Chronis and Secretary, Department of Family and Community Services

[2004] AATA 1187

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1187

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2004/451

GENERAL ADMINISTRATIVE  DIVISION

Re:         EMMANUEL CHRONIS

Applicant

And:       SECRETARY,

DEPARTMENT OF FAMILY AND

COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       G.D. Friedman, Member

Date:             10 November 2004

Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) G.D. Friedman

Member

SOCIAL SECURITY - disability support pension - lower back pain - duodenal ulcer - whether 20 impairment points - continuing inability to work

Social Security Act 1991 ss 94(1), 94(2), 94(3), 95(5), Schedule 1B

REASONS FOR DECISION

10 November 2004  G.D. Friedman, Member

1.      This is an application by Emmanuel Chronis (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 10 March 2004.  The SSAT affirmed a decision of an authorised review officer of Centrelink dated 2 April 2003 to refuse an application for disability support pension (DSP) because the applicant did not have an impairment rating of at least 20 points under the Tables for the Assessment of Work‑Related Impairment for Disability Support (the Impairment Tables) in Schedule 1B of the Social Security Act 1991 (the Act).

2.      At the hearing on 4 November 2004, the applicant represented himself and Mr S. Meehan, a Centrelink advocate, represented the Secretary to the Department of Family and Community Services (the respondent).

3. The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1‑T32), together with four exhibits (Exhibit A1 to A4) lodged by the applicant and one exhibit (Exhibit R1) lodged by the respondent.

BACKGROUND

4.      The applicant was born on 7 July 1962.  On 24 January 2003 he lodged a claim for disability support pension (DSP) due to lower back pain and a duodenal ulcer.  He was medically assessed on 26 February 2003 and on 27 February 2003, Centrelink refused the claim because his impairment rating was less than 20 points under the impairment tables.  On 4 March 2003 the applicant provided a further report from his treating doctor.  On 2 April 2003 an authorised review officer affirmed the decision.

5.      On 2 January 2004 the applicant sought review of the Centrelink decision by the SSAT.  Following the SSAT decision to affirm the decision, the applicant lodged an application with the Tribunal on 15 April 2004 for review of the SSAT decision.

6.      The issue before the Tribunal is whether the applicant’s medical condition amounts to an impairment rating of at least 20 points under the Impairment Tables and whether he has a continuing inability to work.

EVIDENCE

7.      The applicant gave oral evidence that he grew up in Australia and is an Australian citizen.  He said that he left Australia in 1978 and after working in Greece and other countries he returned in 1997.  He then found employment as a courier.  In 2000 he started a small business delivering magazines to newsagents.  At the end of that year he began to experience back pain, which caused him to cease work in 2002.  He said that he tried house painting but was unable to continue because of the pain.  He told the Tribunal that, in addition to his back pain, which restricts his ability to drive a vehicle and sit for lengthy periods, he has headaches and stomach pain caused by a duodenal ulcer.  He stated that he has tried a number of treatment options including physiotherapy, hydrotherapy and medication, but without success. He also said that he was forced to sell his home and his truck.

8.      The applicant stated that he has been helping his wife in her work as a cleaner for about one hour each day, and is doing all he can to manage his conditions.  He stated that he and his wife are attempting to start their own cleaning business and he hopes to work for some of the time to make the business viable, although he emphasised that he would only be able to perform the physical tasks for a limited period each day because of his medical conditions.  The applicant told the Tribunal that he has been hospitalised several times because of his ulcer condition, which he said he could manage, but for the combined effects of the other conditions.

9.      In relation to his headaches, the applicant told the Tribunal that they may be connected to his back pain, but that doctors are not sure.  He stated that he would prefer to work full-time, but that is impossible.  Under cross-examination he agreed that his medical conditions have not changed to any significant degree since 2000.    

