Mirceski and Secretary, Department of Family and Community Services

[2004] AATA 1231

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1231

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No.      N2003/1794

GENERAL ADMINISTRATIVE DIVISION )            

Re DRAGICA MIRCESKI

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Senior Member M D Allen

Date10 November 2004

PlaceSydney

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No.      N2003/1794

GENERAL ADMINISTRATIVE DIVISION )            

Re DRAGICA MIRCESKI

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal              Senior Member M D Allen

Date  10 November 2004

Place                   Sydney

DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is AFFIRMED.

(Sgd)  M D ALLEN
  ..........................................
  Senior Member

CATCHWORDS

SOCIAL SECURITY:  Rejection of Applicant’s request to transfer from Wife’s Pension to Disability Support Pension after death of husband – whether Applicant’s impairment equates to 20 points under the Impairment Tables – whether conditions suffered by Applicant were fully documented and diagnosed pursuant to the Impairment Guide –decision under review affirmed.

Social Security Administration Act 1999 – s 12

Social Security Act 1991 – ss 94(1)

REASONS FOR DECISION

10 November 2004  Senior Member M D Allen

1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Respondent of a copy of the decision that was in fact made, the Respondent pursuant to sub‑section 43(2A) of the Administrative Appeals Tribunal Act1975 requested the Tribunal to furnish to the Respondent a statement in writing of the reasons of the Tribunal for its decision.

2.      The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

3.        The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal's decision.

I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:

Senior Member M D Allen

Signed:         (E.Pope)
           ..................................................................................………

Associate

Date of Hearing  10 November 2004

Date of Decision  10 November 2004

Counsel for Applicant                  Ms K. Sant

Solicitor for Applicant                   Legal Aid Commission of New South Wales

Advocate for Respondent           Mr G. Lozynsky, Centrelink Service Recovery Team

DRAFT DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N2003/1794
By  SENIOR MEMBER ALLEN
MIRCESKI -v- THE SECRETARY OF
FAMILY AND COMMUNITY SERVICES
SYDNEY, WEDNESDAY, 10 NOVEMBER 2004

MR ALLEN: Pursuant to an application made 4 November 2003, the applicant seeks review of a decision by a Social Security Appeals Tribunal made 31 October 2003 affirming a prior decision to reject the applicant's claim for Disability Support pension. The applicant's claim was made on 24 September 2002 when she requested that she be transferred from a Wife's pension to Disability Support pension following the death of her husband. Initially, some questions were raised regarding the applicability or otherwise of section 12 of the Social Security Administration Act 1999, which refers to the ability of the Secretary, the Department of Family and Community Services, to transfer the applicant from Wife's payment to Disability Support pension but as I see it section 12 has no application in these proceedings.

As I see it, if I were to determine that the applicant as at 24 September 2002, or the period of 13 weeks thereafter, was entitled to Disability Support pension, then in the terms of subsection 3 of the Act, the Secretary could have determined the transfers to occur. The claim, as I said, was for Disability Support pension and subsection 1 of section 94 of the Social Security Act 1991 reads inter alia:

The 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)a 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.

So far as these proceedings are concerned, my understanding is the respondent has conceded the applicant does have an inability to work, the sole question being whether her impairment equates to 20 points or more under the impairment tables.  As I said earlier, that assessment has to be made at the date of the claim, 24 September 2002, or

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during a period of 13 weeks thereafter. A period, incidentally, during which the applicant was resident in Macedonia. In dealing with impairment, the guide to impairment, which is to be found at document T22 of the documents provided to the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, states at paragraph 4 of the introduction:

For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised.

During these proceedings a question did arise as to whether the applicant who suffers from a bronchial condition should be assessed under table 1 or table 2 of the said guide.  Table 1 relates to a measurement of both cardiac and bronchial conditions using the system of exercise tolerance.  Table 2 however relates to physiological measurements.  It is said in the introduction to table 2, spirometry can be used when the medical officer feels it is more appropriate, for example where a history of exercise tolerance is difficult to attain and assess.  In this matter, both the applicant's expert, Dr Burns, an occupational physician and the examining medical practitioner from Health Services Australia, a Dr Matalani, who is also a consultant occupational physician, both used table 2. 

Although I accept the applicant's submissions that it would be open for me to look at table 1, it seems to me that table 1 would be confounded by the applicant's other conditions, in particular her varicose veins and it is significant that both occupational physicians involved in this matter determined that table 2 was the preferable table.  I believe, therefore, I should continue to make any assessments under table 2 and, adopting the ratings given by both occupational physicians, there is a nil impairment factor for chronic obstructive airways disease.  Generally speaking, it could be said that I accept the impairment ratings given by Dr Burns, the applicant's expert.  Where I differ is as follows.

