Jonovski and Secretary, Department of Family and Community Servic Es

[2003] AATA 156

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 156

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2002/559

GENERAL ADMINISTRATIVE  DIVISION		)
Re		NEDLKO JONOVSKI

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr S Webb, Member

Date17 February 2003

PlaceWollongong

Decision The Tribunal affirms the decision under review. 

…………………….
  Mr S Webb 

Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether Applicant qualifies for disability support pension – whether Applicant’s medical conditions attract an impairment rating of 20 points or more on the date of claim or within 13 weeks thereafter – continuing inability to work

LEGISLATION

Social Security Act 1991 (Cth) – section 94; Schedule 1B

Social Security (Administration) Act 1999 (Cth) – sections 3,4, 42, Schedule 2

AUTHORITIES

Re Ryzak and Secretary, Department of Family and Community Services [2000] AATA 631

REASONS FOR DECISION

17 February 2003 Mr S Webb, Member         

1.      This is an application by Mr Nedlko Jonovski (“the Applicant”) for review of a decision made by the Social Security Appeals Tribunal (“the SSAT”) on 28 March 2002 (Exhibit T2) to affirm a decision of an authorised review officer (“ARO”) dated 22 January 2002 (Exhibit T20).  The ARO decided to affirm a decision of a delegate of the Secretary, Department of Family and Community Services (“the Respondent”) dated 22 November 2001 to reject the Applicant’s claims for disability support pension (Exhibit T17).

BACKGROUND

2.      The following information is provided by way of background and is not disputed.

3.      The Applicant was born on 8 September 1939 and was employed as a slip line operator by BHP Steel between 1974 and 1988.  He injured his back and knees during the course of his employment in 1988, as a consequence of which he was placed on light duties, working as a cleaner.  The Applicant ceased work on 20 December 2000, whereupon, after a period of leave, his employment with BHP Steel ceased on 24 April 2001.

4.      The Applicant lodged a claim for disability support pension (“DSP”) on 14 September 2001 (Exhibit T5).  His claim was rejected on 22 November 2001 on the grounds that he was fit for full time work.  The Applicant pursued his right of appeal, seeking review of the decision by an ARO, the SSAT and subsequently this Tribunal.

LEGISLATION

5.      Qualification for DSP is to be determined in accordance with section 94 of the Social Security Act 1999 (“the Act”), which relevantly provides:

“Section 94 Qualification for disability support pension

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.

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.(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.”

6. The start day for a claim for disability support pension is to be worked out in accordance with section 42 of the Social Security (Administration) Act 1999 (“the SSA Act”), which relevantly provides:

“Section 42
Start day

For the purposes of the social security law, a person's start day in relation to a social security payment or a concession card is the day worked out in accordance with Schedule 2.”

Schedule 2 of the SSA Act relevantly provides:

“3 Start day—general rule

3.(1) If:

(a) a person makes a claim for a social security payment; and

(b) the person is qualified for the payment on the day on which the claim is made;

the person's start day in relation to the payment is the day on which the claim is made.

…

4 Start day – early claim

4.(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.

…”

ISSUES FOR CONSIDERATION

7.      The issues for determination by the Tribunal are:

(a)whether, on the date the application for DSP was lodged or within thirteen weeks thereafter, the Applicant had a physical, intellectual or psychiatric impairment pursuant to paragraph 94(1)(a) of the  Act and, if so

(b)whether, pursuant to paragraph 94(1)(b) of the Act, the impairment was of 20 points or more under the Impairment Tables at schedule 1B of the Act; and, if so

(c)whether, pursuant to paragraph 94(1)(c) of the Act, the Applicant had a continuing inability to work in accordance with subsection 94(2) of the Act.

EVIDENCE

8.      The Tribunal convened a hearing in this matter on 20 December 2002.  At the hearing, the Applicant represented himself and Ms Cheryl Collis, of Centrelink’s Advocacy and Administrative Law Team, represented the Respondent.  An interpreter assisted the Tribunal in the Macedonian language.

