Gacevski and Secretary, Department of Family and Community Services
[2004] AATA 850
•16 June 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 850
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2003/1816
GENERAL ADMINISTRATIVE DIVISION ) Re NIKOLA GACEVSKI Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Ms N Isenberg, Member Date16 August 2004
PlaceSydney
Decision The Tribunal affirms the decision under review.
[SGD] Ms N Isenberg
Member
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” – decision affirmed
LEGISLATION
Social Security Act 1991 s. 94(1) and Sch 1B
Social Security (Administration) Act 1999, Sch 2,cl 4
REASONS FOR DECISION
16 August 2004
Ms N Isenberg, Member
DECISION UNDER REVIEW
1. The decision under review before the Administrative Appeals Tribunal (“the Tribunal") was the decision of the Secretary, Department of Family and Community Services (”Centrelink”) dated 18 March 2003 (T14, p.47) as affirmed by the Authorised Review Officer (“ARO”) on 10 September 2003 (T47, p.123) and the Social Security Appeals Tribunal (“the SSAT") on 22 October 2003 (T2, p. 3), to reject Mr Gacevski’s claim for disability support pension (“DSP”).
BACKGROUND
2. Mr Gacevski was born on 17 May 1947. He was injured at work in 1997 when he sustained injuries to his neck and right shoulder. He continued to work on light duties until 2000 when he was terminated as medically unfit. He has not worked since then.
3. He applied for DSP on 13 March 2003. Centrelink rejected the claim on 18 March 2003 and the decision was reviewed and affirmed by an ARO on 10 September 2003. Mr Gacevski appealed to the SSAT and was unsuccessful when a decision was delivered on 22 October 2003. Mr Gacevski appealed to the Tribunal on 18 November 2003.
ISSUE BEFORE THE TRIBUNAL
4. The issues to be determined in relation to this matter are:
a)Does Mr Gacevski have a physical, intellectual or psychiatric impairment of 20 points or more under the Impairment Tables in Schedule 1B of the Social Security Act 1991 (“the Act”); and, if so,
b)Does Mr Gacevski have a continuing inability to work as a result of the impairment, because;
· The impairment of itself prevents him from doing any work for at least 30 hours per week at award wages within the next two years; and either
· The impairment of itself is sufficient to prevent him from undertaking educational or vocational training or on the job training during the next two years; or
· Such training is unlikely (because of the impairment) to enable him to do any work for at least 30 hours per week at award wages within the next two years.
5. There is no dispute that Mr Gacevski has impairments and so satisfies section 94(1)(a) of the Act.
CONSIDERATION PERIOD FOR ENTITLEMENT TO DSP
6. Schedule 2, clause 4 of the Social Security (Administration) Act1999 (“the SSA Act”) provides that the relevant time to consider a person’s entitlement is during the 13 weeks after the claim. Therefore, I had to consider if Mr Gacevski was entitled to the DSP by 20 June 2003.
APPEARANCES
7. A hearing was held on 5 July 2004 at which, Mr Gacevski was self–represented but appeared with the assistance of Mr Petrusev, an interpreter in the Macedonian language. Centrelink was represented by Ms Collis, an advocate from the Service Recovery Team at Centrelink.
CONSIDERATION OF THE EVIDENCE and FINDINGS
8. In addition to documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975 ("the T-documents"), further documents were tendered.
9. Mr Gacevski gave evidence and was cross-examined by Ms Collis. I also asked him questions.
10. In coming to the correct and preferable decision, I took into account all the evidence, submissions, case law and relevant legislation.
11. The first question in the two-tiered requirements of the Act is as follows:
Does Mr Gacevski have a physical, intellectual or psychiatric impairment of 20 points or more under the Impairment Tables in Schedule 1B of the Act?
12. In his Treating Doctor’s Report attached to Mr Gacevski’s claim form dated 13 March 2003, Dr Warhaftig confirmed diagnoses of cervical spondylosis and frozen right shoulder. (T17, p. 78)
13. On 14 March 2003, Mr Gacevski was examined by Health Services Australia (“HSA") doctor, Dr Au who allocated a total impairment of 20 points as follows (T12, p.44):
·5 points for neck pain
·10 points for right upper limb
·5 points for left upper limb
14. On 18 August 2003, Mr Gacevski was examined by Dr Wong, occupational physician, who thought Mr Gacevski ‘displayed significantly greater degree of restriction in range of movement that one would have anticipated’. (T41, p.115)
15. Mr Gacevski said that Dr Wong had not properly examined him, as he was too busy taking personal phone calls. He believed Dr Wong to have ‘done what the ARO had told him to do’.
