Lukic and Department of Family and Community Services

[2000] AATA 392

DECISION AND REASONS FOR DECISION [2000] AATA 392

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N1999/1258

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      RADENKO LUKIC
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal       Mr J Barber, Member        

Date18 May 2000 

PlaceSydney

Decision      The decision under review is set aside.            
  (Sgd) Mr J P Barber
   ……………………………….

Member

CATCHWORDS
SOCIAL SECURITY – disability support pension – whether the Applicant's impairment was 20 per cent or more at the time of the original decision – impairment of 15 per cent found.

Social Security Act 1991 – ss 94, 94(1), 94(2).

REASONS FOR DECISION

Mr J P Barber, Member                 

1. This is an application by Mr Radenko Lukic ("the Applicant") for review of a decision of the Social Security Appeals Tribunal ("SSAT") dated 26 July 1999 (T2), which affirmed a decision of an Authorised Review Officer dated 10 June 1999 (T17). The original decision was made by a delegate of the Secretary, Department of Family and Community Services ("the Respondent") on 27 May 1999 (T13) denying the Applicant entitlement to the disability support pension.

2. At the hearing, the Applicant was self-represented and the Tribunal was assisted by an interpreter, Mr Michael Danic. The Respondent was represented by Mr Bernard Slattery of the Administrative Law Section of Centrelink. 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 following documents were also admitted into evidence:
   Report of Dr Medhat Guirgis, Consultant Orthopaedic Surgeon, to the Department of Social Security, dated 26 October 1999 Report from Dr W Graeme Shepherd to Dr Guirgis dated 11 November 1998 (Motor Conduction Study Report) Report from Dr D Kecmanovic, Consultant Psychiatrist, to "whom it may concern", dated 21 October 1999   An extract of Schedule 1B – Tables for them Assessment of Work-Related Impairment for Disability Support Pension, Department of Social Security, 1997       Exhibit A1  Exhibit A2  Exhibit A3   Exhibit R1          

APPLICABLE LEGISLATION

1. Section 94 of the Social Security Act (1991) ("the Act") states, as relevant:  see attached.
   EVIDENCE BEFORE THE TRIBUNAL

2. The Applicant gave oral evidence at the hearing. His evidence was translated by Mr Michael Danic for the benefit of the Tribunal and the Respondent. The Applicant explained that he had worked as an unskilled labourer undertaking heavy labouring tasks with metals and concrete most of his life. He reported that while his spine was deteriorating gradually, he experienced an injury at his last place of employment in Kurratha in Western Australia, where he fell from scaffolding.  The Applicant was unclear about the precise date of the accident, but thought it was during 1993.  He indicated that he had continued to try to work until 1997 when the pain became too great.   After the injury he reported that he suffered sharper pain in his back and in his left arm and shoulder and also experienced a loss of feeling in his left leg and foot.

3. He reported that most of the pain was experienced in his lower back and left leg.

4. The Applicant also reported that he began to suffer from anxiety and depression and this presented in the form of headaches and neck pain and a deterioration in his memory. He reported that he relies heavily upon his wife to assist him and that he is unable to do the type of work that he used to be able to do.  He said that any significant physical work would leave him bedridden.

5. Under cross examination from the Respondent, the Applicant reported that his general practitioner, Dr Marenkovitch, had prescribed medication for his anxiety and depression but he was unable to recall the name of the medication. He reported that medication had been prescribed prior to his being referred to the psychiatrist, Dr Kecmanovic on 4 December 1998.

6. Dr Kecmanovic, the Applicant's psychiatrist, was contacted by the Tribunal and agreed to give telephone evidence to the Tribunal.

7. Dr Kecmanovic stated that he had received a referral from the Applicant's general practitioner, Dr Marenkovitch, on 4 December 1998. He went on to indicate that the first consultation with the Applicant took place on 17 December 1998. He reported that the Applicant had told him that he had stopped working because he was "worn out" and exhausted and that he was going to apply for a disability support pension because he was unable to work any longer. Dr Kecmanovic described the Applicant's condition as "slightly depressed and anxious" and likely to withdraw in the face of minor difficulties. He also reported that the Applicant had told him about difficulties with his memory. Dr Kecmanovic prescribed four to six milligrams of Diazopan and provided counselling on four occasions on 4 February 1999, 25 May 1999, 13 December 1999 and 2 February 2000.

8. Dr Kecmanovic reported that the last time he had seen the Applicant he had also prescribed painkillers. He told the Tribunal that the Applicant was very angry at that time because his applications for disability support pension had been rejected.

9. Under cross examination Dr Kecmanovic told the Tribunal that the referral from the general practitioner had indicated reactive anxiety and depression and that the Applicant had been referred for assessment and treatment. In response to a question about how the treatment had progressed, Dr Kecmanovic reported that, in his view, no improvement was discernible and that the Applicant's condition was unlikely to improve either in a period of weeks or months. He also told the Tribunal that the Applicant had reported to him that he was withdrawing progressively from all types of social activities, becoming edgy and nervous. Under questioning from the Tribunal, Dr Kecmanovic diagnosed the Applicant as suffering from exhaustive depression and neurasthemia.

10. Mr Slattery drew the Tribunal's attention to the assessment carried out by the Applicant's general practitioner, Dr Marinkovich (T5) and the assessment by the Health Services Australia ("HSA") doctor, Dr Kanapathipillai (T9).  Mr Slattery pointed out to the Tribunal that in the case of the Applicant's general practitioner, the assessment of the Applicant's 'work ability' was much lower than the assessment of Dr Kanapathipillai.

