Brkic and Department of Family and Community Services

[2001] AATA 964

DECISION AND REASONS FOR DECISION [2001] AATA 964

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2001/290

GENERAL ADMINISTRATIVE DIVISION         )          
           Re      SVETKO BRKIC    
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal       Ms N Isenberg, Member   

Date26 November 2001 

PlaceSydney

Decision      The decision under review is affirmed. 
  ..............................................
  Ms N Isenberg

CATCHWORDS
SOCIAL SECURITY – disability support pension – physical impairment – entitlement to disability support pension – whether the Applicant had an impairment rating of 20 points or more under the impairment tables – whether the Applicant had a "continuing inability to work" – time for consideration of entitlement

Social Security Act 1991 – section 94
Social Security (Administration) Act 1999 – Schedule 2, clause 4

REASONS FOR DECISION

26 November 2001 Ms N Isenberg, Member   
decision under review                

1. This is an application for review by Mr Brkic, the Applicant, of a decision of the Social Security Appeals Tribunal ("SSAT") made on 15 February 2001 (T2) which affirmed a decision made by a Centrelink delegate of the Secretary, Department of Family and Community Services ("the Respondent") on 2 September 2000 (T16) to reject his application for disability support pension ("DSP"). This earlier decision was also reviewed and affirmed by an authorised review officer on 23 November 2000.
   appearances

2. A hearing was held before the Tribunal on 30 October 2001. Mr Brkic appeared on his own behalf, providing oral evidence to the Tribunal with the assistance of an accredited interpreter in the Croatian language. Mr Lozynsky, an advocate from the Advocacy and Administrative Law Team at Centrelink, represented the Respondent.
   documents before the tribunal

3. The Tribunal took into evidence the following documents: 
   Exhibit No     Description    Date   
   R1      Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T- documents T1-T32, pp1-108)
   R2      Respondent's Statement of Facts and Contentions     24 October 2001     
   R3      Respondent's Statement of Issues          26 March 2001        
   R4      Report of Dr Chew  8 June 2001 
   A1      Ultrasound Report of Dr Waterland         3 December 1999   
   A2      Report of Dr Berkowski      11 May 2001
   A3      Report of Dr Berkowski      30 July 2001
   A4      T & A Skills Care Service letter     10 September 2001
   A5      T & A Skills Care Service letter     4 September 2001  
   A6      Medical certificate of Dr Berkowski          14 September 2001
   A7      Medical certificate of Dr Berkowski          6 September 2001  

issues before the tribunal

1. This application concerns a claim for DSP made on 13 August 2000. Entitlement to DSP is governed by section 94 of the Social Security Act 1991 ("the Act"), which provides as follows:

   "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) the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and

   (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, or has a qualifying residence exemption for a disability support pension; or
   (iii) is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:

   (A) is not an Australian resident; and
   (B) is a dependent child of an Australian resident;

   and the person becomes an Australian resident while a dependent child of an Australian resident. Note 1: For Australian resident, qualifying Australian residence and qualifying residence exemption see section 7.
   Note 2: for Impairment Tables see section 23(1) and Schedule 1B.

   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 2 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.

   Note: For work see subsection (5).

   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(4) For the purposes of subparagraph (2)(b)(ii), if a person has turned 55, the Secretary may, in considering whether educational or vocational training is likely to enable 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;
   "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 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.

   Person not qualified in certain circumstances
   94(6) A person is not qualified for a disability support pension on the basis of a continuing inability to work if the person brought about the inability with a view to obtaining a disability support pension or a sickness allowance or with a view to obtaining an exemption, because of the person's incapacity, from the requirement to satisfy the activity test for the purposes of job search allowance, newstart allowance, youth training allowance, youth allowance or austudy payment.
   Note: a person who is receiving a disability support pension may be automatically transferred to the age pension if the person becomes qualified for the age pension (see subsection 48(3)).

1. Insofar as section 94(1) is concerned, there was no dispute that Mr Brkic does have a physical impairment, he is greater than 16 years of age and he is an Australian resident. The issues in dispute in the current application, however, were whether he had an impairment of 20 points or more under the impairment tables and, if so, whether he had a "continuing inability to work".

2. There was no dispute that the physical impairment suffered by Mr Brkic relates to left eye blindness, gout and liver dysfunction.  There was some dispute in relation to his back and neck. 
   TIME FOR CONSIDERATION OF ENTITLEMENT TO DSP

Schedule 2, clause 4 of the Social Security (Administration) Act 1999 provides:

"4 Start day—early claim
(1) If:
(a) a person (other than a detained person) makes a claim for a relevant social security payment; and
(b) the person is not, on the day on which the claim is made, qualified for the payment; and
(c) assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(d) the person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.

