Mezzapesa and Secretary, Department of Families, Community Services and Indigenous Affairs

[2006] AATA 284

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 284

ADMINISTRATIVE APPEALS TRIBUNAL          Nº V2005/82

GENERAL  ADMINISTRATIVE DIVISION

Re:            CESARE MEZZAPESA (deceased)

Applicant

And:       SECRETARY,
  DEPARTMENT OF FAMILIES,

COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal:       Dr P.D. Fricker, Member

Date:29 March 2006

Place:Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) Patricia D. Fricker

Member

SOCIAL SECURITY ‑ disability support pension; whether impairment rating 20 points or more under the Impairment Tables ‑ whether severely disabled

Social Security Act 1991 s 94(1), Schedule 1B, s23(4B)

Social Security (Administration) Act 1999 Schedule 2, s 4

Agreement on social security between Australia and the Republic of Italy    Pt 1, Art 1(f)

REASONS FOR DECISION

29 March 2006

Dr P.D. Fricker, Member

1.      This is an application by Cesare Mezzapesa (deceased) (the applicant) for review of a decision made by the Social Security Appeals Tribunal (SSAT) on 16 December 2004, which affirmed a decision of an authorised review officer of Centrelink dated 9 July 2004 not to pay the applicant disability support pension (DSP).

2.      At the hearing on 31 January 2006 the applicant's brother Mr Mario Mezzapesa represented the applicant.  Mr David Perdon, a Centrelink advocate, appeared on behalf of the Secretary to the Department of Families, Community Services and Indigenous Affairs (the respondent).

3. The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1‑T37), together with a document tendered by the applicant (Exhibit A1) and documents tendered by the respondent (Exhibits R1- R6).

BACKGROUND

4.      The applicant was born in Italy in 1942, left school at the age of 10 and immigrated to Australia in 1967.  He worked for the Ford Motor Company as an automotive spray painter until April 1978 (T10, p63) and returned to live in Italy in 1979. In his early 30s, while still in Australia, he had surgery to remove kidney stones.  In 1980 he was diagnosed as suffering from hypertension and in the same year his left kidney was removed because of pyelonephritis.  In November 1984 he suffered a cerebral haemorrhage and underwent surgery to clip a cerebral aneurysm.  From 1 June 1986 he received an Italian disability benefit through the Istituto Nazionale della Previdenza Sociale (INPS) until 1 June 1989, when it was revoked.  The applicant fought the decision to revoke his Italian disability benefit through the Italian Magistrates' Court until, on 20 December 2001, the decision was reversed and his benefit was reinstated from the date of cancellation.  In 1990 the applicant lodged a claim for an Australian Invalid Pension.  His claim was unsuccessful on the grounds that his disability was assessed at only 10 per cent impairment under the Tables for the Assessment of Work-Related Impairment for Disability Support Pension (the Tables) in Schedule 1B of Social Security Act 1991 (the Act).

5.      On 30 December 2002 the applicant lodged a claim for disability support pension (DSP) with Centrelink (T6‑T7).  Over the ensuing months the applicant submitted a Work ability - Customer information form; a Treating Doctor's Report, completed by his treating doctor, Dr Crupi; and information related to proceedings in the Italian courts, with expert medical opinions relevant to those proceedings.  On 16 July 2003 Health Services Australia (HSA) completed a Medical Assessment Report (T17).  The report stated that the Italian medical information provided simply lists [of] conditions and did not provide any evidence of the effect those conditions had on the applicant's ability to function.  Centrelink requested further information from Dr Crupi in a letter dated 20 October 2003 (T19).  On 12 January 2004 a delegate of the respondent decided that the applicant was not qualified to receive DSP on the basis of the information supplied by Dr Crupi and information previously supplied.  On 15 September 2004 the applicant lodged an application with the SSAT to review the decision.  He was represented by his brother Mr Mario Mezzapesa at the hearing in Melbourne.  The SSAT affirmed the original decision on 16 December 2004. The applicant lodged an application for review of the SSAT decision with the Tribunal on 24 January 2005.

6.      On 26 February 2005 the applicant was admitted to hospital in Italy with a diagnosis of acute respiratory insufficiency and was placed on life support where he remained until his death on 29 March 2005.

7.      The issue before the Tribunal is whether the applicant was qualified to receive DSP at the time he lodged his claim or within 13 weeks of the date of claim.

EVIDENCE

8.      The Tribunal had before it documentary evidence  from the applicant himself and from his treating Doctor Dr Crupi, the medical documentation and opinions associated with the Italian legal proceedings and the evidence of the applicant's brother Mr Mario Mezzapesa. 

