Bedelovski and Secretary, Department of Family and Community Services

[2004] AATA 1376

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1376

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/1023

GENERAL ADMINISTRATIVE  DIVISION		)
Re		VASIL BEDELOVSKI

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal  REAR ADMIRAL A R HORTON AO

Date 22 December 2004

Place Sydney

Decision The decision under review is set aside and in substitution thereof, the   Tribunal decides that Mr Vasil Bedelovski is eligible for the Disability Support Pension.

[Sgd] Rear Admiral A R Horton AO, Member  

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – application of section 94 of the Social Security Act 1991 - impairments – applicant sustained head injury in work place in 1989 – subsequently employed on light duties until redundancy in 2003 – assessment of impairment rating – criteria of 20 points not met – assessment of ongoing inability to work – criteria not met – decision under review is set aside.

Social Security Act 1991 – section 94

Social Security (Administration) Act 1999 – schedule 2 part 2

REASONS FOR DECISION

22 December 2004   REAR ADMIRAL A R HORTON AO        

1.      This is an application to the Administrative Appeals Tribunal (“the Tribunal”) to review a decision of the Social Security Appeals Tribunal (“SSAT”) on 19 July 2004 that affirmed a decision of an Authorised Review Officer (“ARO”) of Centrelink on 21 May 2004 that Mr Vasil Bedelovski (“the Applicant”) was not eligible for the Disability Support Pension (“DSP”).  The original decision in this matter was made on 20 October 2003.

2. The decision of the Tribunal is that Mr Bedelovski is eligible for the DSP. He has physical and psychiatric impairments and meets the criteria in section 94(1)(a) of the Social Security Act 1991 (“the Act”). The combined impairment rating is assessed as 20 points and thus the conditions of section 94(1)(b) of the Act are met. The Tribunal does consider that Mr Bedelovski has a continuing inability to work as required under section 94(1)(c) of the Act.

REASONS FOR THE DECISION

3. At a hearing on 1 December 2004, Mr Bedelovski was self represented. Mr L Carter, an advocate from Centrelink, appeared for the Secretary, Department of Family and Community Services (“the Respondent”). The Tribunal was assisted by Mr Boris Petrusev, an interpreter fluent in the Macedonian language. Mr Peter Bedelovski, the son of the Applicant, gave oral evidence. The Tribunal took into evidence the documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T-docs), and the Respondent’s Statement of Facts and Contentions dated 12 November 2004 (Exhibit R1).

Background and Legislation

4.        Mr Bedelovski accepted a redundancy package from his employers, BHP, in May 2003.  He lodged a claim for the DSP on 16 July 2003 in respect of the ongoing effects of a work place head injury suffered in 1989.   Predominantly on the basis of a Work Capacity Assessment on 8 October 2003 by Australian Personnel Management, which opined that Mr Bedelovski “should be able to return to full time work within six months in light, less skilled duties”, the claim was rejected.  This decision was affirmed by an ARO on 12 December 2003.  In the light of a report subsequently received from Dr S Dragutinovich, Clinical Psychologist, dated 12 March 2004, the ARO referred the matter to Health Services Australia (“HSA") for a further opinion.  That opinion following assessment by Dr E Wassenaar was to the effect that Mr Bedelovski was unfit for all work for 12 months pending vocational rehabilitation and a trial of work.  In turn an ARO upheld the previous decision that Mr Bedelovski was not eligible for the DSP.

5. On review by the SSAT, impairments of head injury, knee pain and hypertension were considered, impairment ratings of 15 points, nil points and nil points under Tables 20, 4 and 20 of the Impairment Tables at Schedule 1B of the Act being assigned respectively. As the minimum combined total of 20 points had not been achieved, the SSAT did not need to consider whether Mr Bedelovski had a continuing inability to work.

6. Section 94 of the Act 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."

7. Pursuant to Schedule 2 Part 2 of the Social Security (Administration) Act 1999, Mr Bedelovski must meet the requirement for the DSP in the period between the date of lodgment of the claim, that is 16 July 2003, and a date 13 weeks thereafter, that is 15 October 2003. 