(2) For the purposes of subclause (1), the following provisions have effect:
(a) subject to paragraph (b), any social security payment, other than newstart allowance or special benefit, is a relevant social security payment;
(b) parenting payment is not a relevant social security payment in the case of a person who becomes qualified for the payment because of the birth of a child.

(3) If:
(a) a detained person makes a claim for a social security payment; and
(b) the person is not, on the day on which the claim is made, qualified for the payment; and
(c) the person becomes qualified for the payment within 3 weeks after the claim is made;
the claim is taken to be made on the first day on which the person is qualified for the payment.

(4) Subclause (3) does not have effect in relation to a claim for a crisis payment or for a social security pension or benefit.

(5) If:
(a) a person makes a claim for a newstart allowance; and
(b) the person is in receipt of youth allowance or austudy payment; and
(c) the claim is made not earlier than 4 weeks before the day on which, in the opinion of the Secretary, the person will become qualified for a newstart allowance;
the claim is taken to be made on the day on which the person becomes qualified for that allowance.

(6) If:
(a) a person makes a claim for a newstart allowance or youth allowance; and
(b) when the claim is made, the person is serving a liquid assets test waiting period;
the claim is taken to be made on the first day on which the person is qualified for a newstart allowance or youth allowance, as the case may be.

(7) In this clause:
detained person means a person who:
(a) is in gaol; or
(b) is undergoing psychiatric confinement because the person has been charged with an offence."

1. Therefore, the Tribunal had to consider if Mr Brkic was entitled to the DSP on 14 August 2000 or at any time until 13 November 2000.
   background

2. Mr Brkic is presently 53 years of age. On 22 June 1993 the Compensation Court of NSW made orders with respect to Mr Brkic's claim for compensation (T4) in respect of permanent impairment of his back, and both legs at, and above, and below, the knee. By way of treatment for his back, Mr Brkic underwent a laminectomy, performed by Dr Benta.

3. In May 2000 Mr Brkic was involved in a motor vehicle accident in which he injured his neck and low back. On 14 August 2000 Mr Brkic lodged a claim for DSP (T11) supported by a report by his treating doctor, Dr Berkowski (T12). He was diagnosed with chronic low back pain, gouty arthritis, left eye problems and liver dysfunction. Dr Berkowski considered him to be unfit for work and considered he would not benefit from vocational (work) training or rehabilitation.

4. At the request of the Respondent, Mr Brkic was examined by Dr Chew, a HAS Medical Adviser (T14) on 25 August 2000. Dr Chew rated Mr Brkic at 5 points under Table 14 for his left eye and nil points for liver dysfunction and gout. He considered Mr Brkic's neck and back conditions to be temporary conditions. He considered Mr Brkic fit to return to work within 12-24 months and considered he would benefit from training.

5. On 5 October 2000 a report was prepared by Dr Bentivoglio (T22) in which he said:

   "From the point of view of him getting back to work, he has a 20 to 25% permanent impairment of back function which will prevent him from doing any of the work that he did before the injury, that is heavy manual labour. At best he will have to be re-trained in something appropriate which entails only moderate activity to his back, sitting for short periods of time and basic walking around. He will have to be re-trained which is going to be a problem because of his language, which is preventing him from adequate re-training."

6. At the suggestion of Dr Benta, Mr Brkic saw Mr Yiasemides, a Physiotherapist, on a number of occasions and he provided a report dated 3 January 2001 (T30). Mr Yiasemides said:

   "During his treatment, Mr Brkic has shown considerable improvement with ROM & muscle power/endurance increased, & pain decreased to a minimal level."

Mr Yiasemides also made some observations about Mr Brkic's range of movement of his back.

1. On 11 May 2001 a treating doctor's report was completed by Dr Berkowski (Exhibit A2). He stated that Mr Brkic had lumbar discopathy, gouty arthritis, left eye blindness and liver dysfunction. The doctor considered Mr Brkic unfit for work within two years but thought he could return to face-to-face study for at least 15 hours per week.

2. Mr Brkic was again examined by Dr Chew, on 8 August 2001 (Exhibit R4). Mr Brkic was given 10 points for back pain, 5 points for left eye blindness and nil points for gout and liver dysfunction. He was found to be fit for light sedentary work and would benefit from training.

