Kukic and Secretary, Department of Family and Community Services

[2003] AATA 264

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 264

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   N2002/972

GENERAL ADMINISTRATIVE DIVISION		)
Re		NIKOLA KUKIC

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal REAR ADMIRAL A R HORTON AO MEMBER

Date21  March 2003

PlaceSydney

Decision The decision under review is affirmed 

[sgd] Rear Admiral A R Horton AO

Member

CATCHWORDS

SOCIAL SECURITY – eligibility for disability support pension – Applicant born in Croatia – migrated to Australia as refugee in 2001 – whether Applicant has physical, intellectual or psychiatric impairment – whether impairment is of 20 points or more under the Impairment Tables – whether continuing inability to work exists

Social Security Act 1991 – section 94, schedule 1B

Social Security (Administration) Act 1999 – schedule 2

REASONS FOR DECISION

21 March 2003  Rear Admiral A R Horton AO Member

1.      Mr Nikola Kukic, the Applicant in this matter, seeks review of a decision of the Social Security Appeals Tribunal (“the SSAT”) on 9 May 2002 which affirmed a decision of an authorised review officer (“ARO”) on 1 March 2002, that he is not eligible for the disability support pension (“DSP”).  The decision by the ARO had in turn affirmed the original decision by an authorised delegate of the Secretary, Department of Family and Community Services (“the Respondent”) dated 24 December 2001 which determined that the Applicant was not so eligible.

2. The Applicant lodged an application for review by the Administrative Appeals Tribunal (“the Tribunal”) on 10 July 2002, an application for extension of time to lodge an appeal from the decision of the SSAT having been granted pursuant to section 29 of the Administrative Appeals Tribunal Act 1975. At a hearing before the Tribunal on 19 February 2003, the Applicant was self represented and gave oral evidence. Ms C Collis, an advocate for Centrelink, appeared for the Respondent. Mr Dragan Cvetkovic, an interpreter fluent in the Serbian language, was present to assist the Tribunal.

3. The Tribunal had before it the documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T- documents”). The Tribunal also took into evidence the following documents:

Exhibit A1A translated report from the Croatian language to the English language by the Self-Managing Interest Community of Pension and Invalid Insurance of the Workers of Croatia dated 14 May 1980.

Exhibit A2Report by Dr D Kecmanovic, Psychiatrist, dated 11 March 2002

Exhibit A3Report by Dr D Kecmanovic dated 5 September 2002

Exhibit A4Treating Doctor’s Report by Dr P Tomasevic dated 17 September 2002

Exhibit A5Report by Dr P Edwards, Gastroenterologist, with attached pathology reports, dated 22 January 2003

Exhibit A6Report by Dr M Habib dated 4 February 2003   

Exhibit A7Ultrascan Radiology report by Dr M Waterland dated 5 February 2003

Exhibit A8Statement by Jadranka Kukic undated

Exhibit R1Respondent’s Statement of Facts and Contentions dated 7 February 2003

ISSUES

4.The issues in this matter are:

(a) whether, for the purposes of section 94 (1) of the Social Security Act 1991(“the Act”), the Applicant has a physical, intellectual or psychiatric work related impairment as defined in the introduction to schedule 1B of the Act; and

(b)if so, whether the impairment, of itself, is of 20 points or more pursuant to section 94(1)(b) of the Act: and

(c)if so, whether the Applicant has a continuing inability to work pursuant to section 94 (1)(c).

LEGISLATION

5. Section 94 of the Act defines the qualification criteria for the disability support pension, and states, relevantly:

"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:

...

"work" means work:

(a) that is for at least 30 hours per week at award wages or above; and

(b)       ..."

6. Schedule 2, Part 2 of the Social Security (Administration) Act 1999 relevantly states:

"4. Start day - early claim

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 was 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 was 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."

7. Impairment is assessed against the work-related Impairment Tables at Schedule 1B of the Act. The introduction to the Tables states, relevantly:

"2. These tables are designed to assess impairment in relation to work and consist of system based tables that assign ratings in proportion to the severity of the impact of the medical conditions on normal function as they relate to work performance. These Tables are function based rather than diagnosis based. ...

3. These tables give particular emphasis to the loss of functional capacity that a person experiences in relation to work. ...

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. ...

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;

…

It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment …In those cases where significant functional improvement is not expected…it may be reasonable to consider the condition stabilised.

