Bausse and Secretary, Department of Family and Community Services

[2004] AATA 745

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 745

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   N2004/139

GENERAL ADMINISTRATIVE DIVISION		)
Re		ATTILA BAUSSE

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal  Rear Admiral A R Horton AO, Member  

Date 16 July 2004

Place Sydney

Decision  The decision under review is affirmed.

[Sgd] Rear Admiral A R Horton AO, Member  

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – application of section 94 of the Social Security Act 1991 – physical and psychiatric impairments – assessment of impairment rating at 20 points – assessment of ongoing inability to work –criteria not met – decision affirmed

Social Security Act 1991 – section 94

REASONS FOR DECISION

16 July 2004                 Rear Admiral A R Horton AO, Member

1.      This is an application to review a decision of the Social Security Appeals Tribunal (“SSAT”) on 6 January 2004 that affirmed a decision of an Authorised Review Officer (“ARO”) of Centrelink on 28 August 2003 that Mr Attila Bausse (“the Applicant”) was not eligible for the Disability Support Pension (“DSP”).  The original decision in this matter was made on 15 July 2003.

2. At a hearing of the Administrative Appeals Tribunal (“AAT”) on 21 June 2004, Mr Bausse was self represented. Ms C Collis, an advocate from the Centrelink Service Recovery Team appeared for the Secretary, Department of Family and Community Services (“the Respondent”). The Tribunal took into evidence the documents provided by the Respondent pursuant to section 37 of the AdministrativeAppeals Tribunal Act1975, and a number of documents listed as exhibits in the attachment.  

BACKGROUND AND LEGISLATION

3. In February 2002, Mr Bausse lodged a claim for the DSP. On 6 August 2002, the SSAT affirmed a decision of an ARO which rejected the claim. There was no application for review by the AAT, and the matter is not before this Tribunal. On 20 May 2003, Mr Bausse lodged a further claim for the DSP. That claim and the decision that ultimately resulted from the SSAT is the current matter being reviewed. On 6 January 2004, the SSAT found that whilst Mr Bausse had a number of impairments, the total impairment rating as determined from the Impairment Tables at Schedule 1B of the Social Security Act 1991 (“the Act”) was 15 points and therefore the relevant legislative conditions were not met.  The SSAT did not proceed to determine whether Mr Bausse had a continuing inability to work.

4.      Section 94 defines the eligibility criteria for the DSP and states, relevantly:

“94.(1)            A person is qualified for the disability support pension if:

(a)       the person has a physical, intellectual or psychiatric impairment; and

(b)the person’s impairment is of 20 points or more under the Impairment Tables: and

(c)one of the following applies:

(i)        the person has a continuing inability to work;

…

(d)       the person has turned 16; and

(e)       the person either:

(i)is an Australian resident at the time when the person first satisfies paragraph (c) or

(ii)_     has 10 years qualifying Australian residence, …       

…

94.(2)   A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

(a)the impairment is of itself sufficient to prevent the person from doing any work within the next two years; and

(b)       either:

(i)the impairment is of itself sufficient to prevent the person from undertaking educational or vocational training or on-the-job training during the next 2 years; or

(ii)if the impairment does not prevent the person from undertaking educational or vocational training or on the job training – such training is unlikely (because of the impairment) to enable the person to do any work within the next 2 years.

94.(3)   In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:

(a)the availability to the person of educational or vocational training or on-the-job training: or

(b)if subsection (4) does not apply to the person, - the 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;

“on-the-job training” does not include a program designed specifically for people with physical, intellectual or psychiatric impairments;

“work” means work:

(a)       that is 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.”

5.      Pursuant to the legislation, Mr Bausse must meet the requirement for the DSP, as defined above, in the period between the date of lodgement of the claim on 20 May 2003 and a date 13 weeks thereafter, that is 19 August 2003.

EVIDENCE

6.      Mr Bausse was born in Romania in 1969, and migrated to Australia in 1985.   He completed years 11 and 12 secondary studies at a College of Technical and Further Education (“TAFE”), and went on to complete an Advanced Certificate in Management at TAFE in 1992 and a Bachelor of Business at the University of Technology, Sydney in 1996.  More recently, he completed a Graduate Certificate in Security Management (2000) and a Graduate Diploma of Science (Security Science) (2003) by correspondence at Edith Cowan University.   In 1999 he returned briefly to Romania where he met Erzsobet Balint. They subsequently married and have a daughter 2 ½ years old.   They live with his parents at Auburn. 

