Marijanovic and Department of Family and Community Services
[2001] AATA 587
•27 June 2001
DECISION AND REASONS FOR DECISION [2001] AATA 587
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/1028
GENERAL ADMINISTRATIVE DIVISION )
Re PETER MARIJANOVIC
Applicant
And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Ms JA Shead, Member
Date27 June 2001
PlaceSydney
Decision The Social Security Appeals Tribunal decision of 13 June 2000 is set aside and in substitution therefore the Tribunal finds that the Applicant was eligible for disability support pension.
[Sgd] MS J A SHEAD
Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – impairment rating – whether continuing inability to work
Social Security Act 1991 s.94
REASONS FOR DECISION
Ms JA Shead, Member
This is an application by Peter Marijanovic ("Mr Marijanovic") for review of a decision made by a delegate of the Secretary of the Department of Family and Community Services ("the Respondent") to refuse Mr Marijanovic's disability support pension ("DSP"). An authorised review officer affirmed the decision on 19 April 2000. The Social Security Appeals Tribunal ("the SSAT") decided on 13 June 2000 to affirm that decision.
Mr Marijanovic was present at the hearing. A departmental advocate, Mr George Lozynsky, represented the Respondent. An interpreter competent in the Croatian language assisted the Tribunal during the evidence of Mr Marijanovic.
Documents submitted pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents") ("the AAT Act") were taken into evidence. The following documents were also tendered to the Tribunal:
Exhibit A1: Centrelink letter dated 3 January 2001 to Mr Marijanovic.
Exhibit A2:Dr RM Phadke medical certificate dated 29 August 2000 for Mr Marijanovic.
Exhibit A3:Centrelink Medical Certificate for Mr Marijanovic completed and dated 22 December 2000 by Dr RM Phadke.
Exhibit A4:Dr Michael Houang MRI Cervical and Thoracic Spine report dated 16 August 2000.
Exhibit R1:Dr RM Phadke report addressed to Centrelink dated 6 September 2000 in respect of Mr Marijanovic.
Mr George Lozynsky provided the Tribunal with the Respondent's Statement of Facts and Contentions dated 19 September 2000.
BACKGROUND
By way of background, the Tribunal extracts the history of the matter from the SSAT decision:
"1. Mr Marijanovic is a 55 year old man, who has not been engaged in remunerative employment since November 1988, due primarily to back injury that occurred in 1982. He is qualified to work as an electrician.
2. On 3 August 1990, Mr Marijanovic lodged a claim for the invalid pension. On 20 September 1990, a Commonwealth Medical Officer assessed him as having lost half the normal range of movement of his lumbar spine with right-sided sciatica. He was given a 30% impairment rating. He was subsequently granted the pension.
3. On 16 December 1991, his local doctor provided a medical report as part of a review of Mr Marijanovic's entitlement to the pension. Dr Phadke expressed the opinion that his patient was not fit to return to his usual work but would be able to perform office work under certain conditions. On 3 February 1992, another Commonwealth Medical Officer assessed Mr Marijanovic and found that he had only half the normal range of movement of his lumbar spine and chronic pain in his right leg. The officer's opinion was that Mr Marijanovic would not be able to work for at least 30 hours per week nor participate in training to assist his return to work. Mr Marijanovic continued to receive his pension.
4. In March 2000, Centrelink undertook another review of Mr Marijanovic's entitlement to what was now called the disability support pension. Dr Phadke provided a treating doctor's again expressed the opinion that while his patient was not able to work at his usual job, he could work full-time in other occupations. On 7 April 2000, a Medical Adviser for Health Services Australia undertook an assessment of Mr Marijanovic's impairment. He made the same finding as in previous assessments, namely that Mr Marijanovic has back pain with the loss of half the normal range of movement of his back. Under the new impairment tables this level of impairment was given 10 points. The Medical Adviser conceded that he would not be able to undertake manual work but still considered he could perform light duties on a full-time basis. Subsequently, Centrelink cancelled his disability support pension.