…

8. In general, pain or fatigue should be assessed in terms of the underlying medical condition which causes it. ..."

BACKGROUND

8.        Mr Kukic was born in Yugoslavia on 9 July 1944.  In about 1967 he commenced work as a machinist, working with concrete products on building sites.  In about 1980, as a result of illness, he became unfit for such work and was transferred to light duties of a storeman in the same industry.  In 1991, he ceased work – and has not worked since - when he was obliged to move from the city to a small village as a result of the civil war.  In 1995, he and his family were forced to move again to Serbia, living near the town of Belgrade until migrating to Australia as refugees in July 2001.

9.        In the Treating Doctor’s Report (“TDR”) of 18 October 2001, which accompanied a claim on or about 9 November 2001 for the DSP by the Applicant, Dr Tomasevic, General Practitioner, states that he first saw Mr Kukic in “4/01”.  This is undoubtedly in error.   Mr Kukic is of the opinion that he first saw Dr Tomasevic in September or October of 2001.  Mr A Zagic, counsellor EIP-STARRTS, notes in a report at T9/43 that he (Mr Zagic) referred Mr Kukic to Dr Kecmanovic, Consultant Psychiatrist, whose report is dated 27 September 2001.  The only inference that may be drawn is that Mr Kukic had been a patient of Dr Tomasevic for a relatively short period before submitting his claim.   In the TDR, Dr Tomasevic diagnosed post traumatic stress disorder (“PTSD”), adjustment disorder, depression and neck pain, and considered that Mr Kukic could not return to any kind or work for more than two years.

APPLICANT’S EVIDENCE

10.       Mr Kukic gave his evidence in a quiet and subdued manner in the Serbian language.  He informed the Tribunal that he has no English.  Apart from his first month in Australia, he has continued to live in rented premises near Liverpool with his wife and daughter.  He has one son who lives elsewhere.  He does not work and stated that he could not do so in his present medical condition.

11.      He indicated that he suffered a severe head injury in the 1960’s, but did not seek to imply that the injury was necessarily related to his subsequent illnesses.  He worked as a building machine operator until 1980, when because of illness he was assigned to more suitable employment.   This action is confirmed at Exhibit A1, wherein a decision dated 14 May 1980 in that respect is made by the Self- Managing Interest Community of Pension and Invalid Insurance of the Workers of Croatia which notes him as being “fit for full time work in another suitable job …that corresponds to his vocational qualifications.” 

12.      Mr Kukic described his adverse medical conditions at that time as being related to the prostate, stomach, back and shoulder pains and severe headaches. He gave evidence that he underwent physiotherapy and received various medications, including Brufen, Diclofenac and Voltaren in subsequent years.  In cross examination, he stated that he had “a few visits” to obtain psychiatric treatment and to obtain medication, which he recalled as being Diazepam.    

13.      When forced to move in 1991 because of the civil war, he returned to the village in which he was born.   Here he found it hard to obtain medication.  In 1995, he moved to Kosovo, finding accommodation of one room and a kitchen in a small house.  Again because of the war, and he confirmed that he remained a civilian throughout, his family moved to an eight square metre room which they shared with three other families, in an industrial town near Belgrade.  Here too, they suffered the privations of war, particularly as an aircraft factory was located in the town.  In July 2001, the family migrated to Australia.

14.      When asked to describe his present medical condition, he initially stated it remains the same as it was on arrival in Australia. In response to a later question, he said that his main problem of neck and headache conditions was now worse than two years ago.  He listed his illnesses as severe headaches, which require him to spend 24 to 48 hours in bed, severe pain in the neck and both shoulders and arms which is “there all the time”, and pain in the knees to the extent that he is unable to walk every fifth or sixth day.         

15.      Mr Kukic stated that his lower back pain comes and goes, with a frequency of every three to four days.  He finds that three tablets of Vioxx each day gives some relief.  When questioned as to chest pain, noted in a medical form apparently completed by him on 23 December 2001 (T6/21), Mr Kukic agreed that examination had revealed no cardiac condition, but stated that notwithstanding, he cannot lie on his left side.  A prostatic condition, diagnosed by Dr A Elliott, HSA Medical Advisor, on 3 December 2001, developed some 15 years ago.  Mr Kukic stated that he experiences urinary frequency but takes a form of tea to help; he experiences minimal incontinence at night.