7.      Following short periods of employment from the age of 17, Mr Bausse established Wangate Pty Ltd in 1990, his parents being shareholders/directors.  The business operates in a sub-contracting environment within the security industry.  Mr Bausse described his start as being in field work, such as crowd control, dog patrols, and building security duties, wherein he individually provided such services.  In time he took on employees, and with it responsibilities for payroll control, wider financial management and the need to meet more regulatory controls.  He gave evidence that the company acquired shares and property, the latter apparently being the premises from which the company operates, and from which rental revenue is obtained.

8.      His evidence is that by about 1997 he was working in the order of 18 – 20 hours per day – too hard as he put it – and suffered a nervous breakdown.  A Workers Compensation claim was denied.  He saw Dr K Attia-Soliman, psychiatrist, who diagnosed schizophrenia.   Whilst he was placed on medication, his condition led to a gradual reduction in his work hours to 27 in 2000 and 16 in 2002, and in the size of the company and hence the extent of sub-contracting for security services.  It further led to a reduction in the study load he was able to carry, but as noted, he completed his most recent graduate program in 2003.

9.      In 2001, Mr Bausse fell on some stairs, landing on his left side and back.   GIO accepted his claim, and on the basis that he is able to work 16 hours per week, a workload given in evidence to the Tribunal, makes up wages at a rate equivalent to 11 hours work per week (Exhibit A6 refers).   Mr Bausse gave evidence that he could work for 16 hours per week, this limit being given to him by his general practitioner, Dr M Akladious, who also stated that he should not lift more than 7 kilograms.   Mr Bausse accordingly works single shifts in a 16 hour week, and was quite firm that he could not work longer hours given medical advice.

10.     He is employed as a concierge from 4 to 8 pm in a government building.  He described the conditions of his employment as quite acceptable as he was able to sit and stand as necessary, and each hour undertook rounds for 5 to 7 minutes.  However, with his back problem he could not undertake physical work, and he could not stand for lengthy periods as some other employments might require.  When asked why he had returned to a type of individual field work rather than employing other personnel for sub-contract work as had been the case some years earlier, he confirmed there was plenty of such sub-contracting work available, but he could no longer meet the demands of time and involvement necessary to control and direct employees.   The company presently has no employees.  He attributed this situation to his medical problems, his earlier nervous breakdown which he believed resulted from overwork, and the advice of his general practitioner.

11.     Mr Bausse was quite specific in cross examination, and to the Tribunal, that his back pain was his most significant impairment.  This pain radiates to his left buttock and leg and he gave evidence that it was continuous.  He cannot do physical work, he takes medication (panemax and/or celebrex) daily for pain, and he can no longer attend the gymnasium as he used to do about 3 to 4 times a week.   His wife massages his left lower back, left buttock and left leg with balm 2 or 3 times per week, this being confirmed in two affidavits from Mrs Balint.   Mr G Theoctistou, a friend and a director of G & B Securities for whom Wangate Pty Ltd has worked since 1990, has also provided an affidavit dated 25 February 2004, indicating that schizophrenia and back problems have prevented Mr Bausse accepting extra work from time to time.

12.     As evidenced in the T documents, and in Exhibit A4, Mr Bausse attended Mary Street Sports for physiotherapy.  The Tribunal notes the SSAT comment that Mr Bausse did not think physiotherapy had any positive effect, although he stated otherwise to the Tribunal, and hence he would discontinue it when the insurance company ceased paying.  He informed the Tribunal that he had done so in March 2004, and that Dr Akladious was trying laser treatment.  Mr Bausse stated his flexibility and speed of movement were restricted because of back pain, and that Dr Guirgis, consultant orthopaedic surgeon, had advised him to walk for 25 to 30 minutes daily, and informed him that an operation to resolve his back pain was inappropriate at this time.  His flexibility and speed in movement is restricted because of his back pain. 

13.     As regards other impairments, Mr Bausse was adamant that his schizophrenia was under control by seroquel and seranace medication. The former made him sleepy, to the point where he could not do night shifts, and he would not hear his daughter should she awake during the night.  The latter “works wonders”; he has no hallucinations nor hearing problems. 

14.     Medical documents available to the Tribunal from the treating doctors and the Health Services Australia (“HSA”) doctor on behalf of the Respondent, referred variously to conditions of visual field defect, decreased hearing left hearing, diabetes mellitus/obesity and hypertension.  Mr Bausse gave evidence that all these conditions were under control by prescribed medication.                  