5. On 14 April 2000, Mr Marijanovic requested an internal review of this decision. An authorised review officer found that he has a back condition, anxiety depression, bowel and urinary problems. Apart from the back condition, his treating doctor had not reported the other problems. The review officer did not allocate impairment ratings for them. The officer also accepted the 10 point rating for the back impairment and was of the same opinion as the HAS officer that Mr Marijanovic was able to be retrained for work. The authorised review officer affirmed the cancellation of Mr Marijanovic's pension. "
The SSAT did not alter the authorised review officer's decision, for the reasons set out in paragraph 14 of its decision:
"14.The tribunal had a sense that Mr Marijanovic would have some difficulty working and does genuinely experience difficulty sitting for prolonged periods which would certainly affect his ability to perform sedentary work. However, the evidence from the majority of medical reports, even form his own treating doctor, does not at this stage support a conclusion that he would be unable to work or that he would not on most occasions to sit for periods that were sufficient for undertaking light, full-time work. There are no other restrictions that would impact upon his ability for sedentary, light work. The tribunal was not prepared on the available evidence to find that he has a continuing inability to work as defined by section 94(2) of the Act."
In the Application for Review to the Tribunal for review of the SSAT decision, Mr Marijanovic's reasons for the Application were:
"Disagrees with medical evidence SSAT decision." (T1)
In his opening remarks, and in response to the Tribunal's question to Mr Marijanovic as to why he disagreed with the medical evidence, Mr Marijanovic told the Tribunal that during his consultation with Centrelink's doctor he had been asked to stand and sit, and "that was the whole medical".
On behalf of the Respondent, Mr Lozynsky advised the Tribunal that for the purposes of subsections 94(1) (a) and (b) of the Social Security Act 1991, ("the Act") it was conceded that Mr Marijanovic had a physical impairment warranting 20 points under the impairment tables in Schedule 1B of the Act.
The Tribunal had to determine the application having regard to the written material, the evidence and the case law.
LEGISLATION
To qualify for DSP, section 94 of the Act must be satisfied:
"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;
…
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 form 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 the 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."
In general terms, the impairment rating is determined under Schedule 1B of the Act and the "continuing inability to work" is determined by reference to subsections 94 (2), (3) and (5). To prove the continuing inability it is necessary that the impairment itself would prevent a person from working in the next two years and also would prevent him or her from undertaking any educational, vocational or on-the-job training over the next two years or that such training would if undertaken not enable the person to do any work within the next two years.
ISSUES BEFORE THE TRIBUNAL
As the Respondent conceded that Mr Marijanovic had an impairment that satisfied subsection 94(1)(a) and that he had 20 impairment points under Schedule 1B that satisfied subsection 94(1)(b), the Tribunal had to decide whether he had a continuing inability to work. "Continuing inability to work" meant the impairment itself would prevent Mr Marijanovic from working in the next two years and also prevent him from undertaking any educational, vocational or on-the-job training over the next two years or whether such training would if undertaken not enable him to do any work within the next two years.
EVIDENCE
14.Dr Phadke had provided a Treating Doctor Report dated 21 March 2000 (T14). He had been Mr Marijanovic's local doctor since early 1988. In his report he diagnosed "back problems " and the condition was long term. He certified that in his opinion Mr Marijanovic could not return to his usual job under two years or more but that he was likely then to be able to return to any kind of work requiring 30 hours per week. He was of the opinion that he would benefit from vocational training in respect of a "non physical job".
15.In a Centrelink Medical Review – DSP review form dated 29 March 2000 (T16), Mr Marijanovic had listed his illnesses/disabilities as "back injury, bowel problem, anxiety/depression, urinary problem". Dr Phadke had provided a further Treating Doctor Report dated 31 March 2000 (T17), where he diagnosed "chronic back condition, disc herniation" and repeated his above opinion.
16.Dr Trinette Thomson's radiological report of the lumbar spine dated 6 April 2000 concluded:
"A previous L4/5 laminectomy and discectomy is noted. There is pronounced lower lumbar facet arthrosis with possible bony narrowing of the exiting foramina and spinal canal." (T18)
17.Mr Marijanovic had also been examined in relation to his back condition by Health Services Australia ("HAS") Dr Doron Arad. That examination was on 7 April 2000.
