(1)(c) met.
Social Security Act 1991 – section 94
Elrich and Department of Family and Community Services [2000] AATA 456
REASONS FOR DECISION
| 21 May 2004 | Rear Admiral A R Horton AO |
This is an application to review a decision of the Social Security Appeals Tribunal (“the SSAT”) on 14 May 2003 that affirmed a decision of an authorised review officer (“ARO”) of 28 January 2003 which in turn affirmed a decision of the delegate of the Secretary, Department of Family and Community Services (“the Respondent”) dated 22 January 2003 that Mr Dimitrije Avramoski (“the Applicant”) is not eligible for the Disability Support Pension (“DSP”).
At a hearing before the Administrative Appeals Tribunal (“the Tribunal”) on 26 March 2004 in Wollongong at the Consumer, Tenancy & Trader Tribunal, Mr Avramoski was self represented. The Respondent was represented by Mr George Lozynsky, an advocate from the Administrative Law section of Centrelink. The Tribunal was assisted by Mr Petresev, an interpreter fluent in the Macedonian language.
The Tribunal took in to evidence the documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Exhibit TD1), a letter from Dr Sokolovska dated 19 August 2003 (Exhibit A1), a report from Dr Mills dated 30 September 2003 (Exhibit A2), a report from Dr Sokolovska dated 3 December 2003 (Exhibit A3) and a report from Dr Wassenaar dated 19 December 2003 (Exhibit R1). The Applicant gave oral evidence at the hearing.
LEGISLATION AND ISSUES
The issue before the Tribunal is whether Mr Avramoski satisfies the criteria at section 94 of the Social Security Act 1991 (“the Act”) in respect of eligibility for DSP. Such criteria must be satisfied within a period of 13 weeks after the day on which the claim is made with respect to Schedule 2 Part 2 of the Social Security (Administration) Act 1999 (“the SSA Act”). The date of claim in this matter is 11 November 2002.
According to the Respondent there is no dispute that the Applicant has gastro-osophagael reflux, dizziness and iron deficiency anaemia and thus the Respondent concedes that the Applicant does meet the provisions of subsection 94(1)(a) of the Act in respect of impairment as defined in the work related Impairment Tables at Schedule 1B of the Act.
The issues before the Tribunal are therefore:
(a)whether Mr Avramoski’s impairment is of twenty points or more under the Impairment Tables with respect to subsection 94(1)(b) of the Act; and
(b)whether he has a continuing inability to work because the impairment of itself prevents him from doing any work for at least 30 hours per week at award wages within the next two years with respect to subsection 94(1)(c); and
(c)the impairment is of itself sufficient to prevent him undertaking educational or vocational training or on-the-job training during the next 2 years; or
(d)if the impairment does not prevent him from undertaking educational or vocational on-the-job training – such training is unlikely (because of the impairment) to enable him to do any work within the next two years.
BACKGROUND
Mr Avramoski arrived in Australia from Yugoslavia in 1965 at age 24. Prior to his arrival in Australia he had no specific trade as such and was helping his father with errands on a small family farm. He also completed two years military service. The Applicant was married shortly before migrating to Australia. He subsequently had 2 children, but neither they nor his wife have been to this country. Mr Avramoski indicated he has visited them on various occasions, and that he worked in Australia to support his family, there being minimal opportunities to do so in Yugoslavia.
With respect to his working capacity, Mr Avramoski indicated that he spent 17 years working in the bush north of Perth. Following that lengthy period the Applicant then moved to the vicinity of Wollongong and worked for 10 months in the steel work industry for Broken Hill Proprietary Limited (BHP) before returning to Perth to work as a rigger and labourer. He returned to the Wollongong area from Perth in 1990 and began working for a concrete construction company until medical problems intervened.