16.      Mr Kukic described his daily life as one of staying at home and watching television.  He walks when feeling well enough, and in those circumstances, can walk for 30 minutes to an hour.  He can undertake limited light cleaning in the home, but finds housework very hard.  As earlier noted, when his headaches is most severe, he will be confined to bed for 24 to 48 hours.   He does not smoke or drink.  He does not drive, but can travel, not that easily, in public transport for about an hour.   After a rest, he could continue.  He gets on well with his family, but sometimes wants to be alone.   He has some friends, and they normally call on him.  At times he feels depressed, but is unable to ascertain why.         He has previously attended English classes, but ceased doing so when the lessons were increased from three to five days per week.

17.      Shortly after his arrival in Australia, he was given counselling – which he believed was in relation to the events he had experienced in Croatia and Serbia – by a counsellor at STARTTS, Carramar, but he did not think this particularly helped.  In diagnosing PTSD in October 2001, Dr Tomasevic described clinical features as “flashbacks to events in the war in former Yugoslavia”.. Given the known circumstances in that country in that period, the Tribunal considers such a suggestion not unreasonable, but notes that the Applicant made no reference to this issue in his evidence.   

18.      Mr Kukic was accompanied at the hearing by his daughter.  She did not give evidence.  In a statement at Exhibit A8, she opines that Mr Kukic has been “disabled since 1980 because of back pain, headaches and a neck pain”.  She states that Mr Kukic uses painkillers (Caffetin or Cafergot) almost every day, leading to stomach problems and periodic vomiting.  She considers he has “severe PTSD” because of his experiences in Croatia and Serbia, and needs special care.

MEDICAL EVIDENCE

19.      As referred to earlier, a Croatian document relating to the Applicants medical condition in 1980 was before the Tribunal.  The next medical report is that by Dr Kecmanovic, who in his report of 21 September 2001, notes that Mr Kukic was “mildly depressed and anxious”, and that he presented with symptoms of Chronic Adjustment Disorder.   He initiated him on Diazepam when requested.  He notes that Mr Kukic had not previously seen a psychiatrist nor taken psychotropic medication, this being at odds with the Applicants evidence to the SSAT where it is stated in that decision that “in Kosovo he saw psychiatrists for his condition and took medication”. In evidence to the Tribunal he stated he had “made a few visits to psychiatrists in Serbia and to get medication”   

20.      Dr Tomasevic diagnosed PTSD, adjustment disorder, depression and neck pain in his TDR of 18 October 2001.  He notes psychiatric therapy by Dr Kecmanovic, and treatment by analgesic and non-steroidal anti-inflammatory medications for neck pain.   He considers Mr Kukic to be unable to return to work of any kind, or study, for more than two years, but in rating how illness or disability might affect ability to preform work (Part C), errs on the side of minimum difficulty.  In contrast, responses by Mr Kukic to questions in relation to the effect of disabilities on daily living on a medical detail form (Part K) of 3 December 2001 are generally marked as “often” or “all the time”.

21. Dr A Elliott, Medical Advisor HSA, examined Mr Kukic on 3 December 2001. His diagnosis of a cervical spine condition associated with a right sided headache gave a Nil impairment rating under Table 5.1 of the Impairment Tables at Schedule 1B of the Act, based on normal neck mobility and no abnormal conditions being identified under radiological examination (Dr T Ecker report of 19 October 2001 refers). His diagnosis of a thoraco-lumbar spine condition was given a Nil rating under Table 5.2, mobility and radiological examination being normal. Chest pain symptoms also warranted a Nil impairment rating (under Table 20), it being considered musculoskeletal, which would prevent heavy lifting, bending and prolonged postures.

22.      Dr Elliott diagnosed a prostatic condition of some 15 years duration.  On the basis of no urinary incontinence, this condition was also assessed at Nil impairment rating (under Table 16).  The final diagnosis was that of PTSD/depression.  Dr Elliott found this condition to be mild/moderate, with no psychosis, and with the potential for significant improvement in the next six to nine months with specialist psychiatric treatment.  He noted Mr Kukic was on Valium but no anti-depressant medication.  He considered Mr Kukic temporarily unfit for full-time work.  An impairment rating of 10 points under Table 6 was considered appropriate.   On 24 December 2001, the Respondent refused the claim for DSP on the basis that Mr Kukic was only prevented from undertaking full-time work for a limited period.       

23.      Reference was earlier made to counselling at STARTTS.  In a report by Mr A Zagic, Counsellor dated 23 January 2002, Mr Kukic is seen as being “severely affected by the highly traumatic experiences he had in his country of origin and during the process of migration.  He experiences recurrent nightmares, disturbed sleep pattern, emotional numbing, as well as severe anxiety.  He also has severe problems with concentration and memory and is easily startled, very alert, fearful and irritable.” 