9.      On the Work ability - Customer information form, dated 3 February 2003 (T10) the applicant indicated that he had no problem sitting, standing, driving a car, using public transport, operating everyday appliances or machinery, reading, writing, speaking, hearing, concentrating, remembering, interacting with others, attending work or other appointments, understanding or following instructions, sleeping, managing his personal affairs, and caring for himself or others.  He indicated that he sometimes had difficulty breathing, and with bending, and always had difficulty with walking, lifting and carrying. 

10.     Dr Crupi provided three documents.  The first is dated 9 December 2002 (T8) in which Dr Crupi described the applicant's general condition as good, recorded his height as 166cm, weight as 87kg and blood pressure as 155/90. In the report Dr Crupi recorded some history and examination findings and a list of diagnoses (including that of hypertensive retinopathy) which are broadly consistent with all the other medical evidence provided. The report provided no indication of the applicant's symptoms or functional capacity.  The second document is the Treating Doctor's Report (TDR) dated 22 February 2003 (T11), in which Dr Crupi provided additional information including the applicant's medication: pravastatin 20mg, nifedipine 20mg and atenalol 100mg.

11.     On 20 October 2003 Centrelink requested further information from Dr Crupi.  He was asked to respond to specific questions relating to the applicant's symptoms and level of functioning.  Dr Crupi provided answers (T20) which indicated that the applicant had no evidence of angina; that his condition did not impact on his capacity to carry out everyday activities such as self-care, domestic duties, shopping and use of public transport; that he was able to walk 500 metres and had no difficulty coping below that distance.  He stated that there was a mild deficit in respiratory function that had no impact on the applicant's capacity to carry out everyday tasks.  He reported that the applicant had no pain in sitting or standing.  He confirmed that the applicant was able to walk for 500 metres but stated that he had difficulty walking further due to pain in his back and legs.  Dr Crupi's responses were accompanied by results of respiratory function tests dated 30 October 2003.  The tests reported FVC (forced vital capacity) that was 73 per cent of that predicted and FEV1 (forced expiratory volume in 1 second) that was 86 per cent of that predicted. FEV1/FVC was 94 per cent, indicating that the applicant did not have obstructive airways disease.  Lung volumes were reduced consistent with restrictive disease.

12.     Dr Crupi provided a final report dated 9 February 2005 (T36), a translation of which is provided in the respondent's exhibits.  In summary, Dr Crupi diagnosed hypertension and atherosclerotic vascular disease.  He advised that the applicant avoid heavy physical work.  He diagnosed chronic lung disease associated with easy fatigue and shortness of breath following physical effort.  He recommended that the applicant avoid intense physical effort and cool conditions and sudden fluctuations in temperature.  He stated that the applicant had pain in his spine with increasing physical effort.  The applicant's spinal condition was no obstacle to sitting or standing except when he was required to maintain the same position for extended periods, for example driving for long periods or engaging in sport requiring intensive muscular or joint use.  Dr Crupi's report also listed hypertensive retinopathy as a diagnosis.

13.     At the Tribunal hearing Mr Mario Mezzapesa argued that his brother had filled out the Work ability - Customer information form incorrectly.  He said because his brother could drive, it did not mean that he usually did; and that he did not use public transport because there was none in the area he lived.  He gave evidence that because the town where his brother lived covered a small area, his brother was able to walk everywhere he needed to go.  Mr Mezzapesa gave evidence that he walked with the applicant on occasions when he visited him, to a coffee shop, for example.  He said they did not walk fast or for long distances because there was no need.  He was not aware of his brother experiencing any symptoms or difficulties in the situations he encountered.  He said that his brother shopped nearby and carried his purchases home.  He used to purchase bottled water, a couple of dozen bottles at a time, and his brother's children collected these in the car.  He could not play sport.  Mr Mezzapesa said that the applicant's wife had a dressmaking business.  The applicant accompanied his wife to her workshop on most days.  He did the banking, kept the books, went to the post office, purchased the materials and looked after the customers.  The business was closed after the applicant's court case was successful because the applicant's wife no longer needed to work.  Mr Mezzapesa said he thought that was about two years ago, but later said that he thought it was at the end of 2001 when the case finished.

14.     Mr Perdon pointed to the applicant's statement of 20 December 2002, that his wife was the owner of a business.  Mr Mezzapesa said this may have been so, as he did not know for a fact when the business finished.  Mr Mezzapesa was asked if the applicant had complained to him of any specific symptoms.  He said the applicant's main complaints were against the system rather than aspects of his health.  He confirmed that the applicant did drive but not at night or for long distances.  He was unaware of the applicant having any problems sleeping or with his memory.  He said he had noticed that the applicant had become less patient and tolerant over the last few years.  He confirmed that Dr Crupi had been the applicant's usual treating doctor.  Mr Mezzapesa pointed out that the applicant had won a court case in Italy in December 2001 in which it accepted that he had been unable to work since 1994.  He said that the applicant's case was genuine and that whatever health problems had been he had subsequent died of them.

