Kitanovski and Secretary, Department of Family and Community Services

[2004] AATA 301

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 301

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/947

General Administrative Division		)
Re		KRSTO KITANOVSKI

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr M A Griffin, Member

Date24 March 2004

PlaceSydney

Decision The decision under review is affirmed.

[Sgd] Mr M A Griffin, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – chronic neck and back pain – depression not fully treated and stabilised – 10 total impairment points – Applicant does not qualify for disability support pension – decision affirmed

Social Security Act 1991 section 94

REASONS FOR DECISION

24 March 2004 Mr M A Griffin, Member     

1.      This is an application by Mr Krsto Kitanovski for review of a decision of the Social Security Appeals Tribunal (“SSAT”) dated 16 May 2003. The SSAT affirmed the decision of an authorised review officer (“ARO”) of Centrelink dated 14 April 2003 to reject Mr Kitanovski’s claim for disability support pension (“DSP”).

2.      At the hearing of this matter on 15 March 2004, Mr Kitanovski was self represented and the Secretary, Department of Family and Community Services (“the Respondent”) was represented by Mr James Larcombe, an advocate from the Centrelink Service Recovery Team. The Tribunal was assisted by a Macedonian interpreter.

3. The Tribunal received into evidence the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T20) as well as exhibits marked A1 for the Applicant and R1 – R3 for the Respondent.

BACKGROUND

4. On 4 December 2002, Mr Kitanovski lodged a claim for DSP. The Treating Doctors report of Dr Oreb, which formed part of the application, listed Mr Kitanovski’s claimed disabilities as depression, chronic neck pain and chronic lumbar spine pain. On 14 January 2003 Dr Kotulski, a medical adviser from Health Services Australia (“HSA”), examined Mr Kitanovski and allocated him a total impairment rating of 10 points under the Impairment Tables contained in Schedule 1B of the Social Security Act 1991 (“the Act”). 

5.      On 7 February 2003 Centrelink rejected Mr Kitanovski’s claim for DSP.  On 18 February 2003 Mr Kitanovski applied for review of the decision. On 14 April 2003 an ARO of Centrelink affirmed the decision of the original decision-maker. On 24 April 2003 Mr Kitanovski lodged an appeal against the decision with the SSAT. The SSAT affirmed the decision on 16 May 2003. On 12 June 2003, Mr Kitanovski requested review of the decision by this Tribunal.

ISSUES

6.      The issues before the Tribunal are:

(a)Whether Mr Kitanovski suffers from a physical, intellectual or psychiatric impairment; and if so

(b)Whether the impairment is of 20 points or more under the Impairment Tables set out at Schedule 1B of the Act; and if so

(c)Whether Mr Kitanovski has a continuing inability to work

LEGISLATION

7.      The relevant legislation in this matter is the Social Security Act 1991, especially section 94 and Schedule 1B.

EVIDENCE

oral evidence

8.      Mr Kitanovski is 65 years of age. He has two adult children as well as grandchildren. He is divorced from his wife and lives with his son in a house owned by his son. Mr Kitanovski jointly owns a unit with his ex-wife and his son, where his ex-wife currently resides. He told the Tribunal that he has problems with his knees, back and neck, he sleeps poorly, and suffers from diabetes and high blood pressure. He stated that overall “I am not happy with my life”. Mr Kitanovski stated that he is old and unfit for work due to his various disabilities.

9.      Mr Kitanovski takes various medications regularly including Karvea for blood pressure, Diabex and Diamicron for his diabetes, and Diasepam, an antidepressant. Mr Kitanovski said that he takes Celebrex occasionally and that three to four months ago Dr Salama prescribed him Lomotil for stomach pain, which he no longer takes.

10.     Mr Larcombe for the Respondent asked Mr Kitanovski how he usually spends his days. Mr Kitanovski said that as he doesn’t sleep well at night, he wakes up feeling tired in the morning. He said that he takes two tablets in the morning, one for blood pressure and one for diabetes. He then takes a short, 15 minute walk around the street and the park, followed by a rest. He then has breakfast, rests again, and watches television. Mr Kitanovski said that at night he finds it difficult to fall asleep.  He gets up three to four times each night to pass water.