24. Schedule 2 part 2 of the Social Security (Administration) Act 1999 effectively provides a 13 week timeframe from the date a claim for DSP is lodged, in which the conditions pursuant to section 94 can be met, this period concluding on or about 9 February 2002. On 11 March 2002, Dr Kecmanovic reported (Exhibit A2) that he had seen Mr Kukic three times since his first examination in September 2001, and that his mental state had deteriorated to the point of prescribing the anti-depressant Dothiepin, with psychological/psychiatric assistance to continue.

25.      Two months later, the SSAT affirmed the decision of the Respondent, assessing the total impairment rating as 10 points for the psychiatric condition of PTSD/depression.   The SSAT noted medication as Prothiaden (as prescribed by Dr Kecmanovic) and that Mr Kukic had ‘accordingly’ ceased to take Diazepam.   There was no indication by the SSAT as to whether Mr Kukic was taking Valium, but Celebrex (in lieu of Diclofenac which he had taken in Serbia) as an anti-inflammatory for shoulder, neck and back was identified.    In evidence to this Tribunal, Mr Kukic said he was presently taking Cafergot for his headaches as prescribed by Dr Tomasevic, and Prothiaden as prescribed by Dr Kecmanovic, but not on a regular basis.  He also takes Endep for depression, but there is no indication as to when and who that was prescribed by.  For his shoulder, neck and back pain he has switched from Celebrex to Vioxx.

26.      On 5 September 2002, Dr Kecmanovic wrote at Exhibit A3 that there had been no change in the condition of Mr Kukic, but noted that he had not seen him for some four months.   On 17 September 2002, Dr Tomasevic submitted a further TDR (Exhibit A4), listing diagnoses of osteoarthritis (relating to the previously diagnosed neck and pain conditions), gastritis, PTSD and depression.  Clinical features and treatments were substantially the same as in the original TDR, and the assessment remained that Mr Kukic could not work for more than two years.

27.      Exhibits A5 to A7 refer to recent medical examinations or opinions.  Dr Edwards, Gastroenterologist, discusses at exhibit A5 the need for tests relating to the gastritis condition diagnosed by Dr Tomasevic.  This is not seen as relevant to the matters before the Tribunal.  At Exhibit A6, Dr Habib notes that available x-rays (which the Tribunal assumes are those by Dr Ecker earlier referred to) of the cervical and dorsal spine show mild changes only.  He notes bilateral anterior knee pain from patella-femoral arthralgia.  At Exhibit A7, Dr Waterland reports on further radiological tests, confirming only mild degenerative changes in the cervical and lumbar spines, a moderate loss of disc height in the latter, and some thickening in both shoulders of the subacromial bursas.

SUBMISSIONS

28.      In summing up his situation, Mr Kukic stated that he would work if his health permitted, his health problems having affected his life for the last 20 years.  Whilst he seeks medical treatment on a regular basis he tries to help himself.  He takes prescribed medication, but this does not improve his medical conditions, and in turn this leads to more anxiety and depression. 

29.      The Respondent submitted that the decision not to grant DSP was correct in light of the medical evidence.  The Respondent submitted that radiological examinations revealed only mild degenerative changes in the spine, albeit the later report of 5 February 2003 by Dr Waterland, indicated some deterioration since 2001. Physical examination before Dr Elliott showed minimal restrictions in movement.  Further the pathology conditions reported for both shoulders in the report by Dr Waterland were mild, and in any event not relevant to the timeframe of the claim before the Tribunal.

30.      As regards headaches, knee problems and prostatic conditions, the Respondent submitted that there was insufficient medical evidence to suggest that the former was as severe as postulated, that the knee problem was not supported by radiological examination nor the evidence that the Applicant could walk for up to one hour, and the prostatic condition was mild.  None of these conditions warranted an impairment rating.

31.      The Respondent submitted that the assessment of 10 points under Table 6 for Psychiatric Impairment was supported by the evidence.  There was no definitive indication as to whether the condition was diagnosed prior to September 2001.  At that time, Dr Kecmanovic considered it to be mild.  In December 2001, Dr Elliott diagnosed the condition as moderate, observing that Mr Kukic had been prescribed the anti-anxiety agent Diazepam.  Later reports by Dr Kecmanovic indicated an increase in medication.  The Respondent submitted that the evidence, including the absence of psychosis, militated against an impairment rating higher than 10 points.