EVIDENCE

8.        Mr Bedelovski, born on 11 June 1951, was educated to the equivalent of year 10 before migrating to Australia in 1968.  He has received no further formal education.  Shortly after his arrival in this country he gained employment with BHP as a furnace operator.   In 1989 he suffered a work place injury when hit on the head, the result of which led to him being hospitalised for a period and off work for about 15 months.  On his return to work, initially for one to two hours daily and gradually returning to full time work, he was employed on light duties in an administrative capacity.

9.        His duties for the next 10 years or more consisted of acting as a courier, carrying out routine office functions such as photocopying, and collecting and conveying reports within the worksite.  In 2003 he was offered, and accepted, a redundancy package, his evidence being that BHP was unable to offer any further work suitable to his diminishing medical condition, particularly as new technologies were introduced, and his employment was terminated. 

10.      Two reports for BHP from Dr I Tague, Occupational Physician, are relevant to the circumstances of his termination by BHP.   On 26 February 2002, Dr Tague wrote “He has been on permanent restrictions for 6 years, and it is my opinion, based on todays assessment and his medical records, that he would be unable to cope with heavy manual tasks. As such he would be unsuitable for duties with KSS (Port Kembla Steel Works).   He is coping with his duties of a clerical position but his skills are very limited primarily because of his medical condition”.  In a later report of 14 May 2003, Dr Tague stated “…Based upon his most recent medical assessment, his past medical history, his skills base and his limited potential for retraining, it is highly unlikely he would be able to find a suitable position (referring to one with permanent restrictions), within BHP steel businesses”.    Mr Bedelovski agreed with the opinions of Dr Tague.    

11.      Mr Bedelovski gave evidence that since his employment was terminated, he does “nothing much” but assists with shopping.  He stated that he is extremely nervous, becomes depressed unless he can get outside the home, that his nerves are bad, and his sleep is disturbed each night.  He cannot accept any adverse criticism, and is easily irritated.  His family has come to accept his irritability, although they cannot understand why he becomes irritable.

12.      He has had headaches and neck pain since his head injury, and he suffers from dizziness about every second day.  He feels the headaches are getting worse.  He also has ringing in the left ear, which he attributes to his head injury.  His headaches are responsible for a loss of memory and concentration.  He sees his general practitioner, Dr G Sharma, every month for a check up;  he takes Isoptin for hypertension, Lipitor to control cholesterol, and Panadeine Forte twice a day when he has a  headache.  He stated that he is unable to attend functions or activities without suffering restlessness the following day.  He can drive short distances, but if he feels dizziness is imminent, he stops to rest.   

13.      He was able to cope with his light duties at BHP, “work being better than remaining at home where he would be quarrelling with his wife.”  But he did not think he had been efficient otherwise BHP would have kept him on.  He considered every worker at BHP would have observed him getting upset and showing temper and irritability due to his head injury and headaches. He would like to return to light work but doubts his ability to perform any duties capably, and he considers himself physically unable to work.  On a typical day he might read the paper but is “very nervous” if he reads anything distressful.  His wife carries out household chores.  Mr Bedelovski is in receipt of Newstart Allowance.

14.      Mr Bedelovski stated that he suffers from pain in the left knee at various times and particularly when walking, where after about 150 metres, pain becomes severe.  He takes panadeine when necessary for this condition.  He sees no need at this time for an operation, and is concerned that such a procedure could lead to a worsening of the condition.

15.      Mr Peter Bedelovski and his wife presently live with Mr Bedelovski.  He stated that when he returned to the family home, he had difficulty coping with his father’s irritability and periods of anger, but he had learnt to cope and now takes him to the doctors and helps him where he can.  He described his father as being unhappy as his conditions, particularly that of dizziness, prevent him undertake such previous pursuits as soccer, or tasks such a lawn mowing. He considered his father to be “physically no good”, with his condition deteriorating as he gets older, and the expectation that the condition resulting from his head injury would get worse.

16.      In his Treating Doctors report (“TDR”) of 14 July 2003, which accompanied the claim for DSP, Dr Sharma diagnosed “head injury in 1989”, current symptoms of “dizziness” and described the effects as “feels dizzy with headaches and weak”, with an impact on ability to function as “more than 24 months”.   He noted medication of Isoptin (but did not refer to hypertension) and a condition of high cholesterol being treated with Lipitor.  Dr Sharma voiced no opinion as to Mr Bedelovski’s ability to return to work in that TDR but notes in a later medical certificate of 27 May 2004 that “I feel he is not suitable for work in the future”.  

