Georgiou and Secretary, Department of Family and Community Servic Es

[2003] AATA 854

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 854

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/304

GENERAL ADMINISTRATIVE  DIVISION		)
Re		CHRISTOFOROS GEORGIOU

Applicant

And SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES

Respondent

DECISION

Tribunal Ms SM Bullock, Senior Member

Date20 August 2003

PlaceSydney

Decision For the reasons given orally at the conclusion of the hearing, the Tribunal affirms the decision under review.

……………………….

Ms SM Bullock
  Senior Member

CATCHWORDS

SOCIAL SECURITY - Disability Support Pension  – Whether the Applicant’s Impairment is 20 Points or More Under the Impairment Tables 

Social Security Act 1991 (Cth) s 94, Schedule 1B

REASONS FOR DECISION

20 August 2003   Ms SM Bullock, Senior Member     

1.      At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally.

2.      The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

3.      The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal's decision.

I certify that this and the preceding page is a true copy of the decision and reasons for decision herein of Ms SM Bullock, Senior Member.

Signed:         

Associate

Date of Hearing  20 August 2003

Date of Decision  20 August 2003

Representative for Applicant      Self-represented

Representative for Respondent  Mr J Larcombe, Departmental Advocate

DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N2003/304
By  MS SM BULLOCK, Senior Member
GEORGIOU AND SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
SYDNEY, WEDNESDAY, 20 AUGUST 2003

1. This is an application for review to the Administrative Appeals Tribunal which I will refer to from now on as “the Tribunal”, by the Applicant, Mr Christoforos Georgiou, of a decision made by the Social Security Appeals Tribunal (“the SSAT”) on 22 January 2003. The SSAT decided that Mr Georgiou was not qualified to receive a Disability Support Pension, as he did not satisfy subsection 94(1)(b) of the Social Security Act 1991 (“the Act”). That subsection requires an applicant for Disability Support Pension to have an impairment rating of 20 points or more, contained within Schedule 1B of the Act.

2.      The SSAT assessed Mr Georgiou as having the following ratings: for his neck a rating of five points from Table 5.1 of the Impairment Tables to cover Mr Georgiou having a 25 per cent loss of range of normal movement; for his lower back a rating of ten points from Table 5.2 to cover a loss of 25 per cent range of movement.  For Mr Georgiou's right leg, the SSAT considered it appropriate to consider Table 4, which deals with the function of the lower limbs.  The SSAT assessed Mr Georgiou as having a nil rating from Table 4.  There was also a consideration of Table 3 for upper limb function, which also was found to be a nil rating by the SSAT.  The combined rating assessed by the SSAT was in fact 15 points, which is below the required 20 points.  Thus, the decision of the Authorised Review Officer of Centrelink and the original decision-maker was affirmed by that Tribunal. 

3. Mr Georgiou provided oral evidence to the Tribunal with the assistance of an interpreter in the Greek language. He was accompanied by his daughter. Mr Georgiou was self-represented at the hearing and the Respondent, the Secretary, Department of Family and Community Services, was represented by Mr J Larcombe, who is a Departmental Advocate. The Tribunal took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act1975.  Those documents are referred to as the “T Documents”..  There were Exhibits taken in, namely Exhibit A1, which was a CT report of Mr Georgiou's lower spine.  That report was dated 4 August 2003.  There was another Exhibit, Exhibit A2, which is a CT report of the cervical spine and also the thoracic spine, which was undertaken on 14 August 2003.  The Respondent had one Exhibit, Exhibit R1, which was the Respondent's Statement of Facts and Contentions, dated 31 July 2003.

4.      I am now going to go through the evidence and the submissions provided by Mr Georgiou.  Mr Georgiou, whose date of birth is 22 January 1954, came to Australia from Cyprus in December 1976.  In Cyprus, he was educated at a technical school to the equivalent of Year 11.  Mr Georgiou left school at age 19 years and worked for the Water Board for approximately one year before coming to Australia.  After school there was a period of military service, then there was the job at the Water Board.