Mr Avramoski stated that he became ill in 2002. He described his condition at that time as “I started losing consciousness, having dizzy spells and I started medical investigations for the problems. I saw Dr Sokolovska, who referred me to have some tests. The tests showed some kind of cancer in my stomach. I was really scared. Since then, I lost my morale. I started experiencing greater problems with my head. I started losing consciousness frequently”. It appears that the subsequent medical evidence revolves around these initial first symptoms which produced a claim in November 2002 for Disability Support Pension.
With respect to Mr Avramoski’s current lifestyle and health status, he lives in a boarding house with several other people. He has his own room in the complex. In relation to cooking, he stated that he now does not generally cook due to his lack of concentration and anxiety that he might injure himself or damage something. He stated that whilst he can otherwise look after himself he very rarely uses public transport being fearful of losing consciousness, relying at times on a nephew to drive him to attend appointments or the like.
With respect to his work ethic and employment history, when asked if he was always in employment in some sort or the other from his arrival in Australia in 1962 up until his claim in 2002, the Applicant replied “all the time”. To some extent this continuous and stable work ethic purports to give an element of credibility to Mr Avramoski’s strength of character and resilience.
Eligibility for the DSP centres on the validity of the original claim. On 7 November 2002, Mr Avramoski expressed an intention to claim the DSP. On 11 November 2002 he lodged a claim with Centrelink for the DSP. The effective date of the claim is 11 November 2002 but if Mr Avramoski is found to be qualified then one can take the date as being the date on which an intention to claim was established. While it is undisputed that the Applicant does suffer from a number of medical conditions, the area of contention lies in the matter of whether he meets the criteria in section 94(1)(b) of the Act in respect of 20 points, and section 94(1)(c) in respect of an inability to work.
MEDICAL REPORTS
The medical reports in this matter provide a much needed foundational understanding of the Applicant’s condition(s) yet generally do not validate conclusively the extent or seriousness of some of the claimed conditions. The Medical Report of Michael D Kelly of 24 October 2002 (T4 page 12) indicates a referral of the Applicant to Dr Sokolovska for treatment of a stomach infection. The Treating Doctor’s Report of 8 November 2002 by Dr Sokolovska (T6 page 15) indicates that the diagnosed conditions of a lung lesion and gastro-oesophageal reflux disease could be expected to impact on the patient’s ability to function for more than 24 months.
The report of Dr Wassenaar of HSA dated 10 January 2003 (T9, page 54) describes conditions of losing consciousness, the cause till being investigated, a chest lesion reported to be benign, but not supported by evidence, high blood sugar level “indicative of diabetes”, heliobactor gastritis under treatment, anorexia and anaemia “of uncertain causes”. He noted that Mr Avramoski felt unwell “in terms of abdominal pain, dizziness, chest hotness and breathlessness”. He assessed Mr Avramoski as being unfit for work for six months.
Following lodgement of a new claim (December 2003) Dr Wassenaar considered (Exhibit R1) the conditions to be Transient Ischaemic Attacks (“TIA”) causing dizziness, albeit symptoms were unusual, chronic airways limitation (“CAL”), reflux and a recent condition of bilateral knee pain. He considered Mr Avramoski to be temporarily unfit for work for 6 months, pending a further opinion on TIA.
The later reports before the Tribunal from Dr Sokolovska (Exhibits A1 and A3) confirm that the diagnosed conditions of TIA have yet to be stabilised. Reference is made to “review” by Dr Marantos; the only report from Dr Marantos dated 16 April 2003 is by way of a cardiology request form.
The remaining report available to the Tribunal is that of Dr R Mills, Consultant Physician, dated 30 September 2003 (Exhibit A2). He notes documentable peripheral vascular disease, “consistent with the clinical diagnosis of TIA’s”, and in the circumstances, he considers that condition to be documented, investigated, treated and stabilised. He considers Mr Avramoski unfit for work.