3. On 30 July 2001, a letter was provided by Dr Berkowski commenting upon Mr Brkic's range of movement (Exhibit A3).
   evidence of mr brkic

4. The Tribunal asked Mr Brkic to describe his conditions and afforded the representative for the Respondent the opportunity to ask Mr Brkic questions. Mr Brkic told the Tribunal that his low back is his main concern.  He said he had a 'slight problem' in 1989 and was 'on compo' for about two and a half years.  He returned to work as a bricklayer until, on 20 July 1998, about half way to work in his car he experienced pain in his back and legs and his legs 'wouldn't work'.  He couldn't get out of the car and had to be helped out.  His children took him to his then GP.  He was referred to a specialist who said he needed an operation.  He sought another opinion from his current GP, Dr Berkowski, who referred him to Dr Bentivoglio.  Dr Bentivoglio agreed that the only treatment available was the performance of a laminectomy, and this was done.  Mr Brkic said this alleviated his problems for about seven to eight months.  When he complained to Dr Bentivoglio, he was told it was 'in his mind'.  Following a bone scan, however, some inflammation was observed and Dr Bentivoglio recommended injections, which might have been cortisone.  Mr Brkic refused these and only saw the doctor a couple more times. 

5. On 10 May 2000, while on his was to the Centrelink office in his car, while stationary at traffic lights, he was hit from the rear by another car.  He was taken by ambulance to Bankstown hospital.  He was worried that he might have damaged his back operation site and went back to Dr Bentivoglio who again suggested injections.  Again these were refused by Mr Brkic, but he did take up the suggestion of attending physiotherapy.

6. Mr Brkic found that the physiotherapy would give him some relief, and the sessions would alternate treatment of his neck and low back.  However, his pain would return after a couple of days. If the pain was bad he would go three times a week, if not so bad, he would go only once a week.  After his session he would 'feel great'.  Mr Brkic stated he was not sure when he ceased the physiotherapy but it was possibly in February of this year.  He stopped because of the expense.  Overall, he thought there was no progress at all.

7. The Tribunal brought to Mr Brkic's attention the report of Mr Yiasemides, the physiotherapist (T30/106), wherein he said:

   "During his treatment, Mr Brkic has shown considerable improvement with ROM and muscle power/endurance increased, and pain decreased to a minimal level."

Mr Brkic said that he did not believe he is 'as good as he (Mr Yiasemides) said I am'.

1. As to the pain, Mr Brkic said it is mainly in his buttocks and radiates to his calf and even his big toe.  He said he often has 'no feeling' in his feet and that it feels like he is walking on rocks.  He has a 'stretched' feeling from his buttocks to his knees.  The pain is with him most of the time, and the left side is worse than the right.  He takes celebrex, vioxx, and voltarin.  Recently he has been taking celebrex daily.  He previously took panaedeine forte but this had some side effects.  The medication provides relief for only about an hour.

2. Mr Brkic stated that when he gets out of bed in the morning he is unable to put his socks on and must do exercises before he can manage this.  His day consists of a routine of walking to the shop to get the paper, strolling around the backyard, exercises, watching TV from a hard mat on the floor, going to Centrelink and the doctor.  When he goes shopping with his wife he cannot push the trolley.  He carries only light parcels such as the bread.  He can drive for up to half an hour.  Mr Brkic travels by train but the stairs at the station cause him difficulties.  He can no longer run or walk as far as he used to and he can't bend both knees at the same time.  He is unable to sit in the same position for extended periods. Mr Brkic said that the motor vehicle accident exacerbated his back condition but then it was the same as before.

3. As to his neck pain, Mr Brkic said that his neck was injured in the motor vehicle accident.  It still causes him discomfort and when he turns it there is a 'clicking noise'.  When driving the car he can't turn all the way around.  He said he consulted Dr Bentivoglio about his neck, as well as his back, when he saw him after the motor vehicle accident.

4. As to his gout, Mr Brkic said that he had that condition for six to seven years.  He used to have attacks three to four times a year, but now it was five to six times per year.  He said that last year he had three attacks and has had two this year, the last one being a couple of months ago, and before that at about Easter.  When experiencing an attack he is unable to walk for three to four days.  He takes medication to prevent attacks, but if he should eat a tomato or drink a can of Coke, he will get an attack nonetheless.  His symptoms are the swelling of his big toes and the left ankle.  Usually only one area is affected with each attack, although twice he has been affected in both toes at once.  For a couple of days during the attack he must use a walking stick to get around.  During an attack he is unable to drive the car and just lies on the hard mat on the floor.