17.      Reference has been made at paragraph 4 to a Work Capacity Assessment of 8 October 2003. Ms D Leaf-Milhem, Rehabilitation Consultant, recommended an impairment rating under Table 20 of the Impairment Tables for the head injury, of 10 points.  That recommendation was based on “most reported symptoms relate to physical impairment rather than cognitive or neurological function, the customer reporting vertigo in the mornings and headaches with physical activities and nerve stress/problems…”. The assessor considered Mr Bedelovski should be able to return to work within six months in “light less skilled work”, with limited language skills being a significant barrier.  

18.      As also referred to in paragraph 4 above, Dr Dragutinovich provided a report on 12 March 2004.   He treated Mr Bedelovski from 1989 to 1997.  He diagnosed fronto-temporal organic personality disorder resulting from the head injury in 1989, leading to a significant adverse impact upon cognitive and personality functioning, resulting in memory, concentration and new learning impairment, liability to mood affect and irritability.  He noted that counselling had ceased in 1997 when it was considered that Mr Bedelovski had plateaued.  He considered Mr Bedelovski could not undertake any work for more than 8 hours per week. 

19.      Dr Wassenaar of HSA subsequently assessed Mr Bedelovski under Table 6 of the Impairment Tables for psychiatric impairment, but made no recommendation as to impairment points, considering the condition to be temporary.  Hypertension and knee instability were given nil impairment ratings under the relevant tables.  In the Whole Person Assessment, Dr Wassenaar summarised her view as follows:

“I spoke with the HSA psychologist re the possibility of an up to date neuropsychological assessment which was not indicated given it’s cultural bias and language problems.  He suggested vocational rehabilitation and a trial of work to better assess the client’s work capacity.  It is likely he was under employed in his previous work.  He is thus unfit for all work for 12 months to enable this to occur”. 

ANALYSIS OF EVIDENCE AND DECISION

20.      The Tribunal finds that four conditions need to be considered:  impairment arising from the head injury suffered in 1989, knee pain, hypertension and high cholesterol.  The evidence is that hypertension and high cholesterol are controlled by medication and as such, nil impairment ratings are appropriate under Table 20. 

21.      Left knee pain is considered under Table 4.  The evidence of Mr Bedelovski,  restricted to identifying pain at various times, with severe pain after walking about 150 metres, is not supported by any diagnosis in respect of a knee condition by Dr Sharma.  Other than the taking of Panadeine on occasions, there has been no prescribed medication.  The evidence of Mr Bedelovski, and Mr Peter Bedelovski, in respect of limitations on physical activities, was in the context of the effect of headaches, and dizziness, rather than limitations imposed by problems with the left knee.  A rating other than nil points under Table 4 requires a restriction on the distance one can walk, as well as a demonstrable loss of strength, mobility, stability, balance and co-ordination.  These criteria, in respect of knee pain, were not evident in the evidence before the Tribunal, and hence a rating of nil points is appropriate.

22.      The appropriate table under which the condition arising from the head injury should be reviewed has seen different interpretations during the course of consideration of this claim.   The rehabilitation consultant, the original decision maker and the ARO saw Table 20, miscellaneous conditions, as appropriate.  Dr Wassenaar considered Table 6, psychiatric impairment, to be appropriate, (and that would relate to the views of Dr Dragutinovich but further considered the condition to be temporary.  The SSAT reverted to Table 20, and rated accordingly on the basis that all conditions were permanent.  The Respondent takes the same position and contends that an impairment rating of 15 points under Table 20 is appropriate.

23.      The condition resulting from the head injury in 1989, be it as described by Dr Dragutinovich as fronto –temporal organic personality syndrome, or otherwise, is clearly a permanent  condition having been present for many years.  Taking account of the reports by Dr Tague for BHP, and that of Dr Dragutinovich, it can effectively be considered treated and stabilised as required under the Impairment Tables.  The Tribunal is of the opinion that in this matter, Table 6 is too restrictive and given the flexibility that the Impairment Tables provide to take account of pain, Table 20 is more appropriate.