MEDICAL EVIDENCE

15.     In a report of 28 January 2003, Dr Guirgis writes further to an earlier report which is not before the Tribunal, that there was “no MRI evidence of any intervertebral disc involvement.  There was however CT scan evidence of a minor left centro-oblique posterior disc at the L4 – L5 level.”   He referred to Mr Bausse complaining of attacks of feeling tingling and numbness in the left buttock area and down to the left foot and toes.  He re-affirmed those opinions in a later report of 20 March 2003, wherein he also referred to electrophysiological testing revealing “a slight decrease in the recruitment pattern within the right and left extensor digitorum brevis muscles and the right and left gastrocnemius muscles consistent with mild L5/S1 radiculopathy”.   He perceived the problem as being chronic pain syndrome, and recommended referral to a pain management centre.

16.     In a later report of examination dated 30 November 2003, Dr Guirgis noted at the outset, “no other significant past history”.   He opined that an accident had resulted in post-traumatic mechanical derangement of the lumbar area of the spine, with L4 – L5 intervertebral disc involvement, and restated the above observations in respect of the earlier electrophysiological testing.  He saw that chronic pain syndrome had ended in impairment, disability and handicap, and considered Mr Bausse unfit for activities that would require applying stresses to the back.  Conservative treatment was advised, there being no role for surgery.   A fourth report from Dr Guirgis dated 1 March 2004 (Exhibit A3), assessed a total body impairment rating under Table 5.2 of the Impairment Tables as 10 points.

17.     Treating Doctors reports by Drs Akladious and Attia-Soliman accompanied the claim for DSP in May 2003.  The former diagnosed low back pain and disc problems, following the accident on the stairs, and identified treatment by medication with celebrex, panadeine forte and panamax.  Dr Akladious saw the effects of this condition as an inability to lift heavy objects, sit or stand for long hours and walk long distances.  He referred to schizophrenia, unstable conditions of hypertension and  diabetes, with both being under treatment, and obesity.   He referred to hearing loss in the left ear, and this is confirmed by audiogram tests.  He considered Mr Bausse to be physically and mentally unstable and unfit for any type of job. 

18.     Dr Attia-Soliman noted back pain and solar retina burning but dwelt on schizophrenia.  She did not refer to any inability to function, provided medication continued.  She referred to drowsiness and weight gain because of the medication.  She expected the condition to deteriorate.  Evidence is before the Tribunal from Auburn Alpha Pharmacy confirming the supply of various prescriptions relating to the above conditions.

19.     The remaining medical report is that of Dr Lee, Medical Advisor of HSA dated 2 July  2003.  His opinions are similar to those of Dr Ma of HSA who saw Mr Bausse in March 2002 in respect of the previous DSP claim.  Dr Lee noted that Mr Bausse was working 28 hours per week, this being in excess of the evidence given the Tribunal for that period.  Dr Lee considered the schizophrenia to be under “reasonable control” but with ongoing auditory hallucinations, no evidence of thought disorder, coherent speaking and reasonable functional capacity.  

20.     Dr Lee observed full back movement, and independent daily living.  Whilst he agreed with the diagnoses of decreased left ear hearing, visual field defect, hypertension and diabetes/obesity, he saw no evidence of functional impairment albeit accepting that some conditions were controlled with medication.  He opined that a total impairment rating of 10 points, for schizophrenia under Table 6 was appropriate, and that Mr Bausse was fit to work for 30 hours per week.  In forming this opinion, he seemingly discounted the opinion of Dr Akladious that he is “very unfit to any type of job”,  noting that Dr Akladious had certified Mr Bausse as fit to drive earlier in 2003.

ANALYSIS AND FINDINGS

21. The Tribunal finds on the evidence that Mr Bausse has impairments of lumbar back pain, schizophrenia, hearing loss in the left ear, non-insulin dependent diabetes mellitus, hypertension, high cholesterol and solar retina burning leading to a visual field defect. Hence he meets the criteria in subsection 94(1)(a) of the Act. The Tribunal also finds, particularly from the evidence of Mr Bausse, that the conditions of diabetes, hypertension and high cholesterol are under control by medication, that there is no loss of functional control, and accordingly they do not warrant impairment ratings in accordance with the criteria in the Impairment Tables.

22.     The hearing loss in the left ear and the visual defect also do not warrant impairment ratings under the appropriate tables.  An audiogram in December 2001 confirms a moderate to severe hearing loss in the left ear, but with good speech discrimination.  Dr Akladious refers to some “loss of concentration and difficulty with communications”.  Dr Lee noted no difficulties during interview.  Nor did the Tribunal either in hearing or in concentration.   The SSAT noted visual acuity of 6/6 in the left eye and 6/9 in the right.   Such evidence is not before the Tribunal, but is accepted and the Report by Dr R Saad, ophthalmologist, in October 1998, revealed little disability.