16. Following Dr Wong’s examination, Dr Reilly, HSA observed in a report dated 27 August 2003 that Mr Gacevski had not mentioned left arm pain as a problem, although he was observed to have mild restriction in left arm movement. Dr Reilly assigned the following impairments, reducing the total to 15 points, (T42, p117):
Table 3 moderate interference in use of right arm, 10 points.
Table 5.1 three quarter range of movement in neck, 5 points.
17. Dr Reilly gave no rating in respect of the left shoulder.
18. I turn now to consider Mr Gacevski’s conditions.
Cervical Spine (Neck)
19. Mr Gacevski referred me to the report of his neurosurgeon, Dr Bentivoglio, dated 9 June 2000 who reported cervical spine pathology.
20. Mr Gacevski also referred me to the report of Dr Patrick, dated 17 July 2000 who reported that upon examination he found stiffness in Mr Gacevski’s cervical spine. (T8, p. 22)
21. Mr Gacevski told me that his neck, with his right shoulder, is his main problem. He finds it difficult to sleep because of his neck. He said an operation has been contemplated but it is ‘dangerous’. He has pain all the time. He only drives in an emergency or for short distances. Because he cannot turn his head he will not park in the carpark at the shops. He said he has ‘stopped driving’ on the advice of his doctor.
22. Both the treating and HSA doctors’ report a loss of a quarter range of movement in this area. This equates to a 5 point impairment rating on Table 5.1 of the Impairment Tables within Schedule 1B of the Act, which provides:
TABLE 5.1 Cervical spine
Rating Criteria
NIL Normal or nearly normal range of movement.
FIVE Loss of quarter of normal range of movement.
TEN Loss of half of normal range of movement and frequent/constant neck pain or loss of three quarters of normal range of movement with infrequent neck pain.
TWENTY Loss of three-quarters of normal range of movement and constant neck pain.
THIRTY Loss of almost all movement, or complete ankylosis in position of function.
FORTY Ankylosis in an unfavourable position, or unstable joint.
23. In relation to the doctors’ assessments, Mr Gacevski said that that was their opinion, and they are not the ones with the pain in the neck.
24. The medical evidence leads me to agree with the rating of 5 impairment points in relation to Mr Gacevski’s cervical spine.
Right Upper Limb/Shoulder
25. Mr Gacevski, in this regard also referred me to Dr Bentivoglio’s report dated 9 June 2000. The doctor reported mild right shoulder restriction. (T7, p.19)
26. Mr Gacevski also again referred me to the report of Dr Patrick, dated 17 July 2000. There he reported that, upon examination, he found significant restriction in the right shoulder, although x-rays and ultrasound found no abnormality apart from some mild degenerative change at the AC joint. (T8, pp. 19 -24)
27. On 22 July 1999 Dr Richards, rheumatologist, found right shoulder restriction. Upon examination by Doctors Warhaftig, Au, Ma and Wong it was observed that abduction of the right arm was restricted. It is also reported that Mr Gacevski is unable to lift, push or pull heavy objects. Mr Gacevski re-iterated his limitations in this regard at the hearing.
28. Mr Gacevski told me that he is unable to shave the left side of his face because he cannot adequately reach it with his right (dominant) hand. He said he relies on his sons who live at home, and are barbers, to do this for him. He said his wife must help him shower as he is unable to reach his back. However, he said he was able to dress himself, by just putting up with the pain. Although he said, his right middle and index finger are numb, he is able to do up buttons on his shirts. He said he is also able to do up his shoe laces, when he has to.
29. Mr Gacevski further stated that he walks to the shops to buy food, but he does not carry a heavy load home. If larger purchases are required he goes with his wife and they take one side of the shopping trolley each. He said he mows the lawn but is unable to do handyman jobs around the home because of pain.