10.     In a report dated 24 January 2003 (T10) Dr H. Winfield, the applicant’s treating doctor, stated that the applicant’s lower back injury was a medical condition which has a significant impact on his ability to function and this impact will persist for 3 to 24 months.  In relation to the duodenal ulcer, Dr Winfield said that the impact upon the applicant’s ability to function would persist for more than 24 months, and that within the next 2 years the effect of the condition on the applicant‘s ability to function is expected to fluctuate.

11.     In a report dated 26 February 2003 (T12) Mr G. Jordan of Advanced Personnel Management assessed the applicant’s lower back injury as a temporary condition that prevents few everyday activities.  He assessed the duodenal ulcer as a permanent condition with an impairment rating of 10 points under Table 11.1 (Gastrointestinal: stomach, duodenum, liver and biliary tract) of the Impairment Tables.

12.     In a further report dated 4 March 2003 (T15) Dr Winfield stated that the impact of the low back injury would affect the applicant’s ability to function for more than 24 months, and reiterated that the effect of the condition on his ability to function was uncertain.

13.     In an MRI report dated 17 December 2003 (T23) Dr G. Boulogianni, radiologist in Thessaloniki, Greece, noted a disk bulge in the L3-L4 intervertebral space, which slightly compresses the thecal sac and the left L4 nerve root inside the ipsilateral nerve foramen.

14.     In a report dated 9 March 2004 (T30) Dr J. Hilal of Health Services Australia assessed the back pain as having an impairment rating of 10 points under Table 5.2.  He stated:

He also has a history of gastric ulcer, but this condition has only minimal impact on his work ability. 

Dr Hilal assessed the applicant as fit for light full-time work that does not involve lifting or carrying of heavy objects.

15.     In a report dated 1 June 2004 (Exhibit A1) Dr S. Siapantas of Ultra Health Care, Cheltenham, stated that the applicant has attended the clinic since April 2004.  He stated:

Currently Mr Chronis is suffering from severe lower back injury that is causing complete incapacity from work.  He also suffers from recurrent symptoms of gastric ulceration which interferes with management of his back injury in that he is unable to take appropriate medication for pain relief.  Due to this fact his incapacity is considerable and permanent.

It is my opinion that the findings of Gastric ulceration and chronic lower back injury should be combined in his assessment as these are definitely permanent and unlikely to resolve spontaneously in the foreseeable future.

16.     In a further report dated 3 July 2004 (Exhibit A2) Dr Siapantas assessed the lumbar spine condition as amounting to an impairment rating of 10 points under Table 5.2 (Thoraco-lumbar sacral spine); the duodenal ulcer amounting to an impairment rating of 10 points under Table 11.1 and intermittent attack-severity amounting to an impairment rating of 10 points under Table 21.1 (Intermittent attack-severity), on the basis that it was equal to  level three (loss of efficiency is discernible in many everyday activities).

17.     In a report dated 15 July 2004 (Exhibit R1) Dr T. Paulson of Health Services Australia stated that he had reviewed the applicant’s file.  In respect of the lower back condition, Dr Paulson stated that the injury is temporary as defined in the legislation, even though it has been present since 2001, because there has been limited conservative treatment and the applicant has not consulted medical specialists.  He concluded that the applicant’s back complaint would not preclude light semi-sedentary work, provided he can sit, stand and move about every 30‑90 minutes as required.  In respect of the duodenal ulcer, Dr Paulson concluded that the condition is temporary because there has been no definitive investigation for more than 14 years, and newer treatment options are likely to be more effective than the prescribed medication.

18.     Dr Paulson referred to nasal polyps and noted that these cause local symptoms only.  Dr Paulson described the headaches as a symptom rather than a condition.  He concluded that the applicant’s medical conditions are not permanent, fully investigated or stabilised, and therefore no impairment rating could be given.  He said that the applicant is currently fit for light full-time work.

19.     In a report dated 9 August 2004 (Exhibit A3) Dr R. Iansek, Professor of Geriatric Neurology, stated that he examined the applicant in relation to muscle construction headache and chronic muscle pain.  Dr Iansek concluded that the headache and muscle pain will be difficult to eradicate.  He recommended that the applicant attend a multi-disciplinary program for management of the complaints.