24.      Table 20 relevantly states:

TEN Mild to moderate symptoms which are irritating or unpleasant but which      rarely prevent completion of any activity. Symptoms may cause loss of efficiency in daily activities but minimal interference performing or persisting with work-related tasks. There is minimal effect/impact on work attendance.

Hypertension that is difficult to control despite intensive therapy but without end-organ damage

Potentially life-threatening condition which is currently not interfering with daily activities eg. malignancy in remission with a poor prognosis
Heart/Liver/Kidney transplants - well controlled (well functioning) with only mild systemic symptoms.

FIFTEEN Moderate to severe symptoms which are more distressing but prevent few everyday activities. Self-care is unaffected and independence is retained. Symptoms may have mild to moderate impact on ability to perform or persist with work-related tasks and/or attend work. Full-time work would still be possible.

Potentially life-threatening condition which is currently interfering with daily activities but self-care is unaffected.

TWENTY More severe symptoms with a decreased ability/efficiency to carry out many everyday activities. Most daily activities can be completed with some difficulty. Symptoms may prevent or lead to avoidance of some daily tasks and simple tasks will usually aggravate symptoms of fatigue. Symptoms cause significant interference with ability to perform or persist with work-related tasks. Symptoms may cause prolonged absences from work.”

25.      On balance, the Tribunal finds that an impairment rating of 20 points is appropriate.  The report from Dr Dragutinovich is persuasive, in that he attests to Mr Bedelovski having been his patient since 1989, and notwithstanding that treatment ceased in 1997, he remains of the opinion that the conditions arising from that accident, which he adequately describes, are debilitating and will continue to be so.   That this report was not written until some 10 months after the claim was lodged has no relevance, given the long term relationship with Mr Bedelovski.  The evidence of Mr Bedelovski related to the symptoms described by Dr Dragutinovich, and that of Mr Peter Bedelovski confirmed those symptoms and indicated that his father is unable to undertake previous activities.

26.      From the evidence given by Mr Bedelovski, the circumstances relating to the termination of his employment with BHP had as much to do with re-organisation and the introduction of newer technologies into the company as to the limitations imposed on him by his medical condition.  The reports by Dr Tague confirm an inability to cope with heavy manual tasks, and very limited skills in clerical duties “because of his medical condition”. The second report refers to recent medical assessment and history and limited potential for retraining. In the view of the Tribunal these add weight to the view that 20 points is appropriate. In summary, the Tribunal finds that Mr Bedelovski has a combined impairment rating of 20 points and thus meets the criteria in section 94(1)(b) of the Act.

27. Section 94(1)(c) requires that Mr Bedelovski have a “continuing inability to work”. This expression is further defined in section 94(2) of the Act, requiring that the impairment of itself must be sufficient to prevent Mr Bedelovski doing any work within the next two years (from the date of claim) and to prevent him undertaking training or such training would be unlikely to lead to him being able to work in the next two years. Work is defined as at least 30 hours per week at award wages or above in Australia. The legislation is quite precise in requiring these conditions to be met, and in stating that regard is not to be had to factors outside those criteria.

28.      The rehabilitation consultant considered Mr Bedelovski would be able to return to full-time work in 6 months.  The relevance of 6 months is not understood given that the conditions arising from the head injury are permanent.  Dr Wassenaar suggests vocational rehabilitation and a trial of work in order to assess work capacity.  On the other hand, Dr Sharma and Dr Dragutinovich, who have both treated Mr Bedelovski over a considerable period, respectively believe he is “not suitable for work in the future” and “cannot currently do his usual work/study or any other work, for 8 hours or more per week.”  On balance, and taking account of the views of Dr Tague, the Tribunal finds that Mr Bedelovski has a continuing inability to work and thus meets the requirements of section 94(1)(c) of the Act.

29. That being the case, Mr Bedelovski meets the criteria in section 94(1) of the Act, and is eligible for the Disability Support Pension. The decision under review is therefore set aside.

I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of REAR ADMIRAL A R HORTON AO

Signed:         Neil Glaser
  Associate

Date of Hearing  1 December 2004 
Date of Decision  22 December 2004
Representative for the Applicant    Self-represented
Advocate for the Respondent        Luke Carter