THE RESPONDENT’S SUBMISSIONS
The Respondent’s submissions centred around the notion that while the Applicant had made a claim in November 2002, the conditions which were originally claimed that is, left lung lesion and oesophageal reflux, were not seen to be treated, stabilised and fully investigated and thus the claim is unsuccessful. The issue of contention arises as to what extent, if any, subsequent reports and evidence from medical practitioners can be taken into account? The Respondent highlighted this point by referring to the fact that Dr Sokolovska more recently has come to the conclusion that Mr Avramoski is now suffering from Transient Ischaemic Attacks (“TIA”). This is confirmed by Dr Mills. It was argued that this is an example of how subsequent conditions have arisen that do not form part of the original claim in addition to the situation that the original conditions claimed were not treated, stabilised and investigated at the time.
The Respondent maintained that the Medical Reports seem to indicate that the Applicant initially had a lesion of the left lung yet now the conclusion is that the Applicant has chronic airways limitation. In lieu of this, the Respondent contended that the diagnosis was not clear at the time of the original claim and only after subsequent further investigations by various doctors did it seem to indicate that the Applicant has chronic airways limitation.
The Respondent contends that with respect to the stomach problem, noted by Mr Avramoski in his claim, however, there is little to support the view that the condition was fully treated and stabilised. The Respondent further contended that the condition of diagnosis once again was not fully diagnosed, treated and stabilised at the time of the original claim in November 2002. To support this contention the Respondent referred to the Medical Report of Dr Marantos which stated that the Applicant’s condition was being investigated and referred for further investigations in May 2003. The Respondent submitted that a new condition relating to the Applicant’s knee falls well outside the period under review.
The Respondent noted that with respect to the Applicant’s assertion of a lesion on the left lung and chronic airways limitation condition, Dr Sokolovska considered them both to be one condition as indicated in the Medical Report of 3 December 2003. It was also noted that the Medical Report of Dr Marantos analysed the lesion on the left lung; that report was not before the Tribunal.
With respect to the issue of a continuing inability to work under section 94(1)(c) of the Act, the Respondent noted that it was accepted by the Health Services Australia Doctor that Mr Avramoski was unfit for work for up to 6 months, on the condition that Mr Avramoski’s medical conditions were clarified and investigated. The Respondent argued that the requirement under section 94(1)(c) is whether a person is unfit for work for the next 2 years. The Respondent argued that while the Applicant may be unfit for work up to 6 months, he could well be able to conduct work after that period provided certain investigations are undertaken by various doctors and a proper diagnosis is determined that Mr Avramoski is fit for work. The Respondent disagreed with the opinion of Dr Mills that an impairment rating of 20 points was appropriate.
Fundamentally, the Respondent accepts the conditions of oesophageal reflux, dizziness and anorexia, but no impairment rating can be assigned in the absence of full diagnosis, treatment and stabilisation.
THE APPLICANTS SUBMISSIONS
Mr Avramoski indicated to the Tribunal that he was on a course of different medications for his conditions. He indicated that he took Lipitor for sugar levels, Cimpramil for nerves, Mobic for anti-inflammatory treatment for his knees as well as others. He indicated that the plethora of medications he took did help him to some extent manage the various conditions that confronted him, however, he did indicate that he has continuing dizzy spells and that he can fall unconscious for periods between 15 to 20 minutes. As a result of this he commented that “mostly my fear is to go out in the street because of the possibility I might fall unconscious whilst walking”.
Mr Avramoski recounted stress and anxiety relating to the condition of the lesion on the left lung. The report of Dr Wassanaar at page 54 of the T – documents refers to the suspicious lesion on the chest X-ray but this was subsequently understood to be benign. In response to this assertion Mr Avramoski commented “I’m still scared. This is my greatest stress because they keep telling me they don’t know exactly what is the real problem with my chest. So I have great concerns about my health and my future”. Medical evidence indicated that the chest condition problem has now been diagnosed as chronic airways limitation.
The Applicant was questioned as to what medical conditions he had specifically during the period from November 2002 and the subsequent three months. He indicated the conditions included dizziness, becoming unconscious, diabetes, stomach problems and overall pain, commenting “if I eat sir, I feel pain. If I have an empty stomach, I feel pain. It hurts all the time”. Mr Avramoski stated that CAL affected him in the sense of his overall anxiety. He commented that he gets dizzy every single day and that he started experiencing these symptoms in 2002.