5. In respect of his liver he said that it had only come to his attention when he had had some blood tests following his laminectomy.  Following a weight loss of about 9kgs his condition is '60-70% better'. He requires no medication and is asymptomatic apart from (reducing) elevated levels, which are monitored by blood test every three months. He has been ordered to lose more weight and continued improvement is expected.

6. Mr Brkic has had an artificial left eye since childhood.  His other eye is satisfactory and he has this checked twice per annum.  He has glasses for reading and distance, and can drive, read and watch TV without problems.

7. The domestic arrangement in Mr Brkic's household are that his wife does all the cooking, cleaning and washing.  He can make a sandwich for himself.  His only problem in looking after himself is in putting on his socks, as previously discussed.  Previously he used to occasionally do the vacuuming.  Around the home his son, who lives at home, does the gardening, mowing and puts out the bins.  He used to play soccer and tennis but has not done so since the laminectomy.  His friends all still play these sports.

8. Mr Brkic discussed his work.  He had been a bricklayer and it was heavy, physical work which required a lot of bending and lifting.  Dr Bentivoglio told him that it was that work which had damaged his back in the first place.  Retuning to that type of work, the doctor had said, was 'out of the question'.

9. Mr Brkic stated that he had made enquires about light work because Centrelink had told him to.  Adverse comments had been made because of his age.  Centrelink had told him to go to Job Network and as a result Mr Brkic started working 13 hours per week in a new job. The job is to last 13 weeks and started three weeks ago.  He is working at moulding plastic flowers and he generally sits down, but there is opportunity to stand also, however this is not quite as convenient.  He works for three hours on each of three days, and for four hours on Thursdays.  He has Fridays off.  After work he goes home, has a shower, makes lunch and watches TV from the mat on the floor, later walks in to the garden and around the block.

1. Mr Brkic said that if there were appropriate training provided, and he could sit down and move around, he would be prepared to give a job a go. Centrelink has told him he must get a job.
   medical evidence

2. The medical evidence is most conveniently reviewed by condition.

   back pain

3. When he examined Mr Brkic in August 2000 Dr Chew (T14/70) concluded that his back condition was only temporary because it was an aggravation of his previous low back pain. In his report of 25 August 2000, Dr Chew, HAS Medical Adviser, stated that there had been a recent aggravation of Mr Brkic's low back pain due to the motor vehicle accident in May 2000. He concluded that Mr Brkic's back condition was a temporary one (T14, p70). He found Mr Brkic to be fit for full-time sedentary work within 12 to 24 months.

4. Dr Bentivoglio, Neurosurgeon, provided a report dated 5 October 2000 (T22, p89). Mr Brkic had complained of left buttock pain which the doctor thought might be related to some facet joint inflammatory disease and as a result, was going to investigate it by having a bone scan. Dr Bentivoglio stated:

   "From the point of view of him getting back to work, he has a 20 to 25% permanent impairment of back function which will prevent him from doing any of the work that he did before the injury, that is heavy manual labour. At best he will have to be re-trained in something appropriate which entails only moderate activity to his back, sitting for short periods of time and basic walking around."

5. Mr Yiasemides, Physiotherapist, provided a report dated 3 January 2001 (T30, p106). At that time Mr Brkic was continuing to attend physiotherapy and showed considerable improvement with range of movement, muscle power, and endurance. He had reduced pain to a level described as "minimal".

6. Mr Yiasemides also noted (T30):

   "At this stage it is expected that Mr Brkic continue to attend Physiotherapy on a 1-2 times per week basis so to ensure further progress (i.e. to increase ROM, paravertebral muscle power). I have also advised Mr Brkic to avoid lifting greater than 10kgs and avoid prolonged positions, especially those involving lumbar flexion."

7. In addition there was some discussion about the lumbar ROM assessed by Mr Yiasemides (T30/106), namely:

   "Flexion         NAD
   Extension:      75%
   RLF               75%
   LLF                60%
   RR                 75%
   LR                 75%"

8. By contrast, Dr Berkowski (Exhibit A3), following examination of Mr Brkic on 30 July 2001, said that he:

   "…demonstrated … 30 degrees of rear flexion and approximately 30 degrees of lateral flexion on both sides."