CONSIDERATION OF THE ISSUES

15. Section 94 of the Social Security Act 1991 (the Act) sets out the qualifications for DSP: Section 94(1) provides:

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.

16. The date at which entitlement is assessed or the period within which entitlement is assessed is found at Schedule 2, s 4(1)(a)(d) and (2)(a) of the Social Security (Administration) Act 1999 (the Administration Act):

Start day—early claim

4.(1)       If:

(a)a person (other than a detained person) makes a claim for a relevant social security payment; and

(b)the person is not, on the day on which the claim is made, qualified for the payment; and

(c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and

(d)the person becomes so qualified within that period;

the claim is taken to be made on the first day on which the person is qualified for the social security payment.

4.(2)       For the purposes of subclause (1), the following provisions have effect:

(a)subject to paragraph (b), any social security payment, other than newstart allowance or special benefit, is a relevant social security payment;

…

17. This application for review concerns the applicant's qualification for DSP at the date of claim on 30 December 2002 or within 13 weeks as referred to in the Administration Act. This means that the Tribunal must have regard to the applicant's medical conditions and the effect they were having on his ability to function during the months of January, February and March 2003.

18. Section 94(1)(a) of the Act provides that in order to qualify for DSP a person must have a physical, intellectual or psychiatric impairment. It is clear from all the medical evidence, and it is not in contention, that the applicant suffered from hypertension and from vascular and lung disease at the time he claimed DSP. As a result, he satisfied s 94(1)(a).

19. Section 94(1)(b) requires that a person’s impairment rating is of 20 points under the Tables . The applicant's treating doctor diagnosed atherosclerotic vascular disease and chronic lung disease. I place the most weight on Dr Crupi's evidence because, as the applicant's treating doctor, he was the one most likely to have the most detailed and up‑to‑date knowledge of the effect of the applicant's medical conditions. Indeed the applicant, Dr Crupi and Mr Mario Mezzapesa provided the only information with respect to the effect those medical conditions had on the applicant's ability to function. It is this information that is essential for the assessment of impairment ratings required in determining the eligibility for the Australian DSP.

20.     Table 1 is used to assess loss of cardiovascular and/or respiratory function by the measurement of exercise tolerance, and the relevant parts are reproduced below.

TABLE 1.       LOSS OF CARDIOVASCULAR AND/OR RESPIRATORY FUNCTION: EXERCISE TOLERANCE

Cardiovascular and Respiratory function is measured by reference to exercise tolerance.  A rating is obtained from Table 1 by determining the lowest MET band which causes restriction in activity from a cardiac or respiratory condition. 1 MET is defined as average oxygen consumption at rest which is 3.5mL O2/kg/min.

…

The appropriate MET level is calculated using the lists in Table 1.2.

….

Assignment of rating

Rating  Symptomatic Activity Level (METs)

NIL  7-8 or higher

FIVE  6-7

FIFTEEN  5-6

TWENTY  4-5

THIRTY  3-4

FORTY  2-3 or less

TABLE 1.2     METABOLIC COST OF ACTIVITIES

…

Metabolic Cost of Activities

1—2 METs Energy expended at rest or minimal activity

Lying down	sitting and drinking tea	using sewing machine (electric)
sitting down	sitting and talking on telephone	travelling in a car as passenger
strolling (slowly)	standing	typing
sitting and knitting

2—3 METs Energy expended to dress, wash and perform light household duties

Walking 3.5km/hr (slowly)	playing piano/violin/organ	clerical work which involves moving around bench assembly work sitting)
setting table	playing billiards
washing dishes	driving power boat
dressing	light sweeping	using self-propelled mower
light tidying, dusting	horseback riding at walk	polishing silver
driving a car	lawn bowls	making bed
cooking, preparing meals

3—4 METs Energy required for walking at average pace

Walking 5km/hr (average walking pace)	vacuuming sedate cycling (10km/hr)	machine assembly minor car repairs
shifting chairs	light gardening (weed/water)	light carpentry (chiselling,  hamming, sawing and planing with hand tools)
hanging out washing	playing golf (with power buggy)
tidying house (includes carrying heavy objects)	welding

4—5 METs Moderate activities: encompasses more active daily activities with the exclusion of manual labour and vigorous exercise

Mopping floors	gentle swimming	stocking shelves with light objects
golf (pulling buggy, carrying bag)	ballroom dancing
beating carpets	stacking firewood	painting outside of house
polishing furniture	cleaning windows	wallpapering
hoeing (soft soil)	pushing light power mower over flat suburban lawn at slow, steady pace	walking 6.5km/hr (sustained brisk walk, discomfort talking at the same time)
showering
cleaning car (excludes vigorous polishing)