5.      In Australia, Mr Georgiou, worked for approximately six years in a brake manufacturing factory.   He had a work injury in 1983 to his upper back.  He received lump sum compensation of approximately $50,000.00 and did not work for about six or seven years after that injury.  He then obtained what he described as light duties work, working with a friend as a painter.  He worked as a painter for approximately six years before again suffering a work injury, on this occasion to his lower back in about June 1996.  Mr Georgiou received, later, a lump sum compensation of approximately $100,000.00. 

6.      Mr Georgiou told the Tribunal that he had attended English lessons arranged by WorkCover.  He thought that he went twice a week over a four or five month period, but describes his English skills now as not very good.  Mr Georgiou has two children, the eldest a daughter, and the youngest child a son, who lives at home with himself and his wife.  Mr Georgiou described his health problems as problems with his neck, his lower back, his right leg, his left and right arms and elbow, and he also stated that in recent times he has cholesterol problems.

7.      In relation to his neck, Mr Georgiou stated he is in constant pain and that he takes the medication “Vioxx”, one tablet in the morning.  At night he takes pain-killers, one tablet which is called “Tramal”.  Mr Georgiou did not know the exact strength of that medication.  Mr Georgiou does not have any specialist treatment at this time, or physiotherapy, but has had that in the past.  About two months ago, Mr Georgiou consulted a new General Practitioner, or family doctor, whose name is Dr H Stivaktas.  Dr Stivaktas organised some CT scans of Mr Georgiou's cervical spine, his thoracic spine and his lumbar spine and those are the reports contained in Exhibits A1 and A2.  Dr Stivaktas has suggested to Mr Georgiou that he be referred to an Orthopaedic Surgeon and/or a Neurosurgeon.  Mr Georgiou stated that he does not want to do anything about those referrals at this point, as he is very concerned that he does not want to have surgery.  He wants to wait a while.  Mr Georgiou stated that if he undertakes any continuous activity which involves neck movement, he experiences pain greater than what is there at normal times.  Mr Georgiou tries to undertake activities slowly at his own pace.

8.      Mr Georgiou can undertake activities of daily living, such as bathing and dressing himself.  Mr Georgiou stated that he tries not to bother other people and that is why he will undertake activities as much as he possibly can by himself.  Mr Georgiou stated that he cannot lift heavy objects.  He cannot sit down or stand for long periods of time and this he estimated to be about 20 minutes.  He can put his own shoes and socks on by sitting down and then undertaking this activity slowly. 

9.      In relation to his lower back, Mr Georgiou stated that, again, he has continuous pain and the medication Vioxx and Tramal, which he takes for his neck, also assists his lower back problem.  Mr Georgiou stated that he cannot stand or walk for longer than 20 minutes.  He does try to walk every day, walking for 20 minutes, and then he will have a rest before returning home.  Mr Georgiou drives a car and the maximum time he is able to drive is between 40 and 45 minutes.  He stated that he drives every day, for example, to the shops or to his daughter's home.  Mr Georgiou also told the Tribunal that he can use a bus or a train if he proceeds slowly.  Mr Georgiou attended the Tribunal's Offices in Sydney by travelling from Lakemba to St James station by train, a journey which he estimated took about 30 minutes.  Mr Georgiou is able to undertake such train journeys because he is able to stand up to move around and then he can sit down. 

10.     Mr Georgiou explained that sleeping, for him, is a major problem.  He wakes frequently at night with pain, gets up, moves around and then tries to sleep again.  He does not have continuous sleep.  Mr Georgiou stated that if he stands for longer than about 20 minutes, his back will give way.  Mr Georgiou used to have physiotherapy for his back and thought that he may have last had such treatment in about the Year 2000.  He certainly has had no physiotherapy or specialist attention in relation to his back since he claimed the Disability Support Pension in August 2002. 

11.     Mr Georgiou described suffering from right leg pain, which he initially believed to have emanated, or have been referred from his back condition, but in recent times, Mr Georgiou considers that he has what seems to be a different problem from his right knee downwards.  He believes that this problem should be rated separately to the low back condition. 