11.     Mr Kitanovski said that he does not need assistance dressing or cleaning. He has few friends and rarely socialises. He said that he suffers pain especially when he is standing still and that when he is sitting or standing he needs to move around to alleviate the pain.  Mr Kitanovski told the Tribunal that he owns a car but rarely drives. He said he maintains a car in case of emergencies and that if he didn’t own a car he would feel as though he “had no legs”.

12.     Following cross-examination by the Respondent, the Tribunal asked Mr Kitanovski further questions concerning his morning walk. He told the Tribunal that he walks about 300 metres in the morning, which takes him about 15 minutes.  The Tribunal read the following passage from the SSAT decision to Mr Kitanovski:

“Mr Kitanovski explained about his back pain.  He said that it is worse when he has to bend. He added that he could stand for about one hour before he has to rest. He could also sit for one and sometimes two hours before he has to stand to relieve the pain.

…

He goes for a walk everyday for about 30 minutes or longer if the weather is good.”

13.     The Tribunal then gave Mr Kitanovski an opportunity to explain the discrepancies between his evidence to the SSAT and the evidence he was giving at the hearing.  Mr Kitanovski said that he couldn’t remember what he said at the SSAT hearing and that the SSAT “wrote what they wanted”. He stated that “I can walk 30 minutes with rest, I can’t do that all the time.” He said he last walked on Saturday morning for 10 minutes and that he couldn’t remember the last time he walked for longer than 10 minutes. He explained that he has a poor memory and is forgetful.

14.     Mr Kitanovski went into further detail with reference to his daily activity. He said that he reads the papers and mostly spends his time watching television. He said that he is able to sit for half an hour before his back pain causes him discomfort, although it depends on the weather. He said that for example on the day of the hearing, which was overcast and cool, he would not be able to sit for very long. Mr Kitanovski did not make it clear to the Tribunal how precisely the weather impacted his discomfort levels whilst sitting.  Mr Kitanovski sat for the duration of the 1 hour and 10 minute hearing without requesting a break or needing to stand.

15.     Mr Kitanovski told the Tribunal that he suffers from depression.  He said that he has been taking Diasepam tablets twice a day for approximately three months and visits Dr Kecmanovic, psychiatrist, every six weeks; his next visit scheduled for the following Thursday.

medical evidence

16.     The Tribunal had before it medical reports from Dr Oreb dated 4 December 2002 and 30 January 2004, Dr Kotulski dated 14 January 2003, Dr Richard Evans dated 9 August 2001 and Dr Kecmanovic, Psychiatrist dated 1 September 2003 and 4 February 2004. 

17.     In his report dated 14 January 2003, Dr Kotulski reported that Mr Kitanovski suffered from one-quarter loss of normal range of movement in his neck and back.  He noted that Mr Kitanovski “sits comfortably, rises easily and transfers easily, walks slowly but freely. He reports decreased walking tolerance.”  Dr Kotulski allocated 5 impairment points each for Mr Kitanovski’s neck and back conditions under Table 5.1 and Table 5.2 respectively.  Dr Kotulski reported Mr Kitanovski’s depression as “mild” allocating nil impairment points.  Dr Kotulski noted that “He has seen a psychiatrist once 2 years ago. He does not take antidepressant medication and uses only sedatives to aid sleep. He has a normal affect, interacts and converses normally”.  Dr Kotulski assessed Mr Kitanovski’s impairments at a total of 10 impairment points.

18.     Dr Oreb, provided a treating doctors report dated 4 December 2002 which noted Mr Kitanovski’s conditions of depression, chronic neck and lumbar spine pain and diabetes. Dr Oreb rated Mr Kitanovski’s cervical spine condition at 5 impairment points and his lumbar spine condition at 10 impairment points.