The first matter is relating to the applicant's depression.  Dr Burns did not really assess this as he regarded it quite properly as outside his expertise.  The applicant's daughter, whom I found to be a very straightforward and exact witness, said that the applicant was on anti-depressant tablets and had been taking them since before she went overseas.  In the history taken by Dr Matalani, who assessed the applicant in the presence of an interpreter, he noted a history that she is not on any anti-depressants.  There was no evidence of ongoing anti-depressant treatment.  That is somewhat of a contradiction and it is difficult to ascertain from that the applicant's status as at 24 September 2004.

What we do have is a report from a psychologist in Macedonia that is at page 71 of the section 37 documents. Part of the history there is from an interview, where the applicant stated:

My husband died two months ago, I cannot come to terms with this fact.  I cannot accept this.  I feeled numbed.

The conclusion of the report was that there are indications for instability, constant fear, agoraphobia followed by insomnia, anxiety, depression, inability of social adjustment and avoidance of social contacts.  The thinking process slowed down, attention with decreased liveliness and increased tenacity aimed at her own subjective experiences.  Psychomobility altered, anxious guard, movements slowed down, inhibited, libido decreased which indicates further aggravation of the client's personality.  It is difficult

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however, to ascertain from that what specific psychiatric illness the applicant may indeed have been suffering from and what any particular treatment would be. 

Even now, if she is on anti-depressants, as Dr Burns agreed with me, any depression occurring from the death of her husband would have been, under the DSM, a reactive depression which should have abated after six months.  It does not appear that the applicant has ever had any psychiatric assessment for her condition, whatever it may be.  It seems to me that at this stage it is not a condition which can be said to have been fully documented, diagnosed, much less investigated, treated and stabilised.  She does have varicose veins and it is agreed that an assessment cannot be made in relation to that condition as she is due to have an operation to relieve the said condition. 

The real point of contention in this matter is the assessment by Dr Burns of a rating of 10 impairment points for osteoarthritis of her knees as opposed to a nil assessment, or indeed an inability to assess, by the respondent's medical practitioners. As I said earlier, what I must take into account is the assessment as at September 2004 and, although it has been said on numerous occasions, there is no onus of proof in these proceedings. There is still the fact that if by the end of day I am not satisfied as to any particular application, the status quo remains. The applicant has said that she has been diagnosed with osteoarthritis of the knees and that she was x-rayed in Macedonia for that condition. In document T8 page 70, the section 37 documents, there is some radiologist's report which refers to the cervical spine and the pelvis. There is no mention of the knees.

As was pointed out in the report by Dr Matalani, the report from Dr Zaharievski, in Macedonia, dated 25 December 2002, reports:

Stands and walks normally, joint movements not restricted.

The x-rays in relation to the knees have never been produced nor has any report been produced as to those conditions.  When the applicant first made her application to be transferred to Disability Support pension, a report was sought from Dr Selvaraj who has been the applicant's General Practitioner for some 20, at least, years.  The report from Dr Selvaraj is at document T5, commencing at page 12.  He deals with various conditions.  But what he says at page 26 is:

Clinical examination not done, date of last examination in the office on 29 September 2001.

The conditions to which he refers, and I draw the inference that these are taken from his clinical notes as her treating General Practitioner, the conditions are:  duodenal ulcer, diabetes myelitis, chronic asthma, rectocoele cystocoele, varicose veins, submandibular calculus and thyroglossa and a cardiovascular condition or respiratory condition for which he was unable to comment.  There is no spinal condition.  At T5, page 21, Limb Function, there is a box ticked as no.  Lower Limbs, there is no comment and, similarly, I might mention, no box is ticked in relation to psychiatric condition.  All that can be gleaned from that is that the last time Dr Selvaraj saw the applicant before she departed for Macedonia, she did not appear to be suffering any psychiatric condition or any impairment of the lower limbs.

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Dr Selvaraj again commented relating to the applicant on 7 April 2003.  He says:

She suffers from numerous medical problems.  To enumerate a few -

He then goes through a series of conditions including endogenous depression however he makes no mention of any lower limb osteoarthritis or any condition of the lower limbs.  Given the material before me and in the absence of any objective evidence such as x-rays etcetera, and in particular the failure of any medical practitioner in Macedonia to refer to the condition, I am not satisfied that as at the date of application or 13 weeks thereafter, it could be said that any condition in relation to the applicant's lower limbs was diagnosed, documented, investigated, treated or stabilised.  In those situations it is impossible of course to have an impairment rating. 

That being so, her impairment does not equate to 20 points on the scale and therefore the decision under review is affirmed.

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