Buttigieg and Secretary, Department of Employment and Workplace Relations

[2005] AATA 1257

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1257

ADMINISTRATIVE APPEALS TRIBUNAL         Nº V2005/284

GENERAL ADMINISTRATIVE DIVISION

Re:MICHAEL BUTTIGIEG

Applicant

And:SECRETARY,

DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal:       Regina Perton, Member

Date:              19 December 2005

Place:             Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) Regina Perton

Member

SOCIAL SECURITY ‑ disability support pension ‑ whether 20 impairment points – whether condition stabilised and treated – decision affirmed.

Social Security Act 1991 ss 94(1), 94(2), Schedule 1B

Social Security (Administration) Act 1999 cl 4(1) of Schedule 2

REASONS FOR DECISION

19 December 2005  Regina Perton, Member

1.       Michael Buttigieg worked as a labourer for 28 years for a company that produced ink.   Despite back and other pain, he rarely missed a day’s work.  In December 2003, he was made redundant.  Mr Buttigieg is now 60 years old.  He was born in Malta and migrated to Australia as a young man. He left school after fifth grade.  His health has deteriorated since he stopped working.  The combination of ill health, age and lack of formal education has resulted in Mr Buttigieg being unable to obtain another job since his redundancy.  Mr Buttigieg currently receives Newstart Allowance (NSA), albeit at a reduced rate as his wife works.  He is currently exempt from the NSA activity test due to his medical condition.

2.       Mr Buttigieg applied for disability support pension (DSP) on 6 September 2004.  Centrelink administers the DSP for the Department of Employment and Workplace Relations. A Centrelink officer refused the application on 19 October 2004.  Mr Buttigieg was assessed as not having an impairment rating of at least 20 points under the Tables for the Assessment of Work-Related Impairment for Disability Support Pension (the Impairment Tables) in Schedule 1B of the Social Security Act 1991 (the Act).   On 4 January 2005, an authorised review officer (ARO) reviewed the decision and found that Mr Buttigieg was not eligible for DSP.  On 3 March 2005, the Social Security Appeals Tribunal (SSAT) affirmed the decision.  Mr Buttigieg lodged an application for review with this Tribunal on 6 April 2005.

3.       At the hearing on 1 December 2005, Mr Buttigieg represented himself.  His wife also gave evidence.  A Maltese interpreter translated some of Mr Buttigieg’s evidence.  Ms Kayren Paul, a Centrelink advocate, represented the respondent.

4.       The issue before the Tribunal is whether Mr Buttigieg satisfied the requirements for DSP as at 6 September 2004 or within 13 weeks of that date.    

EVIDENCE

5.       Mr Buttigieg described his work and personal history.  He said that he was a dedicated worker and would go to work even when he was in pain.  The work was hard and involved heavy lifting and shovelling.  Mr Buttigieg said that he thought he should be paid DSP as he cannot work even though he would like to.  He described the pain that he endures.  He said that he cannot sleep comfortably.  He can no longer do tasks such as gardening.   He cannot walk long distances.  He has obvious arthritis in his right dominant hand.   He said that his condition has deteriorated further over the past year.  Mr Buttigieg referred to his doctor’s reports and the report of a rehabilitation consultant who indicated that he is not fit for work or retraining.  Mrs Buttigieg confirmed the difficulties her husband is experiencing. 

6.       The application for DSP was accompanied by a treating doctor’s report from Dr Victor E Sammut dated 1 September 2004 (T6).   Mr Buttigieg has been his patient since February 1994.  Dr Sammut stated that Mr Buttigieg suffered from low back and sciatic pain for which he took medication.  He stated that the impact on Mr Buttigieg is that he is unable to bend, twist or push or lift heavy objects.  Dr Sammut stated that he expected the condition to fluctuate over the following two years and to affect his patient for at least that period.  Dr Sammut also stated that the applicant suffers from chronic obstructive airways disease

7.       Dr N Rose of Health Services Australia Ltd (HSA) assessed Mr Buttigieg at Centrelink’s request.  In a report dated 28 September 2004 (T8) Dr Rose allocated Mr Buttigieg 5 impairment points for his back pain, finding the condition permanent.  Dr Rose also allocated 5 impairment points for his respiratory condition.  Dr Rose allocated no points for neck pain, finding the Mr Buttigieg’s movements were within the normal range.  For pain in arms, no points were allocated with the condition being found to be a mild impairment.  Dr Rose concluded the report as follows:

The client has a total IR of 10.  He is fit for work that does not require heavy activity.  He should avoid heavy lifting and repetitive bending.  He could resume factory type work, process work or work as a sales assistant.