12.     Mr Georgiou is right-handed.  He stated that he has problems with his left and right elbows, which has been referred to by various doctors as epicondylitis.  Mr Georgiou has had three injections into his left elbow and four into his right elbow approximately one and a half years ago.  He believes that he cannot have any more injections to those particular sites.  Furthermore, Mr Georgiou has suffered from carpal tunnel syndrome and had a decompression operation on 4 September 1998.  The numbness that was there prior to that decompression surgery has now gone but at night on occasions Mr Georgiou would experience some numbness in his left arm.  Mr Georgiou rubs “Voltaren” cream in his elbows and arms approximately once or twice a week.  Mr Georgiou stated that he cannot undertake continuous or repetitive movements of his hands.  He is able to undertake such tasks, however, as fixing a washer in a tap, undertaking very light touch up painting, weeding the lawn from time to time if he is sitting down and also mowing the lawn.

13.     Mr Georgiou stated that he estimated three months ago he had four visits of physiotherapy, I believe for his left arm, at Bankstown Hospital.  Mr Georgiou stated that he has a cholesterol problem but his doctor has suggested to him that that be controlled at this stage by diet.  Mr Georgiou spends his days undertaking such activities as watching television, reading the Greek newspaper, going to the shops, going for a walk or visiting his daughter. 

14.     Mr Georgiou stated that he may be able to work in a light duties position if there was an employer who would let him work for about 20 minutes and then allow him to walk around or move around for one hour before returning to his duties.  Mr Georgiou did not think that such an employer existed.  Mr Georgiou told the Tribunal that he would be prepared to see a Disability Officer from Centrelink to assess whether or not there might be some assistance provided to him through rehabilitation or retraining.  This, it seems to the Tribunal, has neither been suggested nor certainly acted upon at this stage. 

15.     Currently, Mr Georgiou receives a Newstart Allowance.  Mr Georgiou told the Tribunal that since he applied for the Disability Support Pension in August 2002 his conditions, all of those mentioned, have steadily or gradually worsened.  Mr Georgiou was referred to a report made by a Medical Adviser from Health Services Australia, whose name is Dr Chew.  At T36, page 163, of the T Documents Dr Chew had noted that: “He complains of constant pain even when he was seated during the interview, though he appeared comfortable and did not outwardly express the pain until the examination part of the interview.”  Dr Chew further noted that Mr Georgiou moved his neck freely throughout the interview turning to his right to show his X-Rays or to his left in talking to the interpreter, but on formal examination evidenced severely restricted neck movements, which Dr Chew stated would certainly be unsafe for driving.

16.     There were also inconsistencies noted by Dr Chew in relation to the lumbar examination where there was, in the informal interview, no trouble with bending forward or any difficulty while seating, yet on the examination couch there was disability exhibited by Mr Georgiou.  Mr Georgiou answered those comments by Dr Chew by stating that if he was talking to someone he would turn his whole body, not just his neck.  In relation to Dr Chew's comments about the restriction to his back, Mr Georgiou told the Tribunal that he is able to undertake the putting on of his shoes and socks, but he has to do this very slowly.

17.     Mr Georgiou asked the Tribunal to consider the opinions of Dr M F Guirgis who is an Orthopaedic Surgeon, who reported on 19 November 1984 that Mr Georgiou had a 35 per cent loss of the dorsal spine.  That report is found at T4, page 15.  Another doctor referred to by Mr Georgiou was Dr D G Milder, who is a Consultant Neurologist.  Dr Milder reported on 15 September 2000 that Mr Georgiou has a permanent restriction of the lower back of   35 per cent and suffers a permanent loss of efficient use of the right lower limb at or above the knee at a rating of 15 per cent.  That report is found at T15, page 49.  The CT scan reports provided by Mr Georgiou at hearing dated 4 and 14 August 2003 indicate severe degenerative disc changes of the lumbar spine since the last scan.  In relation to the CT of the cervical spine there is marked spondylotic lipping of the anterior vertebral body end plate surfaces of the C5 and C6 vertebral bodies.