Mr Avramoski stated that at the time of the original claim in November 2002, the main condition that was affecting him was the problem with his head but at the same time he also noted that there were breathing and stomach problems. During cross examination the Respondent asked: “When you completed your claim for Disability Support Pension, at page 34 of the claim it asks you how often do your disabilities, illnesses or injuries make it difficult for you to do the various items. It asks you what problems affect you the most. You have only stated ‘stomach problems’. Now you have just said you are suffering other conditions. Why did you not put that on the form?”. Mr Avramoski answered: “How could I possibly not mention the problem with my head that I was experiencing (it) at the time when I had the fall previously and, as a consequence, I was suffering from these problems – I must have mentioned it”. When shown the form he responded: “A person filled in this form. It wasn’t filled in by me”.
The extent of Mr Avramoski’s mobility is debatable since he contended that he does not go shopping, does not go to the local church and is not involved in any social activities. When the Respondent asked: “How do you feel about working?”, he replied: “There’s no way I can do any kind of work…If only I could”. He further commented: “…I keep wondering why I have been subject to this suffering for a period of more than one year. I keep asking myself why? If I could work I wouldn’t be coming to ask support from Centrelink. I would have continued to support myself as I have done in the past, but all of a sudden things changed. I couldn’t keep on working, so I had to turn to Centrelink for help. That’s how it happened. You see, the money I receive from Centrelink is not enough to cover my expenses, let alone the expenses of my wife and my family. If I could keep on working I would have kept on working because I would have been earning much more money which would be much better for myself and for my family”. Mr Avramoski indicated that he is currently on Newstart Allowance and was exempt from the Activity Test.
ANALYSIS AND DECISION
The Tribunal carefully considered all of the evidence, the submissions of the parties and the relevant legislation in coming to the correct and preferable decision in this matter.
The operative period to consider the Applicant’s claim commences on 11 November 2002, the day the Applicant lodged the claim for DSP. The period technically concludes 13 weeks thereafter.
In analysing the evidence in this matter, the Tribunal follows the reasoning in Elrich and Department of Family and Community Services [2000] AATA 456 and in earlier decisions of this Tribunal, that whilst the focus must be on medical conditions existing at the time of the 13 week operative period, material outside this period can be relevantly considered if it will assist in understanding particular conditions. At the outset it is important to note that the Respondent conceded that the Applicant met the provisions of subsection 94(1)(a) in this regard. Section 94 of the Act relevantly provides:
“94 Qualification for disability support pension
94(1) A person is qualified for 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) one of the following applies:
(i) the person has a continuing inability to work;
(ii) …”
Work-related impairment pursuant to subsection 94(1)(b) of the Act is assessed against the criteria defined in the Introduction to the Tables. Relevantly, these state:
“2. These tables are designed to assess impairment in relation to work and consist of system based tables that assign ratings in proportion to the severity of the impact of the medical conditions on normal function as they relate to work performance. These tables are function based rather than diagnosis based. …
3. …In using these tables ratings can only be assigned for conditions where there is an associated current loss of function or where prolonged loss of function would be expected in most work situations.
4. A rating is only to be assigned after a comprehensive history and examination. For a rating to be assigned the condition must be fully documented, diagnosed condition which has been investigated, treated and stabilised. …
5. …Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years.
…
7. A single medical condition should be assessed on all relevant tables…When using more than one Table for a single medical condition, the possibility of double assessment of a single loss of function must be guarded against…
8. In general, pain or fatigue should be assessed in terms of the underlying medical condition which causes it. …However where the medical officer is of the opinion that the Tables underestimate the level of disability because of the presence of chronic entrenched pain, Table 20 can be used…Medical reports and the person’s history should consistently indicate the presence of chronic entrenched pain or fatigue.”