8.       On 2 December 2004, Joseph Sammut, Rehabilitation Consultant of CRS Australia provided a report to a Disability Officer at Centrelink (T10). Mr Sammut stated that Mr Buttigieg would not be accepted on a rehabilitation program.  He stated that he had spoken to Dr Sammut, Mr Buttigieg’s doctor, and recorded the doctor’s comments on his patient’s conditions.  Mr Sammut stated, amongst other things:

Dr Sammut indicated that return to work might be an unrealistic option for Michael. 

Michael stated that he has worked as a labourer all his life.  He left primary school at year five and can read and speak limited simple English.  Considering this and at fifty-nine years of age, it is unrealistic to consider retraining as an option for Michael.

In view of the above, I believe Michael will not benefit from a vocational rehabilitation program.  I am aware that Michael has been rejected Disability Support Pension recently.  I understand he intends to appeal the decision and I support his appeal…

9.       Mr Buttigieg sought review of the decision to refuse him DSP on 10 December 2004.  On 4 January 2005, an ARO affirmed the decision to refuse DSP.  On 27 January 2005, Mr Buttigieg sought further review through the SSAT.  He provided the SSAT with a report by Dr Gul M Keng, Orthopaedic Surgeon dated 15 February 2005 (T15), in which he stated, amongst other things:

I have been asked to do a Medical Report for Mr Buttigieg…He is unable to do any type of work as work aggravates his condition….

He has been seen by his doctor who has advised him to have investigations. He has had a CAT Scan of the lumbar spine which reveals that he suffers from a disc lesion in the lumbar spine which also causes him to suffer from pain in his right leg.  He has difficulty in walking as walking increases the pain.

During the course of his employment he suffered an injury to his back.  He was seen by his doctor and was given treatment but treatment has not helped to improve his condition.  He has difficulty in sleeping as pain wakes him up during his sleep and he aches all the time.  He can not move freely and his condition is gradually deteriorating.  He can not lift or bend as lifting and bending increases the intensity of the pain.

He suffers from migraine headache for which he is getting treatment but they have not improved…He takes a lot of medication which only helps him temporarily….

….

…X rays of the cervical spine, dated 15 July 2004, have been done and these reveal that he suffers from cervical spondylosis.  He has had a CAT Scan of the lumbar spine, dated 25 February 2003:  Conclusion: Moderate broad based disc bulge/disc protrusion at L4/5, with some narrowing of the invertebral foramina on both sides, also with some facet joint arthritis and borderline canal stenosis at L4/l5.  MRI may be helpful for further assessment.

I will arrange for him to have an MRI and will review the results.  He can not do any type of work and I feel that he will never be able to do any type of work.  At this stage my assessment is that he is unable to do any type of work and should be on an invalid pension…

10.     On 3 March 2005, the SSAT affirmed the decision to refuse DSP.  It found that while Mr Buttigieg’s back condition was long-standing, the condition could not be regarded as being fully diagnosed, treated and stabilised at that time as further investigations were still continuing.  The SSAT had a similar view in relation to other symptoms experienced by Mr Buttigieg, apart from the neck condition, which it decided warranted 5 impairment points.

11.     Mr Buttigieg lodged an application with this Tribunal on 6 April 2005.  Dr Sammut provided a further report dated 1 June 2005.  Dr Sammut assessed Mr Buttigieg as having physical impairments that should be assessed at 20 points or more under the DSS Impairment Tables.  Amongst other things, Dr Sammut stated:

….

Mr Michael Buttigieg (the patient) has lost physical function which he has not regained after several years of treatment.