ANALYSIS OF EVIDENCE AND FINDINGS 

32.      Mr Kukic gave some evidence to the Tribunal in respect of the conditions in which he and his family lived in the years preceding his migration to Australia.  The Tribunal accepts without question that conditions were often most difficult, and that in effect is acknowledged by the fact that he entered this country as a refugee.   But notwithstanding the emphasis placed on the psychological impact of those years by the STARRT counsellor, there is limited evidence before the Tribunal by way of medical examinations and reports to support the contentions of Mr Kukic that his medical conditions are such as to meet the reqiuirements for eligibility for the DSP.

33.      The decision taken in Croatia in 1980 (Exhibit A1) in respect of the Applicant’s loss of fitness to perform his normal employment specifically recognises an entitlement to work full-time on “other suitable duties”..  Those duties are not defined, but Mr Kukic gave evidence that he continued in the building industry as a storeman until he ceased work some 11 years later in 1991.   Circumstances of the civil war at that time were significant in leading to the cessation of that particular employment, but there is no evidence before the Tribunal to support a conclusion that he could no longer work because of his medical condition.  The are no medical reports available to the Tribunal for the period 1980 to 2001, and there is conflicting evidence as to whether Mr Kukic had seen a psychiatrist in that period.  Nor is there any confirmation that in the later years, Mr Kukic received physiotherapy treatment and was prescribed the various medications referred to in evidence.

34.      Dr Tomasevic diagnosed PTSD, adjustment disorder and depression.  He referred in the initial TDR to flashbacks, insomnia, headaches, nightmares and an inability to concentrate.  Dr Kecmanovic saw Mr Kukic shortly after his arrival in Australia.  He acknowledges the harsh circumstances in Croatia and Serbia, but observes him to be mildly depressed and anxious, diagnosing his condition as having symptoms of Chronic Adjustment Disorder and prescribing an anti-anxiety agent.   Dr Elliott for the Respondent subsequently diagnoses a condition of PTSD/depression, considering it to be mild/moderate, with no evidence of psychosis.  He further postulates significant improvement under psychiatric treatment.       

35.      The next report by Dr Kecmanovic in March 2002, after three further visits by Mr Kukic, states that the condition has deteriorated and that Mr Kukic has been placed on an anti-depressant.  His next report in September 2002 suggests there has been no change in the clinical condition, although last seen some four months earlier.  In evidence to the Tribunal, Mr Kukic stated that he still took Prothiaden, but “not regularly” and that he had recently changed to another specialist.    In giving his evidence Mr Kukic appeared composed, with no outward sign of tension or depression. 

36.      The Tribunal accords with the diagnosis of PTSD and depression as conceded by the Respondent.  The issue to be determined is the impairment rating that should be assigned to that condition.   Table 6 of the Impairment Tables gives relevant criteria as:

“TEN   Moderate and regular symptoms and generally functioning with some difficulty. (eg. noticeable reduction in social contacts or recreational activities, or the beginnings of some interference with interpersonal or workplace relationships).  May have received psychiatric treatment which has stabilised the condition.  Minor effects on work attendance and/or ability to work but the impairment would not prevent full-time work (eg. short periods of absence from work).

TWENTY      Psychiatric illness or disorder with either serious symptomatology or impairment in functioning that requires treatment by a psychiatric (eg. frequent suicidal ideation, severe obsessional rituals, frequent severe anxiety attacks, serious anti-social behaviour, diagnosed psychotic illness with continuing symptoms.  There is significant interference with inter personal or work place relationships, with serious disruption or work attendance or ability to work”.    

37.      There is insufficient evidence before the Tribunal to meet the criteria of 20 points.   Notwithstanding the adverse circumstances encountered by Mr Kukic in the years leading up to his acceptance as a refugee, there is a lack of substantive evidence to suggest that a psychiatric condition of such magnitude existed at that time, and in any event, it would be outside the claimable period within the legislation..   Whilst acknowledging the observations of the STARRT counsellor, there is no supporting evidence from the HSA medical adviser.  The evidence of Dr Kecmanovic in September 2001 is that “the patient is mildly depressed and anxious”.   In March 2002 he finds that the mental condition has deteriorated; his most recent report of 5 September 2002 suggests no further change, albeit that he had not seen Mr Kukic for some four months.  But in earlier noting the deterioration, Dr Kecmanovic does not allude to a condition that fits the 20 points criteria, let alone imply that such a condition existed within the thirteen week period relevant to the consideration of the claim by Mr Kukic.  The Tribunal takes account of the evidence of the Applicant, and the supporting evidence by his daughter, but finds that 10 points is the appropriate rating to define the Applicant’s psychiatric condition under Table 6.       