On the evidence before it and taking account of the more definitive diagnoses reached after further investigation, the Tribunal accepts the conditions of gastro-oesophageal reflux, CAL and Transient Ischaemic Attacks, with iron deficiency anaemia .
Gastro-oesophageal Reflux
The Respondent contends that this condition cannot be awarded an impairment points rating as it is temporary in nature. The Report of Dr Kelly dated 24 October 2002 (T4, p12) indicates that the Applicant had an infection in his stomach called helicobacter pylori which requires a course of specific treatment. The extent to which this indicates the condition’s temporary nature is speculative.
The Tribunal notes that the Report of Dr Sokolovska, dated 8 November 2002 (T6, p15) appears to confirm a diagnosis of gastro-oesophageal reflux disease and appears to contradict Dr Kelly’s report in that Dr Sokolovska indicates that the current impact of this condition on the patient’s ability to function is expected to persist for more than 24 months. This opinion of Dr Sokolovska would indicate that the condition appears to be permanent in the sense of its longevity. The Medical Report of Dr Sokolovska, dated 19 August 2003 (Exhibit A1) re-iterates this condition by stating that the Applicant suffers from gastro-oesophageal reflux disease.
Alternatively, the Medical Report of Dr Wassenaar, dated 19 December 2003 (Exhibit R1), comments that the reflux condition is under control with medication and there are minor symptoms existing when eating certain foods. The Report indicates that the Applicant is temporarily unfit for all work for a period of 6 months pending a surgical opinion in relation to this Transcient Ischaemic Attacks (TIA’s).
The Tribunal considers that the appropriate rating for the Applicant’s conditions should be assessed under Table 11.1, as follows:
“TABLE 11.1 GASTROINTESTINAL: STOMACH, DUODENUM, LIVER AND BILIARY TRACT
Rating Criteria
NILPeptic ulcer/oesophagitis/ liver disease: mild symptoms despite optimal treatment.
TEN Nausea and vomiting: moderate symptoms despite optimal treatment
Peptic ulcer/oesophagitis: continuing frequent symptoms despite optimal treatment
Past gastric surgery with moderate dyspepsia and dumping syndrome
Established chronic liver disease. Symptoms (eg fatigue, nausea) may cause minor loss of efficiency in daily activities but rarely prevent completion of any activity.
TWENTY Constant dysphagia requiring regular dilatation
Vomiting: severe, not controlled despite optimal medication, and causing significant weight loss
Peptic ulcer refractory to all treatment including surgery or with complications eg bleeding or outlet obstruction
Established chronic liver disease. Symptoms (eg, more persistent fatigue, nausea, abdominal pain) may prevent or lead to avoidance of some daily tasks and simple tasks will usually aggravate symptoms of fatigue. Most daily activities can be completed but only with some difficulty.”
After assessing the medical evidence on this condition, the Tribunal concurs with the Social Security Appeals Tribunal in awarding the Applicant an impairment rating of 10 points for this condition under Table 11.1.
Lesion on the Left Lung / CAL
The extent to which this condition has been fully investigated, treated and stabilised is debatable. The Medical Report of Dr Sokolovska, dated 8 November 2002 (T6, p17-18) makes a presumptive diagnosis of a condition involving a lesion on the left lung and comments that further investigations are planned to confirm the diagnosis. The Medical Report of Dr Wassenaar (HSA Medical Adviser) dated 13 January 2003 (T9, p54) states “he (the Applicant) has a suspicious lesion on chest xray but this was apparently found to be benign on biopsy according to his nephew who accompanied him but this again is unclear”. The report refers to the fact that the Applicant at that time was scheduled to see a respiratory specialist on 29 January 2003. The Tribunal has not received any such Report from that scheduled appointment date. In her most recent useful report, Dr Sokolovska refers only to CAL and not left lung lesion.
As a result of the lack of definitive evidence leading to a fully investigated, treated and stabilised analysis of this particular condition, the Tribunal cannot award any impairment rating points to the Applicant.