9.      The Tribunal had before it documents that were taken into evidence:

Exhibit	Description	Date
T1-T20	Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.
A1	Applicant’s statement of facts and contentions	21 July 2002
R1	Reports by Dr Twomey dated 27 January 1999, 17 November 1999 and 24 March 2000	27 January 1999 17 November 1999 24 March 2000
R2	BHP Work Capability form	7 January 1997
R3	Audiometric card and chart	22 May 2002
R4	Referral letter from Dr Boksic to Dr Ali	12 April 2002
R5	Report by Dr O’Halloran	30 April 2002
R6	Report by Dr Som Puri	7 May 2002
R7	Unsigned Health Services Australia assessment report by Dr Gow	26 July 2002
R8	Report by Dr Som Puri	18 July 2002
R9	Report by Dr Mills	23 July 2002
R10	Letter from Dr Boksic to Illawarra Legal Centre	1 August 2002
R11	Health Services Australia assessment report by Dr Wassenaar	8 August 2002
R12	Letter by Dr Ali	24 August 2002
R13	Report by Dr Wassenaar	9 September 2002
R14	Respondent’s statement of facts and contentions	30 October 2002

10.The Applicant gave sworn oral evidence at the hearing.

the applicant

11.     The Applicant informed the Tribunal that he had originally injured his back and his knees in 1988 in the course of his employment as a slip line operator, which required him to lift 43 kilogram “splices” up to five times each day.  He gave evidence that he collapsed while lifting “splices”, injuring his back and his knees.   He stated that he has experienced constant pain “like a belt” in his lower back, right side and stomach areas, and in both knees since these incidents.  The Applicant told the Tribunal his back “locks” and he gets “dizzy”..  The pain in his back and his knees, he claimed, prevented him from performing his duties, whereupon he was given light duties as a bathroom attendant, which he was able to complete only with great effort enduring the pain.  Ultimately, he said, he “gave up” because the pain and his symptoms were getting “worse and worse” to the point where he had problems bending, lifting and kneeling.

12.      The Applicant told the Tribunal he became depressed after ceasing work and sought medical treatment from Dr Boksic and, subsequently, Dr Ali.  He gave evidence that he has consulted Dr Ali four times and is scheduled for further consultations, the next being some time in February 2003.  The Applicant stated he has been prescribed anti-depressant medications and currently takes Largactil 10 milligrams each morning and Avanza 30 milligrams each evening.  He told the Tribunal he became depressed because of the pain and his medical problems, and because he lost his self esteem after ceasing work.  He gave evidence that there had been some “temporary minor improvement” in his depressive condition, but no substantial gain, and, he believed, his doctors were “still testing the medications” to try and stabilise his condition.

13.     The Applicant told the Tribunal he suffers from “acid stomach problems”, a “heart problem” and dizziness.  He recalled attending Dr Twomey on six occasions, and undergoing tests and consultations with medical specialists, without any resulting diagnosis or medication.  The Applicant stated he has a sharp pain in his left chest that is constant in one spot “like a pin”.  He stated he has collapsed five times and gave an example of visiting a park in Dapto, walking 10 to 20 metres, then feeling “like a drunk”, whereupon he washed his face and sought medical assistance from Dr Boksic, who found nothing wrong with him.  He gave evidence he first collapsed in 2001 in the hallway of his residence, as a consequence of which he called and was examined by a “radio doctor”, who found nothing wrong.

14.     The Applicant stated he wakes up with pain in his back and his knees at night and has difficulty getting up.  He gave evidence he can dress himself, but has to sit down to put on his socks and shoes, having to “find the best position”. The Applicant recalled being told to exercise by his doctor, who told him to try and walk.  He told the Tribunal he tries to exercise by stretching and is able to walk to the local shop in 15 to 20 minutes.  He stated the shop is approximately one and a half kilometres from his house and he is able to walk that distance on a level concrete footpath with no steps.  He stated he cannot walk to the shop every day and is concerned about losing his balance and falling. He gave evidence that he occasionally accompanies his wife shopping and “sometimes pushes the trolley”, but cannot lift the shopping bags.  He told the Tribunal he is able to drive his car to see his daughter in Carlton, which takes him one and a half hours, but is no longer able to go fishing, camping or to the beach with his grand children.  He stated he cannot lift his baby grand daughter.  The Applicant stated he has no hobbies and does not attend the local club, as he used to do, only visiting friends occasionally and having a very limited social life.  His wife, he claimed, is unwell, but he is unable to assist with gardening or cleaning chores around the house.