There was some consistency with the evidence of Dr Chew in his report of 8 June 2001 (Exhibit R4).

neck pain

1. After an x-ray of the cervical spine, Dr Watts found that Mr Brkic's invertebral disc spaces were well preserved with no evidence of instability between flexor and extension. There was no evidence of fracture or dislocation. Dr Watts noted early uncovertebral joint changes at C5/6 and C6/7 on the right but no significant bony encroachment on the intervertebral foramina (T9, p30).

2. The claim form completed by Mr Brkic on 13 August 2000 made no reference to neck pain (T11, p49), nor did the accompanying treating doctor's report completed by Dr Berkowski, dated 11 August 2000 (T12, p59).

3. In his report, dated 25 August 2000, Dr Chew found this condition to be a temporary condition since its onset was recent and because Mr Brkic stated that he was at that time receiving treatment. Dr Chew also found Mr Brkic's range of movement as being within normal limits (T14, p69). In his later report, dated 8 June 2001, Dr Chew made no mention of a cervical spine condition.

   gout

4. In the report of Dr Chew, dated 25 August 2000, he noted that Mr Brkic has this problem two to three times a year and that its exacerbation may cause occasional days off work (T14). In his report of 8 June 2001, Dr Chew noted that the condition is under control.

   liver dysfunction

5. In the report of Dr Mackie, dated 23 April 1999, he noted the following (T7, p28):

   "Small liver granulomas are defined. The gall bladder, pancreas and spleen are normal. No further pathology."

6. Dr Waterland, in his report dated 3 December 1999, noted that following a biopsy, there was no pain or haemorrhage detected on the ultrasound. The report of Dr Chew, dated 25 August 2000, mentioned no symptoms (T14, p73), although in his final report, dated 8 June 2001, Dr Chew noted mild symptoms.

   left eye blindness

7. The report of Dr Chew, dated 25 August 2000, noted that Mr Brkic has left eye blindness and would not be able to do work that involves stereoscopic vision (T14, p72). In his report of 8 June 2001, Dr Chew observed Mr Brkic as having "good corrected right visual acuity."
   impairment ratings

8. The first issue for the Tribunal to decide was whether Mr Brkic's impairment ratings under Schedule 1B of the Act totalled 20 points. Paragraph 4 of the Introduction to the "Tables for Assessment of Impairment of Disability Support Pension" (Schedule 1B of the Act) provides as follows:

   "For an impairment rating to be assigned the condition must be 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 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."  

1. There was no dispute that at the time of application and in the following three months, Mr Brkic's gout, liver dysfunction and left eye blindness were conditions which must be considered to be permanent.  Each had, at that time, been investigated, treated and stabilised.

2. The Tribunal then turned to consider the medical evidence, and the evidence of Mr Brkic, so as to determine the appropriate rating for each of these conditions.

   gout

3. Mr Brkic said that he has had gout for six to seven years.  While he used to have attacks three to four times a year, he thought they had increased although he has had only two so far this year.  His symptoms are the swelling of his big toes and his left ankle.  Usually it is only one spot affected per attack, although twice he has been affected in both toes at once.  For a couple of days during the attack he must use a stick to get around and he is unable to walk or drive the car for three to four days.  Although he takes medication to prevent attacks, some foods provoke an attack nonetheless.

4. Dr Chew, the only doctor to comment in relation to gout, was more conservative in his evaluation of Mr Brkic's condition, noting that the problem only occurs only two to three times per year, but conceding that it may cause occasional days off work.

5. Applying Table 21 in relation to intermittent conditions the Tribunal found that Mr Brkic's gout attracted ratings as follows:

   Severity   3  Loss of efficiency is discernible in
     many everyday activities. Some
     elements of self-care are restricted  but in most respects, independence  is retained. Bed-rest is often
     necessary during an attack.         
   Duration  prolonged      Lasting more than four hours.

   Severity - grading coding   F

   Assignment of rating          20+days

1. This produced a rating of 5 impairment points.  It should be noted that the outcome was the same whether the Tribunal accepted two to three times per year (Dr Chew), three to four times per year (Mr Brkic's evidence as to past frequency) or five to six times per year (Mr Brkic's impression of current frequency).

   liver dysfuncftion

2. The Tribunal reviewed the evidence in the light of Table 11.1. Following a weight loss of about 9kgs Mr Brkic's condition is '60-70% better'.  He takes no medication and is asymptomatic apart from (reducing) elevated levels, which are monitored by blood tests every three months.