18.Mr Marijanovic told the Tribunal he was born in 1944, and he had arrived in Australia in 1970. His trade qualification was as an electrician and he was still licensed to do that work. Between 1978 to 1980 he had also worked as a locomotive driver. He had worked on underground tunnels for power stations and sewerage tunnels and he had also worked as an industrial electrician.
19.Mr Marijanovic stated he could not stand nor sit for long periods. He experienced right side back pain all of the time and he could not feel his upper right leg and sometimes could not feel his heel. He also stated that he had fluid on his spine and did not know the explanation for it.
20.He had physiotherapy. At home he found massage and heat helped. He had attended Wyong and Gosford Hospitals and had undertaken a pain management program. He said he had learnt to live with the pain. He consulted his local doctor about every three – four weeks. He did not take any medication.
21.The Tribunal referred Mr Marijanovic to T19, page 93, where HAS Dr Arad reported on 7 April 2000:
" … I find that Mr Marijanovic is suitable for full time light duties. Examples of suitable duties include positions as a car park attendant, a supervisor, an information/inquiries officer, a ticket collector or an automatic photography developer. "
The Tribunal asked Mr Marijanovic whether he could do that work. He told the Tribunal that it was virtually impossible for him to imagine doing full-time work and he said, "At home I have to lie down."
22.In response to how much time he had to spend lying down, Mr Marijanovic said that during the last week he had spent two days lying down and it depended on the severity of his pain. He said he had pain all the time but sometimes the pain was worse than at other times.
23.The Tribunal referred Mr Marijanovic to the workability report at T19, page 90, where Dr Arad made assessments by ticking a box opining, amongst other things, to the question "How can this person travel to and from and move around at work?" that Mr Marijanovic would have "minor limitations with movement". Mr Marijanovic stated "I say no I can't because I can't sit, can't sleep at night on my right side and I can't sit on my right side."
24.Mr Marijanovic told the Tribunal that he filled in his day watching television and sometimes he went for a walk. He drove a car sometimes. He could not sit driving for long, saying it caused a burning sensation in his legs. He shared accommodation and the other householder did the housework, he sometimes did some washing and hung clothes on the line. Sometimes he could not make his own bed. He got his own meals but there were times when it would take him three hours to make a cup of coffee. He spent most of the day at home, could not remember when he last had a holiday and had last been overseas in 1986.
25.In cross-examination, Mr Marijanovic stated that in about 1993 Professor Noel G Dan, neurosurgeon, had advised him as to surgery however he had declined further surgery because of the risk of damage to nerves. Mr Marijanovic confirmed that he shared a house with a woman, that she did most of the household tasks, that Mr Marijanovic did his own cooking, and that he sometimes did the shopping but did not carry the shopping to the car. He stated that he had no problem showering and dressing but sometimes it would take him an hour. He stated that he did not engage in any social activities. Mr Marijanovic was asked, "How do you feel about work?", and he replied that he would like to work. In response to Mr Lozynsky's question whether Mr Marijanovic could work if there was an employer willing to give him light duties and accommodate his conditions, Mr Marijanovic stated "I can't, I can't sit". Mr Lozynsky asked Mr Marijanovic how he responded to Dr Phadke's statement of 20 March 2000, that Mr Marijanovic was able to return to any kind of full-time work (T14, page 62, question 8). Mr Marijanovic stated "I can't do it." Mr Lozynsky noted that Dr Phadke had confirmed that opinion in the further Treating Doctor's Report dated 29 March 2000 (T17).
26.Mr Loyznsky noted Mr Marijanovic's enquiry of Centrelink about March 2000 (T12, T13) as to his position if he had gone overseas permanently. Mr Marijanovic stated that he had considered going to Croatia when he had sold his former house however he subsequently bought half the house in which he now resided. Asked whether he would have worked in Croatia, Mr Marijanovic stated he would "just try to live". He stated that that there would come a stage when he could not manage and that he did not have anyone to help him.