38.      At Exhibit R1, the Respondent’s Statement of Facts and Contentions, the Respondent addressed the further conditions relating to cervical and thoracic spine, prostatism and chest pain.  With the exception of neck pain, these conditions were not diagnosed at the outset by Dr Tomasevic, but were accepted as relevant conditions by Dr Elliott of HSA.   On the evidence before the Tribunal, these conditions are accepted as being relevant to the matter under review. 

39.      Dr Tomasevic diagnosed the clinical features of neck pain as being a chronic condition related to osteoarthritis.  Dr Elliott postulated that this pain from a cervical spine condition was associated with a right-sided headache – a condition described in evidence by Mr Kukic – but found no other clinical features and a normal range of movements.  The radiological examination scan by Dr Ecker in October 2001 shows no abnormalities, and whilst later examination (February 2003) by ultrasound shows small deficiencies in the shoulders, that examination revealed only mild degenerative changes in the cervical spine.  Mr Kukic stated that he takes the anti-inflammatory medication Vioxx to counter the pain which “is there all the time”.

40.      Table 5.1 is relevant to cervical spinal function, and it notes that determination of impairment must be based on a demonstrable loss of function.   No loss of movement has been identified, and hence the appropriate rating is Nil points.   This does not take account of neck pain, which in accordance with the instructions in the introduction to the Tables, can be assessed under Table 20 Miscellaneous.  An assessment under Table 20 must be supported by medical reports and a history consistently indicating chronic entrenched pain and fatigue.   The SSAT observed that there is no evidence to support the contention that the neck condition is such as to cause the degree of pain described pain, which is apparently controlled to an extent by medication.  There is also insufficient medical evidence as to the cause or extent of neck pain, and the Tribunal further notes the Applicant’s evidence that the neck pain was much less in late 2001 than at present.  In the circumstances, the Tribunal is unable to give any impairment rating to this condition under Table 20.

41.      The range of movement recorded by Dr Elliott for the thoraco-lumbar spine is normal in all aspects.  The radiological examination by Dr Ecker in October 2001 shows no abnormalities, and the later examination by Dr Waterland revealed only slight degenerative changes.  In January 2003, Dr Habib opines that changes revealed by x-ray are mild.   In the circumstances, a Nil impairment rating under Table 5.2 is appropriate and the Tribunal so finds.

42.      The onset of prostatism occurred some 15 years ago.  The condition was not diagnosed by Dr Tomasevic and does not apparently impact on the Applicant’s daily life except by an increased urinary frequency.   Mr Kukic stated that there was minor incontinence with some leakage in bed, but this has not been reported elsewhere nor treated.   In the circumstances, a Nil impairment rating under Table 16, against the criteria of “minor stress incontinence.…”,  is the appropriate rating and the Tribunal so finds. 

43.      In September 2002, the condition of gastritis was diagnosed by Dr Tomasevic.  Dr Edwards has suggested at Exhibit A5 that further investigative procedures be considered.   Given that this possible condition was identified outside the period under review, and is neither “fully documented, …treated and stabilised” as required under Schedule 1B, it is not further addressed. This also relates to the more recently reported pain in the knees, and the Tribunal notes that Dr Waterland found no abnormalities on radiological examination.

44.      The one remaining symptom is that of chest pain.  Dr Elliott assessed this pain as being musculoskeletal, not of cardiac origin, and mild. Mr Kukic acknowledged that no cardiac condition had been identified, but confirmed that he could not sleep on the left side.  He gave no evidence of any other adverse effects, and in the absence of any other evidence, the Tribunal finds for a Nil impairment rating under Table 20.

45. The total impairment rating is therefore 10 points, this being insufficient to meet the criteria of 20 or more points required pursuant to section 94(1)(b) of the Act. Having not met that criteria, it is unnecessary for the Tribunal to consider the third leg of the conditions for eligibility for the DSP, that being whether the Applicant has a continuing inability to work pursuant to section 94(1)(c) of the Act.   The Tribunal therefore makes no finding in that regard.

46.      The decision under review, that of the Social Security Appeals Tribunal of 9 May 2002, that the Applicant was not eligible for the Disability Support Pension on 24 December 2001, is affirmed.

I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of Rear Admiral A R Horton AO

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

Date of Hearing  19 February 2003
Date of Decision  21 March 2003
Representative for the Applicant    Self

Advocate for the Respondent             Ms C Collis