15.     The Applicant gave evidence that he has not considered alternative employment since ceasing employment with BHP Steel, stating that he would not find an easier or better job than his previous job as a bathroom attendant, for which he was paid “$50,000 to $60,000 per year”.  He stated that he had attempted to work over a ten day period, working “a couple of hours per day”, but the work took him “four or five hours” each day because of the pain.  He denied being able to work more than 30 hours per week and recalled being sent to “school” to undertake an English language course by Centrelink.  He claimed he could not sit for extended periods because of his back pain and had “given up”, questioning why, at his age, he should “go to school”.

medical evidence

dr p. twomey

16.     The Tribunal had before it reports by Dr Twomey (Exhibit R1) who examined the Applicant on referral by his treating general practitioner, Dr Boksic.  Dr Twomey reported on 17 November 1999 (Exhibit R1, p2):

“Mr Jonovski continues to have a lot of symptoms, but apart from minor abnormalities in the liver function and slight elevation of the ferritin we’ve not been able to find any abnormalities.”

dr m. o’halloran

17.     Dr O’Halloran examined the Applicant on several occasions during the period 1988 to 2000 and reported on 16 June 2000 (Exhibit T11, pp88-89):

“The previously noted knee condition was secondary to minor degenerative changes present over a period of time however this did not appear to incapacitate him with his work duties.

…

I feel that Mr Jonovski had low back discomfort which had actually improved over the years with his physiotherapy and exercise program.

…

I feel that Mr Jonovski’s major concerns and complaints are due to an aging process and to ongoing degenerative problems.

…

Prognosis at this stage is guarded although I feel Mr Jonovski would be better off retiring where he is less likely to aggravate or cause further injuries to his ongoing degenerative changes.”

dr s puri

18.     Dr Puri, orthopaedic surgeon, report on 26 February 2001 (Exhibit T12, pp90-91):

“He continues to suffer significant disability in his spine, right leg and right arm which restricts him a great deal during his daily work.  His condition has stabilised and is not liable to improve further and is liable to get worse with the passage of time.”

19.Dr Puri reported on 18 July 2002 (Exhibit R8):

“I confirm that he has 20% permanent loss of efficient use of his back due to a work injury and 10% permanent loss of efficient use of his right leg at and above the knee due to his back problem.  He also has a work injury affecting his right dominant arm causing 5% loss of efficient use of his right arm above the elbow.”

dr r wallace

20.     Dr Wallace, orthopaedic surgeon, reported on 27 February 2001 (Exhibit T13, p93):

“I believe his symptoms will persist despite further conservative treatment.  He may derive short-term symptomatic relief from ongoing intermittent course of physiotherapy, hydrotherapy, massage and medication….

He would be best suited to continue at his current light duties at work on a permanent basis with due consideration given to restrictions on his activities detailed above.”

dr e. wassenaar

21.     Dr Wassenaar assessed the Applicant for Health Services Australia and reported on 29 October 2001 (Exhibit T15, pp103-106) that the Applicant’s “thoraco-lumbar spine condition” was permanent, attracting an impairment rating of 10 points because of “loss of ½ of normal range”, his “depression” was permanent, attracting an impairment rating of Nil points because of “mild to moderate symptoms causing subjective distress”, his “reflux” was permanent, attracting an impairment rating of Nil points because there was “no functional impairment”, and his “hips/knees/little toes” pain was permanent, attracting an impairment rating of 10 points because of “moderate interference with walking”.  Dr Wassenaar reported (Exhibit T15 p113):

“The main condition affecting work is his back.  This prevents heavy work but I do not feel that it currently prevents 30 hours appropriate light work a week as he appears to have coped adequately with his previous duties as a bathroom attendant and cleaner.  There are significant non-medical barriers to work.”