20.     In a report dated 9 August 2004 (Exhibit A4) Mr M. Scott of Southern Radiology stated that he had reviewed the MRI scans and he agreed that the examinations show a small left foraminal L3/4 disc protrusion with some disc bulging.

CONSIDERATION OF THE ISSUES

21.     Section 94 of the Act provides:

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;

…

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.

…

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)       …

"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.

Schedule 1B of the Act provides:

. . .

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. …

22.     The applicant submitted that the Tribunal should disregard Dr Paulson’s evidence because the report was prepared outside the 13 week period after the lodgement of the claim for DSP.  He said that several doctors and the authorised review officer from Centrelink assessed his conditions as permanent.  

23. Mr Meehan submitted that at the date of the claim for DSP, or within 13 weeks of that date (the relevant period), the applicant did not have an impairment of 20 points or more under the Impairment Tables. This was because, during the relevant period, the applicant’s conditions were not permanent and had not been fully documented, diagnosed, investigated, treated and stabilised, and as a result no impairment rating could be given. Therefore, the applicant did not satisfy s 94(1)(b) of the Act. He also submitted that the applicant did not have a continuing inability to work (s 94(1)(c) of the Act).

24.     In reaching its decision the Tribunal takes into account the oral and written evidence and submissions made at the hearing. 

25.     Taking account of the concession by the applicant that his medical conditions have not changed to any degree since 2000, the Tribunal does not accept his submission that Dr Paulson’s evidence should be disregarded.  The Tribunal notes that reports by Dr Siapantas, Dr Iansek and Mr Scott were also prepared more than one year after the applicant’s claim for DSP was lodged.

26.     Dr Hilal assessed the applicant’s back condition at 10 impairment points on the basis that the condition was permanent and would not improve.  Dr Winfield noted that the back condition would affect the applicant for more than 20 months.  Dr Siapantas referred to the applicant’s complete and permanent incapacity to work as a result of his back injury.  On balance, and after hearing from the applicant and reviewing the MRI results, the Tribunal prefers this evidence to Dr Paulson’s conclusion, that the applicant’s lower back condition is not fully investigated, treated or stabilised.  For these reasons the Tribunal assigns 10 impairment points for the back condition.

27.     The Tribunal notes that Mr Jordan and Dr Siapantas assigned 10 impairment points for the duodenal ulcer, with Dr Siapantas stating that the gastric ulceration interferes with the management of the applicant’s back injury.  The Tribunal also notes Dr Winfield’s evidence that the effect of the ulcer on the applicant’s ability to function within the next 2 years is expected to fluctuate.  Dr Hilal concluded that the ulcer condition had minimal impact on the applicant’s work ability.

28.     The Tribunal takes into account the symptoms described by the applicant and notes that the condition has largely been managed by medication (Zantac) over a number of years.  On balance, the Tribunal agrees with Dr Paulson’s conclusion.  The Tribunal finds that, during the relevant period, the condition had not been a fully documented and diagnosed condition which had been investigated, treated and stabilised.  Therefore, no impairment rating may be assigned to the duodenal ulcer.  There is no evidence that the headaches or nasal polyps attract an impairment rating.

29. Consequently, during the relevant period the applicant did not have an impairment rating of 20 points or more under the Impairment Tables. As a result, the applicant does not satisfy s 94(1)(b) of the Act, and cannot satisfy s 94(1). Therefore, the Tribunal does not need to deal with the issue of whether the applicant had a continuing inability to work under s 94(1)(c) of the Act

DECISION

30.     The Tribunal affirms the decision under review.

I certify that the thirty [30] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Member

(sgd)       Catherine Thomas

Clerk

Date of hearing:  4 November 2004

Date of decision:  10 November 2004
Advocate for applicant:                Self-represented
Advocate for respondent:            Mr S. Meehan, Centrelink