Transient Ischaemic Attacks
Episodes of dizziness and unconsciousness have more recently been referred to as Transient Ischaemic Attacks (“TIA’s”). It appears that during the time of the original claim, this condition had not been completely investigated. With respect to this, the Tribunal has regard to paragraph 4 of the Introduction to the “Tables for Assessment of Impairment of Disability Support Pension” (Schedule 1B of the Act) which provides that:
“For an impairment rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised…The condition must be considered to be permanent. Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of the available evidence, it is more likely than not it would persist in the foreseeable future. This will be taken as lasting for more than two years”.
The Medical Report of Dr Mills, dated 30 September 2003 (Exhibit A2), clinically diagnoses the Applicant as having Transient Ischaemic Attacks which is a condition that Dr Mills purports to be fully documented, diagnosed, investigated, treated and stabilised. Dr Mills applied Table 21.1 of the “Tables for Assessment of Impairment of Disability Support Pension” and maintained that the Applicant met the inclusion criteria for Level 4 which states “Major restrictions in many everyday activities. Capacity for self-care is increasingly restricted, leading to partial dependence on others”. Dr Mills concluded that applying Table 21.3 and 21.4, the Applicant attracts a ten percent impairment rating and thus should be awarded 10 points. Given this is the most authoritative diagnosis, the Tribunal generally concurs with the evidence available from Dr Mills and considers ten points for this impairment is warranted.
As a result, the Applicant does satisfy subsection 94(1)(b) of the Act, which states that the impairments must attract a rating of 20 impairment points or more under the Impairment Tables. It is therefore necessary to determine whether the Applicant has a continuing inability to work, as defined in subsection 94(1)(c) of the Act.
Subsections 94(2), (3), (4) and (5) of the Act, are relevant to this question:
“Meaning of continuing inability
94 (2) A person has a continuing inability to work if the Secretary is satisfied that:
(a)the person’s impairment is of itself sufficient to prevent the person from doing:
(i) the person’s usual work; and
(ii) work for which the person is currently skilled;
for at least 2 years; and
(b)either:
(i)the person’s impairment is of itself sufficient to prevent the person from undertaking educational or vocational training during the next 2 years; or
(ii)the person’s impairment does not prevent the person from undertaking educational or vocational training but such training is not likely to equip the person, within the next 2 years, to do work for which the person is currently unskilled.
94 (3) In deciding whether or not a person has a continuing inability to work under subsection (2), the Secretary is not to have regard to:
(a)the availability to the person of work in the person’s locally accessible labour market (unless subsection (4) applies to the person); or
(b)the availability to the person of educational or vocational training.
94(4) For the purposes of subparagraph (2) (b) (ii), if a person has turned the Secretary may, in considering whether educational or vocational training is likely to equip the person to do work, have regard to the likely availability to the person of work in the person’s locally accessible labour market.
94 (5) In this section:
‘educational or vocational training’ does not include a program designed specifically for people with physical, intellectual or psychiatric impairments;
‘work’ means work:
(a)that is for at least 30 hours per week at award wages or above; and
(b)that exists in Australia, even if not within the person’s locally accessible labour market.”
The Tribunal finds that Mr Avramoski’s impairments are sufficient to prevent him doing “his usual work” and work for “which he is currently skilled” (ie concreter/labourer) for the next two years. Further, educational or vocational training is not, in the opinion of the Tribunal, likely to equip Mr Avramoski to do work for which he is currently unskilled.
DECISION
The decision under review of the Social Security Appeals Tribunal of 14 May 2003 is set aside. In substitution thereof the Tribunal finds that the Applicant does qualify to receive disability support pension from the date of claim which is 11 November 2002.
I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: Neil Glaser
Associate
Date of Hearing 26 March 2004
Date of Decision 21 May 2004
Advocate for the Applicant Mr Avramoski (Self Represented)
Advocate for the Respondent Mr Lozynksy
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