1. Impairment:  He is unable to bend, unable to do any physical work because  of pain in his lower back; he has weakness in his wrists and elbows, numbness of the Right leg from sciatica, numbness of the Right arm from nerve trapping in the cervical spine, dizzy spells on moving his head, and pain the back of his neck from cervical spondylosis.  He has significant walking difficulties and has neurological signs of his sciatica.

2.  These are permanent conditions.  They have persisted for at least 2 years and are likely to persist for the rest of his life.

….

4.  He has been unable to work since December 2003 but had been struggling in pain for several years before (since 2000).

5.  The physical impairment has rendered the person not fit for training of any kind because he has too many physical complaints.  Apart from this he is now 59 years old and the likelihood of finding work at his age, compatible with his impairments, is minimal….

12.     A medical certificate issued by Dr Sammut on 19 September 2005 and provided to Centrelink indicates that Mr Buttigieg is unfit for work for 8 hours for the period from that date to 19 December 2005 and beyond.

CONSIDERATION OF THE ISSUES

13.     Section 94 of the Act sets out the criteria for a person to qualify for DSP. 

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;

…

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….

14. The Impairment Tables are set out in Schedule 1B of the Act. The Introduction to Schedule 1B states that:

…

4.  A rating is only to be assigned after a comprehensive history and examination.  For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised.  The first step is thus to establish a working diagnosis based on the best available evidence.  Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating.  In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.

5.  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 that it will persist for the foreseeable future.  This will be taken as lasting for more than two years.  A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.

…

15. When deciding whether a person qualifies for DSP, the decision maker also needs to take into account the provisions of clause 4(1) of Schedule 2 to the Social Security Administration Act 1999. Clause 4(1) allows a person who does not qualify for DSP at the date of application to do so within a further 13 weeks. Therefore, in this case, the Tribunal must consider whether Mr Buttigieg qualified for the DSP either on 6 September 2004 or at a date before 5 December 2004 (the relevant period).

16.     The Tribunal accepts that Mr Buttigieg suffers from a number of medical conditions now, as he did at the time he applied for DSP.  The Tribunal also accepts that his condition prevents him from working at present.  However, the doctors’ reports during the relevant period indicate that not all the conditions had been treated and stabilised at that time.  Dr Keng’s report of 15 February 2005, two months after the end of the relevant period, indicates that MRI may be helpful for further assessment.  Dr Sammut, in his report dated 1 September 2004, indicates that Mr Buttigieg’s low back pain and sciatica will persist for more than two years.  However, he also states that the effect on his patient’s ability to function is expected to fluctuate.  Dr Rose, in the report dated 28 September 2004, allocated 10 points under the Impairment Tables and gave the opinion that Mr Buttigieg was fit for work that does not require heavy activity. 

17.     Based on the documentary evidence and the oral evidence of Mr Buttigieg, the Tribunal finds that his back and sciatic condition had not been fully treated and stabilised during the relevant period.  Therefore, the Tribunal is unable to assign a rating for these conditions under the Impairment Tables during the relevant period.   

18. The Tribunal concurs with the analysis undertaken by the SSAT. Consequently, during the relevant period, Mr Buttigieg did not have an impairment rating of 20 points or more under the Impairment Tables. As a result, he does not satisfy s 94(1)(b) of the Act and cannot satisfy s 94(1). In the circumstances it is not necessary to consider whether Mr Buttigieg satisfies s 94(2). The decision to refuse the claim for DSP was correct.

19.     Mr Buttigieg’s health has deteriorated further in the past year.   However, the Tribunal is not empowered to consider whether Mr Buttigieg would now meet DSP requirements.  It is only able to consider whether he qualified during the relevant period.

DECISION

20.     The Tribunal affirms the decision under review.

I certify that the twenty (20) preceding paragraphs are a true copy of the reasons for the decision herein of

Regina Perton, Member

(sgd)       Catherine Lake

Clerk

Date of Hearing:  1 December 2005

Date of Decision:  19 December 2005
Advocate for applicant:                 Self‑represented
Advocate for respondent:             Ms Kayren Paul, Centrelink