22.     Dr Wassenaar subsequently assessed the Applicant on 8 August 2002 and reported (Exhibit R11, pp) that his “thoraco-lumbar spine condition” was permanent, attracting an impairment rating of 10 points because of “loss of ¼ of normal range; frequent pain”, his “anxiety/depression” was temporary because “not stabilised”, his deafness was permanent, attracting an impairment rating of Nil points because “Binaural hearing loss = 19.7%”, his “gastritis/oesophagitis” was permanent, attracting an impairment rating of Nil points because “mild symptoms despite optimal treatment”, his “foot “arthritis”/knee pain/ ankle swelling” were permanent, attracting an impairment rating of Nil points because “walks over 500m”. 

23.Dr Wassenaar reported on 9 September 2002 (Exhibit R13 pp1-2):

“In summary, the client is regarded as unfit for all work for 6 to 12 months because of depression.

I note Ms Perry’s comment re my assessment of the client’s depression as permanent in October 2001 and temporary in August 2002.  The implication appears to be that I have been inconsistent in my recommendations.  According to the Centrelink definitions of temporary and permanent, there is no inconsistency.

When he was seen in October 2001, I felt his main condition was back pain.  Upon his own admission he had pain associated with depression and anxiety.  The TDR stated that the client had fluctuating insomnia, concentration and anxiety.  This was untreated and I formed the impression that based upon his stated symptoms, that treatment was not indicated as his symptoms did not warrant this.  I did not regard this condition then as the main barrier to work.  His symptoms appeared mild and relatively stable hence this condition was designated as permanent.

However at his last presentation it was clear that his psychiatric condition had deteriorated.  He had only just commenced treatment (3 days previously) and had only just seen a psychiatrist for the 1^st time.  As the condition had not been stabilised on treatment it was thus now a temporary condition.  It could have been termed a permanent condition if his present state could reasonably be expected to stay the same or deteriorate further in the next two years regardless of treatment but it was not possible to determine this without a psychiatrist’s opinion in this case.”

dr i. ali

24.Dr Ali, psychiatrist, wrote in a letter dated 24 August 2002 (Exhibit R12):

“…This appears to be a major depression.  It started slowly [sic] few years ago and has been worse lately.

Due to symptoms of depression including depressed mood, tiredness, insomnia and poor concentration he is unable to work at present.

This disability is likely to last for a long time.  He needs to be on medication continuously.”

dr r. mills

25.     Dr Mills, Consultant Physician in Occupational Medicine, reported on 23 July 2002 (Exhibit R9, p5):

“IMPAIRMENT POINTS

Condition	Table Number	Impairment Points
Hearing	12	Nil
Knees	4	10
Back	5.2	5
Depression	6	10
Gastritis	11.1	Nil

…

Although Mr Jonovski does have a residual work capacity I would not consider him fit to work a minimum of 30 hours per week.  This restriction on his work hours is due to his symptoms of depression (including his low level of motivation and his frequently needing to rest during the daytime).”

dr z. boksic

26.     Dr Boksic, General Practitioner, completed a treating doctor’s report (“TDR”) dated 6 June 2001 in which he reported (Exhibit T6, pp 70-71) the Applicant’s “Depression”, “Gastro-oesophageal reflux” and back condition were “long term likely to persist for at least 2 years”.  In response to the formulaic question concerning the likelihood of the Applicant’s ability to return to any kind of work for more that 20 hours per week (Exhibit T6 p72), Dr Boksic selected “more than 2 years”.