19.     Dr Oreb noted that Mr Kitanovski’s depression was currently being treated with “rest/psychiatric counselling”.  Dr Oreb provided no further detail as to this treatment such as the commencement date or the frequency of treatment.  Exhibit R3 is a copy of Table 5.1, 5.2 and 6 of the Impairment Tables annotated by Dr Oreb. Under Table 6 Dr Oreb has marked a rating of 10 impairment points for depression and in response to the question:

“Do you consider Mr Kitanovski’s depression had been fully treated, investigated and stabilised between 4 December 2002 and 4 March 2003?

If Yes, Please detail how Mr Kitanovski’s depression had been treated/investigated and stabilised including any medication.

Dr Oreb wrote:

“ – Treated with antidepressives

-referral Prof Kecmanovic (psychiatrist)

-stabilised yes.”

20.     The Tribunal had before it two letters from Dr Kecmanovic.  In his letter dated 1 September 2003, Dr Kecmanovic wrote “He has been taking Diasepam 2 on an irregular basis. There has been no change in his overall mental presentation since first time when I saw him.”  In his letter dated 4 February 2004, Dr Kecmanovic stated that he had seen Mr Kitanovski eight times since his initial report, that he has provided supportive counselling and that Mr Kitanovski has been taking Diasepam 2.

21.     Exhibit R2, a bundle of documents, includes a report by Dr Richard Evans dated 9 August 2001. This report provides an overall medical assessment and thorough medical history. 

SUBMISSIONS

22.     In closing submissions Mr Kitanovski told the Tribunal the he believed that older people experienced more problems in accessing DSP than younger people.  He said that although Dr Oreb allocated him sufficient impairment points, Dr Kotulski from HSA didn’t give him enough points so he was “obviously on their side.”

23.     The Respondent submitted that Mr Kitanovski has a total impairment rating of 10 impairment points under the Tables as reported by Dr Kotulski.

24.     The Respondent asserted that there was nothing in Mr Kitanovski’s oral evidence that indicates that he experiences a lot of pain standing for more than 30 minutes or sitting for more than 60 minutes.

25.     The Respondent submitted that Mr Kitanovski’s depression cannot be considered to be fully treated and stabilised in December 2002, which is the time that Mr Kitanovski lodged his claim for DSP. It was submitted that for this reason, Mr Kitanovski’s depression should not be considered under the Impairment Tables. The Respondent added that Mr Kitanovski’s diabetes and blood pressure are considered well controlled and thus attract nil impairment points.

26.     The Respondent noted that Mr Kitanovski is currently in receipt of Newstart Mature Age Allowance. He stated this type of social security benefit does not require Mr Kitanovski to look for work. The Respondent also noted that Mr Kitanovski is currently paid at the same rate as if he were receiving DSP and is entitled to a concession card.  Although, this is not relevant to whether Mr Kitanovski is eligible to receive DSP, the Respondent makes the point that the amount of social security benefits received by Mr Kitanovski would be unchanged if he were granted DSP.

27.     In closing, the Respondent submitted that although Mr Kitanovski cannot perform heavy labour, he is able to undertake sedentary light duties.  Therefore, Mr Kitanovski does not satisfy the requirements for DSP.

CONSIDERATION OF THE ISSUES AND FINDINGS

28.     The Tribunal carefully considered all of the evidence, the submissions of the parties and the relevant legislation in coming to the correct and preferable decision in this matter.

29.     The operative period to consider Mr Kitanovski’s claim commences on 4 December 2002, the day he lodged the claim for DSP. The period concludes 13 weeks thereafter on 5 March 2003.

30.     The Tribunal detected several discrepancies and contradictions between the oral evidence provided by Mr Kitanovski at the hearing and his evidence documented by the SSAT in their written reasons for decision.  Mr Kitanovski told the Tribunal that his memory is poor and he thus has difficulty recalling facts.  However, the Tribunal does not consider this explanation sufficient in accounting for the contradictory evidence.