SUBMISSIONS
27.Mr Loyznsky submitted that Mr Marijanovic failed to satisfied subsections 94(1)(c) and 94(2) of the Act. On behalf of the Respondent, it was accepted that Mr Marijanovic's back condition precluded him from working except he could work light duties 30 hours a week. Mr Lozynsky submitted that the Tribunal should take into account the evidence of Dr Phadke available to the Respondent at the time of decision under review. That opinion was supported by HAS Dr Arad. Mr Lozynsky requested the Tribunal disregard the medical report of Dr Phadke tendered in evidence (Exhibit R1). On behalf of the Respondent, Mr Lozynsky's written submissions were that while Dr Phadke found Mr Marijanovic unemployable for any kind of employment for the next two years, that was not based on medical grounds.
28.During the course of the hearing, the Tribunal had discussed with Mr Loyznsky whether the Respondent had contacted Dr Phadke to ascertain whether any further investigation results were available and whether the Respondent had addressed with Dr Phadke that the report dated 6 September 2000 was at odds with his earlier opinions. Mr Loyznsky contended that Dr Phadke's opinion was only one opinion.
29.While it was acknowledged that Mr Marijanovic was over 55 years of age, it was contended that age was not a barrier to him working light duties. It was contended that Mr Marijanovic was capable of work. In conclusion it was submitted that Mr Marijanovic did not have a continuing inability to work.
30.Mr Marijanovic submitted that he could not work, that he had to live with back and associated pain and that he had bowel and urinary problems which were unexplained.
CONSIDERATION OF THE ISSUES
31.Mr Marijanovic has other medical conditions: bowel and urinary problems and anxiety/depression. At the time of review for DSP those conditions were not subject to reports by either Dr Phadke nor Dr Arad. Mr Marijanovic had put in evidence that the HSA doctor did not examine him in regard to his back. Mr Marijanovic stated that the bowel and urinary problems exacerbated his back condition.
32.In respect of the other conditions, there is however no medical report giving a diagnosis nor opining as to the effect on workability. In the absence of medical evidence concerning the bowel and urinary problems and anxiety/depression, as well as the lack of consideration of them in the decision under review, the Tribunal is unable to accept Mr Marijanovic's submission that those conditions should be accepted as being present and unchanged from the date of the review for DSP or thereabouts. Accordingly, the Tribunal only considered the back and associated conditions.
33.The back condition dates from an injury in 1982. It was investigated by various doctors consulted by Mr Marijanovic. Mr Marijanovic had a laminectomy in 1993. He had physiotherapy and pain management. It is not disputed that back and associated conditions were disc prolapse of the lumbar spine, chronic back pain, restriction of his range of movement of 50 per cent and referred pain into his right leg. It is sufficient to satisfy DSP requirements for Mr Marijanovic 's back and associated conditions to be accepted as an existing condition at the time of DSP Qualification Report (T29). From the medical evidence the Respondent had accepted, as does the Tribunal, on the balance of probabilities, that the level of impairment of the back and associated conditions would rate at least 20 points. Accordingly, the Tribunal was also well satisfied that the back and associated conditions existed at sufficient severity to meet the requirements for DSP pursuant to subsections 94(1) (a) and (b).
34.The central issue was to decide whether there was a "continuing inability to work" as required by subsection 94(1)(c). The Tribunal noted that Dr Arad stated:
" Mr Marijanovic looks after his cooking, cleaning, shopping and laundry duties but finds them to be difficult. Mr Marijanovic's treating doctor finds him suitable for full time employment, but not for his usual duties. … I agree that Mr Marijanovic suffers a genuine medical problem".
Also Dr Arad stated:
"Furthermore, because of his muscoskeletal pains, I find that Mr Marijanovic is unfit for any manual work. However, as impairments to this extent do not prevent most people from being involved in restricted duties (despite the recognized additional difficulty), I find that Mr Marijanovic is suitable for full time light duties. Examples of suitable duties include positions as a car park attendant, a supervisor, am information/inquiries officer, a ticket collector or an automatic photography developer. Doing these duties, Mr Marijanovic should not be required to bend, lift more than 5 kg or be in the same posture for more than 15 minutes." (T19, page 93).
Dr Arad concluded:
"Mr Marijanovic will benefit from training as long as it is suitable for his disability."
35.The Tribunal noted Dr Arad's report did appear to rely on his medical history when he stated "Mr Marijanovic has been suffering from: 1. Back pain with loss of a half from the range of movements of his back." Dr Arad's report did not include any clinical examination results. That accords with Mr Marijanovic evidence that he did not undergo an examination. Having regard to the lack of clinical examination, on balance the Tribunal, was not satisfied that Dr Arad's conclusion was well founded.