CONSIDERATION OF THE ISSUES, SUBMISSIONS AND FINDINGS

27. The Applicant’s qualification for disability support pension may only be determined on the day on which the claim was lodged or within a period of thirteen weeks immediately thereafter (“the qualification period”) pursuant to sections 3 and 4 of Schedule B of the SSA Act; Re Ryzak and Secretary, Department of Family and Community Services [2000] AATA 631. The Applicant lodged a claim for disability support pension on 14 September 2001 (“the application day”). In this case, therefore, the qualification period will commence on 15 September 2001 and will end on 14 December 2001.

impairment

28.     The parties agree and the Tribunal finds that the Applicant’s claimed conditions, relating to hearing impairment, gastro-oesophageal reflux, thoraco-lumbar spine pain and bilateral knee pain, constitute a physical impairment and his depression constitutes a psychiatric impairment during the qualifying period.  The Tribunal finds, therefore, the Applicant satisfies the first qualifying requirement under paragraph 94(1)(a) of the Act.

impairment rating

29.     The second qualifying requirement set out in paragraph 94(1)(b) of the Act requires an impairment rating of 20 points or more under the Impairment Tables set out in Schedule 1B of the Act.  Paragraphs 4, 5 and 6 of the Introduction to the “Tables for Assessment of Impairment of Disability Support Pension” state:

“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.…

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.

6.  In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:

·  what treatment or rehabilitation has occurred;

·  whether treatment is still continuing or is planned in the near future;

·  whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years.

In this context, reasonable treatment is taken to be:

·  treatment that is feasible and accessible ie, available locally at a reasonable cost;

·  where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient.”

hearing loss

30.     There is no dispute between the parties that the Applicant’s hearing loss was permanent on the application day and the Tribunal so finds.  Dr Gow considered an audiogram performed by the Illawarra Health Service on 22 May 2002 (Exhibit R3) and reported the Applicant had a 19.7 per cent binaural hearing loss (Exhibit R7).  Dr Mills reported the Applicant’s hearing loss warranted Nil impairment points under Table 12 of Schedule 1B of the Act.  In the absence of other evidence, the Tribunal finds the Applicant had a binaural hearing loss of 19.7 per cent on 25 May 2002 and, on the balance of probabilities, a binaural hearing loss of an approximately equivalent percentage during the qualifying period. 

31.     This being the case, the Tribunal assigns an impairment rating of Nil points under Table 12 of Schedule 1B of the Act.

gastro-oesophageal reflux

32.     Dr Boksic and Dr Wassenaar reported in June and October 2001 respectively that the Applicant’s gastro-oesophageal reflux was likely to persist for more than two years and was, therefore, permanent for present purposes on the application day and the Tribunal so finds.  The medical evidence is that the symptoms were mild despite ongoing pharmacological treatment.  There is no evidence that the condition was not being optimally treated during the qualifying period or that the Applicant’s symptoms were other than mild during the qualifying period.  The Tribunal so finds.

33.     This being the case, the Tribunal assigns an impairment rating of Nil points under Table 12 of Schedule 1B of the Act.

thoraco-lumbar spine pain

34.     The preponderance of the medical evidence indicates that the Applicant’s thoraco-lumbar spine pain was a permanent condition on the application day and the Tribunal so finds.  Dr Wassenaar assigned an impairment rating of 10 points under Table 5 on 29 October 2001, which the Respondent accepted as correct despite the SSAT and Dr Mills assigning an impairment rating of five points under Table 5.  Dr Mills, however, did not quantify any restriction on the normal range of movement in the Applicant’s back in making this assessment on 27 July 2002.  Dr Wassenaar found the Applicant suffered one half the normal range of movement in the thoraco-lumbar spine on 29 October 2001, and subsequently a quarter of the normal range of movement on 8 August 2002.  The Tribunal accepts the Applicant’s evidence that he experiences almost constant back pain “like a belt” and has difficulties bending, sitting and lifting, whereby he experiences pain when driving for more than one hour, for example to visit his daughter.