11. However, Mr Slattery told the Tribunal that the Respondent accepted the Applicant had injuries which led to impairments that were equal to 15 points on the tables for the assessment of work-related impairment for disability support pension ("Impairment Tables").  On the issue of the anxiety and depression claimed by the Applicant's doctors, Mr Slattery pointed out the HAS had concluded that:

    "…His symptoms of stress should improve with further treatment within the next 6 months or so. Other than flat affect and inability to recall the names of medications and dates of events in his history, there is no clinical evidence of any other significant psychiatric symptoms. He attributes his sleeping difficulty to pain rather than to his stress. This condition is considered temporary because of recent onset and the likelihood of significant improvement with appropriate counseling [sic] and psychotherapy…"  (T9, p98)

1. Mr Slattery also pointed to paragraph four in the introduction to the Impairment Tables where it is noted that a rating can only be assigned after a comprehensive history and examination has been undertaken.  The strength of the argument from the Respondent is therefore that at the time of application for the disability support pension, the Applicant's anxiety and depression had not been "…fully documented, diagnosed,…investigated…treated and stabilised."

2. Following the conclusion of evidence by Dr Kecmanovic, Mr Slattery sought a brief adjournment of the Tribunal.  After the hearing resumed, Mr Slattery reported that the Respondent was not prepared to accept a ten point rating on the basis of psychiatric impairment at the time of the claim. He went on to note the difficulty of assigning a rating at the time of the claim had been borne out by the report from Health Services Australia, because of the absence of a proper diagnosis. He concluded that the psychiatric condition should not be considered rateable at the time of the claim or within three months of the claim.

3. Mr Slattery made the further point that the 15 points which had been accepted by the Respondent did not, in the view of the Respondent, prevent the Applicant from light duties of 30 hours per week or more. He pointed to recommendations from HSA which suggested that the Applicant might be capable of light work such as a car park attendant.
   CONSIDERATION OF EVIDENCE AND FINDINGS OF FACT

4. It is not disputed that the Applicant has a "physical, intellectual or psychiatric impairment" and therefore satisfies subsection 94(1)(a) of the Act. On the basis of the Applicant's physical impairment, the Tribunal accepts the 15 point rating which HAS assigned under Tables 5.1 (five points) and 5.2 (ten points).

5. The Respondent does not accept that the anxiety and depression which has been diagnosed by Dr Kecmanovic was evident at the time of application or within three months of the claim as provided by subsection 100(3) of the Act.  However Dr Kecmanovic has told the Tribunal that he first saw the Applicant prior to his claim for disability support pension.  At the time he diagnosed the Applicant's condition and commenced treatment.  That treatment consisted of medications and counselling and has continued up until about two weeks before the Tribunal hearing.

6. Dr Kecmanovic told the Tribunal that he had diagnosed Mr Lukic as suffering from neurasthenia which was described at T9 as:

   "…1. an abnormal condition characterised by nervous exhaustion and a vague functional fatigue that often follows depression. 2 (in psychiatry) a stage in the recovery from a schizophrenic experience, during which the patient is listless and apparently unable to cope with routine activities and relationships."  (T9, p99)

7. The Tribunal has before it conflicting evidence from the HSA doctor who maintains that the symptoms presented to him at the time of examination "should improve with further treatment within the next 6 months or so."  (T9, p98)  However, the evidence of Dr Kecmanovic, is that the condition was diagnosed before the claim for the pension and that treatment had begun.  He further reported that the condition had stabilised and that the Applicant's condition has not improved.

8. While it is understandable in the light of conflict of medical evidence, the original decision-maker would have noted the recent identification of the depressive condition and may have been swayed to favour the view point put by HSA

9. However, in light of the overview of all the evidence before the Tribunal, the benefit of time, and the report of the Applicant's treating psychiatrist which indicates diagnosis, treatment and stabilisation, the Tribunal finds itself in a different position from that of previous decision makers.

10. In the face of the conflicting opinions of the HSA assessment and that of Dr Kecmanovic, the Tribunal prefers the evidence of the specialist in this case. The time which has elapsed between the original identification of the depressive condition and the present, indicates that the permanent nature of the condition was predictable at the time of application and that the decision was influenced by the weight that was placed upon the HSA report, which suggested that the condition was only temporary. The time that has elapsed since the first consultation and diagnosis of the Applicant's condition has confirmed the permanence of the condition and establishes it as rateable under the Impairment Tables.

11. Under Table 6, ten points is assigned where an Applicant suffers from "moderate and regular symptoms and generally functions with some difficulty". This is consistent with Dr Kecmanovic's diagnosis and his assessment that the condition is permanent and not responding to treatment.

12. The effect of assigning a ten point rating under Table 6 for psychiatric impairment, is to raise the total rating to 25 points under the Impairment Tables. This therefore satisfies subsection 94(1)(b) of the Act.

13. There is some dispute between the Applicant's and the Respondent's medical evidence on the Applicant's 'work ability'.  The HAS assessment was undertaken without accepting the permanent nature of the Applicant's general practitioner (T5) the Applicant is not able to undertake any work as a result of his conditions.  The tribunal accepts their views and is of the view that the Applicant meets the requirements of subsection 94(1)(c)(i) of the Act.

14. The decision of the SSAT is therefore set aside.

    I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J Barber, Member

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

    Date of Hearing  23 February 2000
    Date of Decision  18 May 2000
    Representative for the Applicant              Self-Represented
    Representative for the Respondent        Mr B Slattery, departmental advocate