30. Table 3 of Schedule 1B of the Act provides as follows:
TABLE 3. UPPER LIMB FUNCTION
All upper limb problems are assessed under the upper limb Table (Table 3). Each arm is assessed separately. Determination of upper limb impairments must be based on a demonstrable loss of function.
Rating CriteriaNIL Can use dominant limb effectively and/or
Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of upper limb which causes mild interference with hand function or manual handling.
FIVE Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of non-dominant upper limb which causes moderate interference with hand function or manual handling.
TEN Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of dominant upper limb which causes moderate interference with hand function or manual handling.
FIFTEEN Demonstrable evidence of major loss of strength, mobility, coordination, dexterity and/or sensation of non-dominant upper limb which causes significant interference with hand function or manual handling.
TWENTY Demonstrable evidence of major loss of strength, mobility, coordination, dexterity and/or sensation of dominant upper limb which causes significant interference with hand function or manual handling or
Unable to use non-dominant upper limb at all.
THIRTY Unable to use dominant upper limb at all.
31. Centrelink conceded that as the right is the dominant limb, Mr Gacevski meets the criteria for a 10 point impairment rating for the right shoulder. I agree. However, I note that I considered a rating higher than that allocated, but was not satisfied that the impairment met the descriptor for impairment points.
Left Upper Limb/Shoulder
32. At the HSA examination on 14 March 2003, Mr Gacevski was given an impairment rating of 5 points from Table 3 of Schedule 1B of the Act for his left shoulder pain.
33. This condition had not been mentioned in Dr Warhaftig’s Treating Doctor Report dated 13 March 2003 or in any of the earlier medical reports associated with Mr Gacevski’s compensation claim for his musculoskeletal condition. Dr Patrick, for example, reported on 17 July 2000 that upon examination he found reasonably full movement in Mr Gacevski’s left shoulder. (T8, pp. 20-24)
34. After assessment by the occupational physician Dr Wong in August 2003, where the left shoulder flexion was to 150 degrees and extension to 40 degrees, which is within normal range, HSA withdrew the rating for the left shoulder.
35. Mr Gacevski said he was advised to obtain some additional evidence from his treating doctor. In a new report dated 12 February 2004, Dr Warhaftig stated that Mr Gacevski first complained of left shoulder pain in December 2002. However, he gave no diagnosis or the underlying cause of the condition. Dr Warhaftig wrote:
”Mr Nikola Gacevski is suffering from 2 partial tears of L supra spinatus tendon limiting L shoulder and arm movements considerably. Condition started on 19.12.02. The condition is permanent. Patient only on analgesic tablets.” (Exhibit R1, Attachment C)
36. Mr Gacevski told me that he had complained to Dr Warhaftig of pain in his left shoulder, which he believed was a result of using his left arm for everything because of the limitations in using his right arm. He said he was referred to Dr Harry Patapanian in Bankstown earlier this year, and he had been sent for an ultra sound about 3 months ago. It was then that the ‘tears’ were discovered.
37. Mr Gacevski did not understand how the condition could be rated in the first instance, and then not rated. As I said above, and as I pointed out to Mr Gacevski at the outset of the hearing, the relevant period I must consider is that from the date of lodgement of his claim and in the following 13 weeks, that is from 13 March 2003 to 20 June 2003. While he had attended Dr Warhaftig in December 2002 complaining of left shoulder pain, his condition, during the relevant period had not been “investigated, diagnosed, treated and stabilised”, as required by schedule 1B of the Act before a rating can be assigned for a condition. It was only in the last few months that the diagnosis of the tears has been made following an ultrasound. Therefore in respect of Mr Gacevski’s left shoulder condition no rating is made.
38. Adding together the rating of 5 and 10 in relation to Mr Gacevski’s neck and right shoulder condition, his total impairment is 15 points. I therefore find that Mr Gacevski fails to meet the first tier of the criteria in section 94 of the Act namely, a minimum impairment of 20 points.
39. Having come to that view it was unnecessary for me to consider if Mr Gacevski had a continuing inability to work in accordance with the Act. For this reason it is also unnecessary to reproduce the evidence so far as it relates to Mr Gacevski’s work history and skills and interest in work.
DECISION
The Administrative Appeals Tribunal affirms the decision under review.
I certify that the preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Member
Signed:
AssociateDate of Decision 16 August 2004
Advocate for the Respondent Ms Cheryl Collis
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