18.     The Tribunal also noted evidence from Dr J Parissis, who was Mr Georgiou's treating family doctor.  Dr Parissis provided a number of reports, but most recently on 21 October 2002 he noted that Mr Georgiou has a long history of lower back disc prolapse and right lower limb sciatica.  He has not been able to work for six years since a work accident.  Dr Parissis noted that Mr Georgiou has degenerative discs to his cervical spine, bilateral epicondylitis of the elbows, stiff, painful interphalangeal joints of both hands, and has had carpal tunnel syndrome of the left hand.  That is found at T34, page 147. 

19.     There have been reports provided by Medical Advisers from Health Services Australia.  Dr W Ma reported on 23 August 2002, that Mr Georgiou has a 15 per cent impairment rating.  That is found at T28, page 138.  The second Medical Adviser from Health Services Australia, Dr Chew advised on 15 November 2002, that the correct impairment for all of Mr Georgiou’s conditions is 15 per cent.  That is found at T36, pages 163 and 164.

20.     Mr Larcombe, for the Respondent, referred the Tribunal to the legislative basis for which Disability Support Pension is granted.  The thrust of Mr Larcombe's submissions are contained in the Respondent's Statement of Facts and Contentions, which is Exhibit R1.  I will not go through those now as we have those on record.  At the hearing, Mr Larcombe submitted that the correct rating for Mr Georgiou's impairments are the ratings that have been reached by the Medical Advisers, Dr Chew and Dr Ma.  Mr Larcombe submitted that it is not appropriate to rate the right limb, lower limb, problem that Mr Georgiou complains of under a separate table, that is Table 4.  Mr Larcombe noted that the correct Table is Table 5.2 which takes into account not only the lower back problem but also the referred pain that is described by Mr Georgiou. 

21. Mr Larcombe described two possibilities. First, if the right leg problem was rated separately, then that would result in there being a double rating under Table 5.2 and also Table 4 for the lower back and lower limb. The other scenario as understood by the Tribunal is that if the rating under Table 5.2 was reduced to take out the issue of referred pain, then rating referred pain under Table 4 would not produce any improved position for Mr Georgiou in terms of his overall rating, or combined rating. It is Mr Larcombe's submission also that while Mr Georgiou does not meet the 20 point requirement, that is the requirement of subsection 94(1)(b) of the Act, it is a reasonable assumption, given the evidence, that Mr Georgiou could in fact undertake light duties work for 30 hours per week.

22.     I now turn to my findings, or the decision that I have made.  I found Mr Georgiou to be frank and honest in his evidence to the Tribunal.  I have reached my decision taking into account the oral and the documentary evidence, the submissions and the legislation.  I have to make my decision based at the time of claim and for three months after that time. I am satisfied that the health conditions that Mr Georgiou suffers from are his neck problem, his lower back problem, his pain from down his right leg, his upper limb problem which includes epicondylitis and the previous carpal tunnel syndrome and also the cholesterol, although the cholesterol is not rated as it has not been claimed.  I note Mr Georgiou's submissions that two doctors have given him a rating of 35 per cent.  The difficulty in relying on those ratings is that I am not sure, from the reports provided to me, how those ratings were arrived at, where the percentages came from, and indeed it is not clear to me that the Tables that I am required to consider were considered by those doctors. 

23.     For the Tribunal's rating, I will deal firstly with the neck condition.  Table 5.1 of the Impairment Tables deals with the cervical spine.  It is my finding, based on all of the evidence to me, that there is a loss of a quarter of the normal range of movement of the neck and that this equates, under Table 5.1, to a five point rating.  In relation to the lower back problem the appropriate table, in my view, is Table 5.2 which covers the thoraco-lumbar-sacral spine.  From the evidence available to me Mr Georgiou has a loss of one quarter of the normal range of movement.  He has back pain and he has referred pain down his right leg.  This interferes with many of his physical activities.  It limits his standing or walking to about 20 minutes and limits his driving to about 40 or 45 minutes. 

24.     It appears to me that Mr Georgiou, in referring to his right leg problem, noted that initially he considered this related to referred pain from his lower back.  It seems however, that in recent times from his description to the Tribunal, that he considers his below knee problem, on the right leg, to be separate to that referred pain problem.  It may wall be that there is, in fact, a separate below knee condition of the right leg.  Unfortunately for Mr Georgiou, there is nothing in the medical material which would suggest what that separate condition below the knee might be. I have gone through very carefully the medical reports that I have, to try and ascertain whether there has been a separate condition diagnosed for below the knee on the right leg. 