3. The Tribunal had some doubts that Mr Brkic's condition had in fact stabilised, as he is continuing to show improvement.  Even if his condition was now properly regarded as 'permanent', under Table 11.1 it would attract a nil rating as his symptoms are mild.

   left eye blindness

4. Mr Brkic has had an artificial left eye since childhood.  His other eye performs satisfactorily and with glasses, he can drive, read and watch TV without problems. Applying Table 14, the Tribunal found the condition to attract a rating of 5 impairment points for permanent loss of stereoscopic vision.

   neck and back conditions

5. These two conditions were more problematic. The evidence in relation to Mr Brkic's neck was that he first experienced neck pain following the motor vehicle accident in May 2000. Xrays taken in June 2000 showed no fracture or dislocation, although some early uncoverterbral (ie degenerative) changes were noted. 

6. Mr Brkic attended physiotherapy, primarily for his back but the sessions would alternate treatment of his neck and low back.  He found that this would give him some relief, but his pain, presumably in both his neck and back, would return after a couple of days.

7. When Mr Brkic claimed for DSP in August 2000 Mr Brkic did not mention his neck, nor did his treating doctor, Dr Berkowski.  When examined by Dr Chew later in August Mr Brkic's range of movement of his neck was within normal range.  Neither Dr Bentivoglio nor Mr Yiasemides mentioned treating Mr Brkic's neck.

8. At the hearing Mr Brkic said his neck still causes him discomfort and when he turns it there is a 'clicking noise', and his ability to turn when driving the car is limited.

9. On the basis of the available evidence the Tribunal found that Mr Brkic's neck condition was, between 14 August and 13 November 2000, one which was being investigated and treated and had not then stabilised, although it may have done so at a later date. Accordingly a rating could not be assigned in relation to that condition.

10. As to Mr Brkic's back he told the Tribunal that this is his main concern.  Whereas he had previously had a 'slight problem' with his back (for which he had been off work for about two and half years) in July 1998 he suddenly experienced pain in his back and legs, such that he had to be helped out of his car.  He was referred to Dr Bentivoglio who advised that he required a laminectomy, and this was done.  Mr Brkic's evidence was that this had alleviated his problems for only about seven to eight months, after which Dr Bentivoglio had told him his problems were 'in his mind'.  Dr Bentivoglio however recommended injections, which Mr Brkic refused.

11. On 10 May 2000 Mr Brkic was involved in a motor vehicle accident which, he said, had initially exacerbated his back condition but then his back was 'the same as before'.

12. He again consulted Dr Bentivoglio who once more suggested injections.  Again these were refused but Mr Brkic did take up the suggestion of attending physiotherapy with Mr Yiasemides.

13. Mr Brkic found that after a session he would 'feel great' but his pain would return after a couple of days.  He would attend up to three times a week depending on the pain.  He ceased because of the expense, probably in about February of this year.  Overall he thought there was no progress at all and described in some detail his current symptoms and limitations.

14. By contrast, the report of Mr Yiasemides (T30/106), stated that Mr Brkic had shown considerable improvement as a result of treatment.  His range of movement and muscle power/endurance increased, and his pain decreased to a minimal level.  Significantly, Mr Yiasemides recommended, in his report of 3 January 2001(T30/106), that one to two sessions per week should continue "so as to ensure further progress".  Mr Brkic's evidence was that he had ceased attending, not because the treatment was offering no relief but because of the expense.

15. In August 2000 Dr Chew considered Mr Brkic's condition to be of a temporary nature only.

16. In October 2000 Dr Bentivoglio ordered a bone scan and was proposing further treatment by way of injections.

17. On the basis of this evidence the Tribunal found that between the relevant dates (ie 14 August 2000 and 13 November 2000) Mr Brkic's condition had not yet been fully treated nor had it stabilised.  In those circumstances, it could not properly be regarded as 'permanent' at the relevant time.  Accordingly, the Tribunal could not assign a rating in relation to that condition.

18. In coming to this view, the Tribunal makes no comment as to whether Mr Brkic's condition subsequently became permanent, and if so, when that occurred.

19. As the impairment ratings in relation to Mr Brkic's conditions of gout, liver dysfunction and left eye blindness do not total 20 impairment points, it was not necessary for the Tribunal to consider the other elements of section 94 of the Act.
    determination

20. For these reasons the Tribunal has no alternative but to find that the decision under review must be affirmed.

I certify that the 69 preceding paragraphs are a true copy of the reasons for the decision herein of MS N ISENBERG, Member

Signed: R Quinn     .....................................................................................
  Associate

Date/s of Hearing  30 October 20010
Date of Decision  26 November 2001
Counsel for the Applicant        self-represented             
Solicitor for the Respondent    Mr G Lozynsky