36.The Respondent relied upon a DSP medical report of Dr Tarn, dated 3 February 1992. There it had been noted that Mr Marijanovic's impairment prevented him from working full time but stated he was capable of working at least eight hours a week in light/ unskilled areas (T10, page 47) and that Mr Marijanovic would have benefited from a vocational rehabilitation program (T10, page 49). Having regard to the age of that report, the Tribunal did not consider it should be relied upon.
37.The Respondent also relied upon the treating doctor's reports of Mr Marijanovic's local doctor, Dr Phadke. The reports of Dr Phadke dated 20 March 2000 and 31 March 200. Dr Phadke reported that Mr Marijanovic was likely to return to full time work immediately but not his usual work (T14, page 62 & T17, page 75). In addition, Dr Phadke noted that Mr Marijanovic's disability would generally not affect his ability to perform any kind of work over the next two years (T14, page 63 & T17, page 76).
38.There is however the report of Dr Phadke dated 6 September 2000 (Exhibit R1). There it is reported that:
"Mr Peter Marijanovic has been a patient of mine for about 12 years. As you may be aware he suffered a back injury a few years ago and had spinal surgery. Since the surgery Mr Marijanovic has been stable for sometime but his back problems have started again.
He has seen the back specialist and had further investigations done including an MRI which showed dilated central canal in the terminal path of the spinal cord. He is due for further investigations.
Mr Marijanovic suffers from constant pain and has tingling and numbness in the lower limbs which prevents him from sitting and standing for a length of time.
In my opinion Mr Peter Marijanovic is unfit for any physical labour which involves bending, lifting, walking or any strain on his back.
I think he can do very little as far as job training is concerned as any job training involving any kind of manual labour or involving long periods of sitting or standing (which he is unable to do) would require him to have breaks every hour.
In my opinion Mr Peter Marijanovic is unemployable for any kind of employment for the next 2 years unless any new treatment comes up. I think he should go on an invalid pension so that he can look after his health." (Exhibit R1)
39.There is also the MRI Cervical and Thoracic Spine report which stated:
"Conclusion:- The appearances suggest a local area of hydromyelia extending from T7/8 level down to the conus. No cerebellar tonsillar ectopia is seen" (Exhibit A4)
40.The Tribunal was satisfied that those recent medical reports substantiated Mr Marijanovic's evidence. Overall the Tribunal found Mr Marijanovic's evidence was credible. He did not diminish nor exaggerate the effects of his back and associated conditions.
41.The Tribunal was satisfied that the above aspects of dilated central canal in the terminal path of the spinal cord appeared related to Mr Marijanovic's back and associated conditions and that his back problems had "started again".
42.In the most recent report (Exhibit R1), Dr Phadke had expressed an opinion which appeared to contradict his opinion in his earlier reports as to Mr Marijanovic's work ability. In the absence of direct evidence from Dr Phadke, and any further evidence inconsistent with Dr Phadke's most recent opinion, the Tribunal was prepared to reconcile Dr Phadke's differing opinions on the basis of Mr Marijanovic's back problems having started again or that the back and associated conditions had deteriorated. It also seemed to the Tribunal appropriate, in the absence of specialist medical opinion, to accept a treating doctor's opinion.
43.Dr Phadke's most recent opinion was that Mr Marijanovic was unfit for manual employment and would likely to remain so, that a range of vocational and educational training was precluded by Mr Marijanovic's back and associated conditions, and he was unemployable "for any kind of employment for the next two years". The Tribunal considered that included light duties. In all the circumstances the Tribunal considered that Mr Marijanovic satisfied the additional requirement of having a "continuing inability to work" pursuant to subsection 94 of the Act.
CONCLUSION
44.The Tribunal found that Mr Marijanovic's back and associated conditions were sufficient to qualify him for a DSP.
I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Ms JA Shead, Member.
Signed: .....................................................................................
AssociateDate/s of Hearing 17 January 2001
Date of Decision 27 June 2001Solicitor for the Applicant Self Represented
Solicitor for the Respondent Mr George Lozynsky
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