23.     As earlier noted, Mr Bausse was quite specific that his back and referred pain was his most significant disability.   Table 5.2 of the Impairment Tables defines the criteria for rating impairment, and measures overall mobility.   Dr Alkadious refers to limitations in functional ability arising from lower back pain but does not indicate the extent of any restrictions in movement.   Dr Guirgis reports a loss of movement of one quarter as well as referred pain and accords an impairment rating of 10 points.  Dr Lee of HSA considers a nil impairment rating to be appropriate given he saw full movement, as well as full independence in daily activities.

24.     On the other hand, the SSAT found that Mr Bausse has a loss of one quarter of the range of movement, with some physical restrictions and pain.  The Tribunal places weight on the oral evidence of Mr Bausse, on the statements in support of his back problems, and on the limitations he referred to as regards standing and sitting and his attendance at the gymnasium, and concludes that a 10 point impairment rating under Table 5.2, which is considered to be the appropriate table, is the correct assessment.

25.     The remaining condition is that of schizophrenia.  Table 6 is relevant:

“NIL    Mild but regular symptoms which tend to cause subjective distress.  On most occasions able to distract themselves from this distress.  Minimal interference with function in everyday situations.  Exacerbation of symptoms may cause occasional days off work. (eg there may be some loss of interest in activities previously enjoyed.  There may be occasional friction with family, colleagues or friends).   Medical therapy or some supporting treatment from treating doctor may be required.

TEN     Moderate and regular symptoms and generally functioning with some difficulty.  (eg noticeable reduction in social contacts or recreational activities, or the beginnings of some interference with interpersonal or workplace relationships).  May have received psychiatric treatment which has stabilised the condition.  Minor effects on work attendance and/or ability to work but the impairment would not prevent full-time work. (eg. short periods of absence from work).”

26.      Dr Lee and the SSAT saw 10 points under Table 6 as being appropriate.   The Tribunal has considerable difficulty with this assessment.   Mr Bausse was quite specific that the condition was under control by medication, that he had only relatively minor symptoms associated with that medication, such as heavy sleeping and an inability to undertake night shifts, that he suffers no hallucinations nor hearing problems.   There was no suggestion of “regular or moderate symptoms” or functioning with “some difficulty” (other than drowsiness/sleeping).   There was no evidence of interference with interpersonal or workplace relationships.

27.     His inability to work more than 16 hours per week has arisen, by his evidence, from his back problems following his accident in 2001.  Indeed, his evidence was that Dr Akladious placed that limitation upon him, rather than he himself establishing it by trial as a limitation.  Again, on the evidence given to the Tribunal, the condition of schizophrenia plays no part in his ability to work longer hours or to seek suitable additional/alternate employment for which he might be well qualified academically and intellectually.  

28.     The criteria of 10 points under Table 6 refers to “psychiatric treatment which has stabilised the condition”. The evidence of the treatment of Mr Bausse is that of prescribing medication, which seemingly keeps him in a stable condition for the present, and which, from his evidence, leads to minimal side effects. In the circumstances the Tribunal considers a Nil impairment rating under Table 6 to be appropriate, and accordingly subsection 94(1)(b) of the Act is not met; the combined impairment rating being 10 points. Hence Mr Bausse is not eligible for the DSP.

29.     There is no necessity for the Tribunal to consider whether Mr Bausse has a continuing inability to work as would be required under subsection 94(1)(c), nor is it intended to undertake that task.   But it is appropriate for the Tribunal to make the observation, as indeed it did earlier, that notwithstanding the adverse conditions of his lumbar spine and referred pain, it might be argued that Mr Bausse appears to have set his own limitations on his hours of work.   Further, he undoubtedly has the intellectual capacity to consider work in a variety of appropriate fields should he so wish to. 

DECISION

30.     The decision of the SSAT that Mr Bausse is not eligible for the Disability Support Pension is affirmed.

Attachment to the decision in Bausse – N2004/139

Exhibit A1     -          Affidavit of George Theoctistou dated  25 February 2004

A2     -          Affidavit of Erzsebet Balint dated 26 February 2004

A3-          Report of Dr M Guirgis dated 1 March 2004 with attached Work Cover NSW medical certificates

A4     -          Mary Street Sports Physiotherapy and Rehabilitation report of   25 March 2004 

A5-          History Report from Auburn Pharmacy for period 1 January 2004 to 26 March 2004

A6      -          “GIO claim document”

R1      -          Respondent’s Statement of Facts and Contentions dated 4 May                  2004

I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of

Signed:         Neil Glaser
  Associate

Date of Hearing                  21 June 2004
Date of Decision  July 2004
Representative for the Applicant               Mr Bausse 
Advocate for the Respondent                    Ms C Collis