35.     The Tribunal finds, on the application day, the Applicant suffered a loss of one quarter of the normal range of thoraco-lumbar spine movement with back pain and referred pain with many physical activities, as well as on standing for about 30 minutes and driving for about 60 minutes.  This being the case, the Tribunal assigns an impairment rating of 10 points under Table 5.2 of Schedule 1B of the Act.

knee pain

36.     On 26 February 2001 Dr Puri reported that the Applicant was suffering significant disability in his right leg as a consequence of his injury at work and considered the condition permanent, estimating a 10 per cent loss of efficient use of the right leg.  There is no evidence to suggest Dr Puri’s estimate was made in reference to the tables at Schedule 1B of the Act, of which Table 4 relates to the function of lower limbs.  Dr Wassenaar found the bilateral knee condition to be permanent in her assessment on 29 October 2001 and assigned an impairment rating of 10 points under Table 4.  This opinion was confirmed by Dr Mills on 23 July 2002 who also assigned 10 points.  Curiously, Dr Wassenaar subsequently assigned an impairment rating of Nil points on 8 August 2002.  Cheryl Collis, for the Respondent, submitted that Dr Wassenaar’s original assessment was incorrect, submitting “it appears that Dr Wassenaar did not question the Applicant as to his walking tolerances.” 

37.     The Applicant’s evidence was that he could walk to the local shop, a distance of approximately 1,500 metres, on a level concrete footpath, but not every day.  He told the Tribunal that he walked slowly and was concerned about losing his balance and falling.  The Applicant contended that he had told the SSAT and Dr Wassenaar the same thing, but observed that there had been some language difficulties.  The Applicant contended that previous interpreters did not speak the Macedonian language, but spoke similar languages such as Greek, whereby the possibility for misinterpretation or translation errors increased.

38.     The Tribunal finds the Applicant was able to walk a distance of 1,500 metres on a flat and level concrete surface, accomplishing this activity slowly and with some difficulty.  The Applicant gave evidence that he has difficulty walking on uneven terrain, bending, kneeling, squatting, sitting for long periods and climbing.  This evidence is supported by Dr Mills, who recommended restrictions in relation to squatting, kneeling, climbing, standing, walking, lifting more than five kilograms, bending, stooping, pushing and pulling (Exhibit R9, p5).  Table 4 provides the following ratings and criteria:

“TABLE 4. FUNCTION OF THE LOWER LIMBS

Table 4 is used to assess lower limb not spinal function (see Table 5). Assess both limbs together. Determination of lower limb impairments must be based on a demonstrable loss of functions.

Rating Criteria

NIL Walks without difficulty on a variety of different terrains and at varying speeds for distances of more than 500m.

TEN Demonstrable loss of strength, mobility, stability, balance, coordination and/or sensation such as to cause moderate interference with walking and one or more of the following: climbing, squatting, sitting or kneeling or

Pain or claudication restricts walking to 250-500m or less, at a slow to moderate pace (4km/h). Can walk further after resting.

TWENTY Demonstrable loss of strength, mobility, stability, balance, coordination and/or sensation such as to cause major interference with walking and one or more of the following: climbing, squatting, sitting or kneeling or

Pain or claudication restricts walking (4km/h) to 50-250m or less at a time. Can walk further after resting or

Unable to walk or stand but independently mobile using a self-propelled wheelchair.

THIRTY Pain or claudication restricts walking (4km/h) to 50m or less at a time. Can walk further after resting or restricted to walking in and around home and:

requires quad stick, crutches or similar walking aid, or

is unable to transfer without assistance.

FORTY Unable to walk or stand and mobile only in a motorised wheelchair or wheelchair with an attendant.”

39.     The Tribunal finds there is no evidence the Applicant could walk “without difficulty on a variety of terrains and at varying speeds for distances of more than 500m”.  The evidence is that he cannot, being limited to walking distances greater than 500 metres on flat even surfaces at a slow pace with some difficulty, and the Tribunal so finds.  In the absence of corroborating evidence, the Tribunal is not persuaded that Dr Wassenaar did not question the Applicant about his walking tolerances as alleged and finds no reason to discount her assessment of the Applicant’s knee impairment on 29 October 2001.  This being the case, the Tribunal finds the Applicant has a demonstrable loss of strength, mobility, stability, balance and coordination sufficient to cause a moderate interference with walking, climbing, kneeling, sitting and kneeling. 