31. The Respondent concedes and the Tribunal finds that Mr Kitanovski has a physical impairment and therefore satisfies paragraph 94(1)(a) of the Act. Section 94 of the Act relevantly provides:

“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)…”

32.     The Tribunal finds that Mr Kitanovski suffers from the following physical impairments: chronic neck pain and chronic back pain.  Medical evidence of both Drs Oreb and Kotulski support this finding.

33.     The Tribunal finds that Mr Kitanovski’s condition of depression is not fully treated or stabilised. The Tribunal finds that as Mr Kitanovski did not visit Dr Kecmanovic at any time during 2002 and as he takes medication irregularly, it cannot be said that this condition was being treated or stabilised during the relevant period. The information provided by Dr Oreb is of limited assistance, as it does not establish that the condition has been stabilised or treated.  Therefore, the condition of depression cannot be considered as a permanent impairment and cannot be included in the assessment of Mr Kitanovski’s total impairment points.

34.     The next issue is thus to determine whether the impairments of chronic neck and lumbar spine pain attract a rating of 20 points of more under the Impairment Tables. With respect to Mr Kitanovski’s neck condition, both Dr Oreb and Dr Kotulski agree that the appropriate impairment rating is 5 points under Table 5.1, a loss of a quarter of normal range of movement.  The Tribunal agrees with this assessment.

35.     With respect to Mr Kitanovski’s back condition, Dr Oreb allocated 10 impairment points under Table 5.2.  Dr Kotulski allocated 5 impairment points for this same condition.  The Tribunal agrees with Dr Kotulski’s assessment, as Mr Kitanovski did not provide sufficient evidence to establish that he experiences back pain with many activities, including standing for about 30 minutes or sitting for 60 minutes.  Mr Kitanovski told the Tribunal as well as the SSAT that he is able to walk for 30 minutes. It should also be noted that he sat for the duration of the hearing, which lasted for over one hour.  Dr Oreb provided no details as to why he assessed the back impairment at 10 impairment points.

36.     Therefore, the Tribunal prefers the report of Dr Kotulski to that of Dr Oreb and agrees with the Respondent that the total correct rating of Mr Kitanovski’s impairments of neck pain and back pain is 10 impairment points.

37. Mr Kitanovski does not satisfy subsection 94(1)(b) of the Act, which states that the impairments must attract a rating of 20 impairment points or more under the Impairment Tables. It is therefore not necessary to determine whether Mr Kitanovski has a continuing inability to work, as he does not satisfy subsection 94(1)(b). However, for the sake of completeness I will address this issue.

38.     The Tribunal finds that Mr Kitanovski does not have a continuing inability to work.  It has been accepted that he is unable to undertake heavy manual labour due to his physical impairments.  However, Mr Kitanovski did not provide evidence that he is unable to undertake light sedentary work duties.  Mr Kitanovksi told the Tribunal that he is able to drive, and walk around the house as well as spend periods of the day sitting watching television. He said that although he needs to move around and readjust his sitting position, he is able to sit for a long period. He sat during the entire hearing of just over one hour without needing to stand.  He told the Tribunal that he sat in a particular position to alleviate the pain. Mr Kitanovski told the SSAT that he can walk for 30 minutes if the weather is pleasant, however, he told this Tribunal that he only walks 30 minutes on certain occasions and usually will only walk for 15 minutes.

39.     Therefore, as Mr Kitanovski can sit for over an hour and walk for 30 minute periods without experiencing harsh pain and as he can watch television and drive a car, the Tribunal finds, in the absence of evidence to the contrary, that Mr Kitanovski does not have a continuing inability to work.

40. Mr Kitanovski’s fails to meet the criteria of section 94 of the Act, as his conditions do not attract 20 impairment points under the Impairment Tables. He therefore does not qualify for DSP and his application must fail.

41.     The Tribunal affirms the decision under review.

I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M A Griffin, Member

Signed: A. Krilis       .....................................................................................
  Associate

Date of Hearing  15 March 2004
Date of Decision  24 March 2004
Representative for the Applicant    Self
Advocate for the Respondent        Mr James Larcombe