5—6 METs Heavy exercise: manual labour or vigorous sports

Shovelling dirt (12 throws/min.)	digging in garden	walking slowly but steadily up stairs
tennis doubles (social non-competitive)	scrubbing floors	pushing a full wheelbarrow (20kg)

6—7 METs

loading truck with bricks pace walking carrying load upstairs (10kg)

7—8 METs Very heavy exercise

Jogging (8km/hr)	sawing hardwood with hand tools	using pick & shovel to dig trenches
tennis (singles, non- competitive)	swimming laps (non-competitive)

8—9 METs

Running (9km/hr) chopping hardwood

10 METs

Running quickly (10km/hr) Cycling quickly (25km/hr) carrying loads (10kg) up a gradient

21.     Dr Crupi's evidence was that the applicant could walk for 500 metres without restriction but was precluded from performing heavy physical work or engaging in intense physical effort.  There was no evidence of angina.  Mr Mezzapesa's evidence was not inconsistent with Dr Crupi's evidence.  If the applicant's exercise tolerance were assessed using Table 1 as the SSAT has done, Dr Crupi's evidence indicated that the applicant would be symptomatic at 5 to 6 METS.  This is consistent with an impairment rating of 15 points.

22.     Were the applicant's respiratory condition to be assessed under Table 2, an identical result would be obtained.

23.     A chest X-ray report dated 20 May 2003 (T28, p157), although incompletely translated in the respondent's exhibits, does not suggest emphysema; but rather pulmonary venous congestion and some interstitial problem. The respiratory function test result is consistent with a restrictive lung disorder.  An FVC of 73 per cent of that predicted is consistent with an impairment rating of 15 points using the Table.  I therefore find that the applicant has an impairment rating of 15 points using either Table 1 or Table 2.  The two ratings are not to be added to each other because the loss of function attributed to each of the conditions overlap, as clearly indicated in Dr Crupi's report.

24.     The same can be said for impairment related to hypertension.  Table 1 states that hypertension is assessed under Table 20.  Table 20 warns against double counting of a particular loss of function.  Since there is no evidence of separate loss of function attributable to hypertension or to raised‑cholesterol levels, other than the loss of exercise tolerance discussed above, it is not appropriate to assign additional impairment points.

25. It is not possible to assign an impairment rating for back and leg pain due to spinal spondylosis using Table 5, which requires evidence of loss of the normal range of spinal movement. It is reasonable to acknowledge the applicant's evidence that he experienced difficulties with bending, walking, lifting and carrying; particularly since his responses do not claim impairments in other areas, suggesting that his responses in these areas of function were significant. All these functions are relevant to spinal function. Dr Crupi reported widespread spondyloarthrosis of the spine with no pain at rest and pain with increased physical effort. He also reported pain when the applicant walked more than 500 metres. The evidence is not inconsistent. I accept that the applicant suffered from a back complaint and that his symptoms were consistent with an impairment rating of 10 points under Table 20. This is a separate loss of function from loss of exercise tolerance. The applicant's combined impairment rating is in excess of 20 points. Therefore, s 94(1)(b) is satisfied.

26.     Because the applicant was living in Italy, DSP was only available to him via the Agreement on social security between Australia and the Republic of Italy (the Agreement).

27. Section 23(4B) of the Act defines severely disabled as follows:

23(4B)     For the purposes of this Act, a person is severely disabled if

(a)a physical impairment, a psychiatric impairment, an intellectual impairment, or 2 or all of such impairments, of the person make the person, without taking into account any other factor, totally unable:

(i)to work for at least the next 2 years; and

(ii)unable to benefit within the next 2 years from participation in a program of assistance or a rehabilitation program; or

(b)the person is permanently blind.

Mr Perdon submitted that it was the respondent's policy that severely disabled was the equivalent of being unable to work eight hours a week; and that this has been accepted by the Tribunal in the past.

28.     Having considered all the evidence I find that the functional limitations reported would not have precluded the applicant from working for eight hours a week.  His ability to assist his wife in the conduct of her small business points to his having a number of useful skills.  The evidence is that he provided her with this assistance during 2002 and that the activity then ceased as they no longer required it for their financial support.  I am unable to be satisfied that the applicant was severely disabled within the accepted meaning of the term.  Therefore, he was not qualified to receive DSP at the time he lodged his claim or within the ensuing 13 weeks.

DECISION

29.     The Tribunal affirms the decision under review.

I certify that the twenty‑nine [29] preceding paragraphs are a true copy of the reasons for the decision of:

P.D. Fricker, Member

(sgd)     Catherine Thomas

Clerk

Date of hearing:  31 January 2006

Date of decision:  29 March 2006
Advocate for the applicant:          Mr Mario Mezzapesa
Advocate for the respondent:       Mr David Perdon, Centrelink