40.     In relation to the Applicant’s claimed bilateral knee conditions, the Tribunal assigns an impairment rating of 10 points under Table 4 of Schedule 1B of the Act.

depression

41.     Ms Collis submitted that the Applicant’s depression was not stabilised on the application day or during the qualifying period.  The Tribunal agrees, accepting Dr Wassenaar’s explanation of the apparent conflict in her assessment of the condition being permanent on 29 October 2001 and temporary on 8 August 2002.  The evidence is that the condition worsened to the extent that Dr Boksic referred the Applicant for psychiatric treatment to Dr Ali and, in the Applicant’s evidence, the condition, even at the date of hearing, is not stabilised, Dr Ali having only recently placed the Applicant on his current anti-depressant medication.

42.     This being the case, the Tribunal finds the condition is temporary and it would be premature to assign an impairment rating.

43.     On this basis, the Tribunal finds that the Applicant has an impairment rating of more than 20 points under the Impairment Tables of Schedule 1B of the Act.  Thus, the Applicant’s claim satisfies the qualifying requirement of paragraph 94(1)(b) of the Act. 

continuing inability to work

44.     Having found that the Applicant has an impairment rating of 20 impairment points, it is necessary, therefore, to consider whether the Applicant has a continuing inability to work because of his impairments pursuant to paragraph 94(1)(c) of the Act. 

45.     Ms Collis submitted the Applicant has a residual capacity to work more than 30 hours per week performing light duties within his restrictions, contending he lacks motivation and has not tested alternative employment options.

46.     Considering all the evidence, the Tribunal is persuaded the Applicant has some physical capacity for work within restrictions and accepts Ms Collis’ submission that the Applicant lacks motivation and has not tested the employment market.  Dr Wassenaar found the Applicant was fit to return to work on 29 October 2001 and Dr Mills reported on 23 July 2002 (Exhibit R9, p5) that he was “permanently fit for selected duties”.  Dr Mills commented, however:

“Although Mr Jonovski does have a residual work capacity I would not consider him fit to work a minimum of 30 hours per week.  This restriction on his work hours is due to his symptoms of depression (including his low level of motivation and his frequently needing to rest during the daytime).”

This opinion was confirmed by Dr Ali, the Applicant’s treating psychiatrist, on 24 August 2002, who opined that the Applicant “is unable to work at present” because of the symptoms of his depression (Exhibit R2).  On 8 August 2002 Dr Wassenaar noted the Applicant’s depression was not stabilised and should be reviewed in three to six months.  Dr Wassenaar placed question marks in her responses to questions concerning the likelihood of the Applicant returning to work more than 20 hours per week and subsequently reported the Applicant “is regarded as unfit for all work for 6 to 12 months because of depression” (Exhibit R13, p1).  The Tribunal accepts Dr Wassenaar’s assessment and so finds.

47.     The relevant test is set out at paragraph 94(2)(a) of the Act, wherein it is necessary for the Applicant to establish that the impairment is of itself sufficient to prevent him doing any work within the next two years.  Dr Mills and Dr Wassenaar agree that the Applicant is currently prevented from work as a consequence of his temporary depression, having a residual ability to work within physical restrictions, and the Tribunal so finds.  This being the case, the impairment is not sufficient of itself to prevent the Applicant from doing any work for 30 hours or more per week within the next two years.

48.     The Tribunal finds the Applicant does not, therefore, have a continuing inability to work pursuant to subparagraph 94(1)(c)(i) of the Act, whereby the Applicant’s claim must fail.

49.     In making this decision, the Tribunal notes the Applicant is not precluded from lodging a further claim for DSP in the event his medical conditions worsen or his psychiatric condition becomes permanent.

CONCLUSION AND DECISION

50.     Taking account of all of the material before it, the Tribunal finds that the Applicant does not qualify for DSP pursuant to subsection 94(1) of the Act. Thus, the Tribunal finds that the decision of the SSAT is the correct decision in the circumstances.

51.     The Tribunal affirms the decision under review.

I certify that the 51 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Webb, Member

Signed:         .......................................................................................
  Associate

Date of Hearing  20 December 2003
Date of Decision  17 February 2003
Representative for the Applicant               self
Representative for the Respondent         Ms C Collis