25. On my reading of the documentary evidence, all of the doctors are referring to the right leg problem as a referred pain from the lumbar spine. Because of that I am unable, at this stage, to rate any condition under Table 4 which deals with the lower limbs. Table 4, and I am reading from Schedule 1B of the Act, is used to assess the lower limb and not the spinal functions, and the explanatory notes refer spinal problems for consideration under Table 5. What I am saying to Mr Georgiou is that there may well be a separate lower knee, on the right limb, problem but there is nothing that is indicated in the medical reports which can tell me what that condition is, and what the diagnosis is. For a decision-maker, whether it is the Administrative Appeals Tribunal, or the Centrelink Officers, to assess or to rate the problem of the lower knee, it would require there to be a proper diagnosis and for the condition to be treated and/or stabilised. That is a requirement under the Act contained within Schedule 1B.

26. Thus, at this stage I can give a rating from Table 5.2 of 10 points, which covers the loss of the quarter range of movement and the referred pain, but I am not in a position because of the reasons I have outlined, to give a rating for what appears to be a problem from the lower knee on the right side. Continuing in terms of the rating, there are upper limb problems and those problems can be appropriately rated under Table 3. It is my view, given the evidence, that the appropriate rating, which I must impress relates to the time of the claim and those three months afterwards, is nil to indicate demonstrable evidence of loss of strength, mobility, coordination, dexterity and or sensation of the upper limb which causes mild interference with hand function or manual handling. The total rating, or the combined rating, of all of the conditions is therefore assessed to be 15 points. This unfortunately has not reached the requisite requirement of 20 points required by subsection 94(1)(b) of the Act.

27.     While I realise that Mr Georgiou will undoubtedly be disappointed by the decision there are two further matters which I wish to point out to him.  Firstly, it is apparent to me that Mr Georgiou's conditions have worsened since he submitted his application for a Disability Support Pension in August 2002.  I accept, as I had said at the beginning of my findings, that Mr Georgiou is a credible and honest witness.  I accept from the objective reports contained in Exhibits A1 and A2, that there is significant worsening in the areas of his cervical and lumbar spine.  I also accept that there may be a possibility, which has not yet been investigated, that there is some separate condition that is operating in terms of below his right knee.

28.     It will be my recommendation that Mr Georgiou submits a claim for Disability Support Pension at this point and that all of his conditions be assessed up to date, taking note of the objective radiological findings and also his complaint of this separate condition which operates below his right knee.  It would also be my recommendation that if Mr Georgiou was to submit a new claim, or a fresh claim, for Disability Support Pension that the assessment by Health Services Australia be undertaken by specialists who have expertise in the particular areas of which Mr Georgiou complains.

29.     The second matter that I wish to refer to is that whether or not Mr Georgiou submits a fresh claim for Disability Support Pension, it is my recommendation that Centrelink have Mr Georgiou referred to or assessed by one of Centrelink’s Disability Officers.  It may be that the Disability Officer is not called that any more, but the thrust of my recommendation relates to there being some assessment of Mr Georgiou in terms of possible rehabilitation or retraining.  It may well be that if Mr Georgiou did submit a fresh application for Disability Support Pension, if he was successful in that application then a referral to a Disability Officer would not be necessary, but that needs to be assessed at the time.  I would ask Mr Larcombe to give his best endeavours in assisting Mr Georgiou to be referred to the appropriate people within Centrelink to look at these issues that I have made recommendations about.  I will organise for a copy of the transcript of this decision to be provided both to Mr Georgiou and to Mr Larcombe so that it may, in some small measure, possibly assist in the future.

30. The final decision is that pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, which is the Act which governs this Tribunal, I will affirm the decision of the SSAT. That means I am agreeing with it, but with the background of the recommendations that I hope, Mr Georgiou, you will take away with you and Mr Larcombe as well.