Najdovski and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1775

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1775

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V 200600890

GENERAL  ADMINISTRATIVE DIVISION		)
Re		DONE NAJDOVSKI

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Senior Member B.H. Pascoe

Date18 September 2007  

PlaceMelbourne

Decision The Tribunal affirms the decision under review.  

(sgd) Mr B. H. Pascoe

Senior Member

SOCIAL SECURITY – Disability Support Pension – impairment of 20 points – ability to work.

Social Security Act 1991

REASONS FOR DECISION

Senior Member B.H. Pascoe        

1.      This is an application for review of a decision of the respondent to reject a claim for Disability Support Pension (DSP) by the applicant.  The applicant, Mr D. Najdovski, lodged his claim on 8 December 2005.  The claim was rejected by decision of 7 March 2006 affirmed by an authorised review officer on 12 April 2006 and affirmed by Social Security Appeals Tribunal (SSAT) on 21 August 2006.

2.      At the hearing Mr Najdovski was unrepresented.  The respondent was represented by Mr T. Noonan, an advocate with Centrelink.  Mr Najdovski gave evidence with the assistance of an interpreter in the Macedonian language.

3.      Mr Najdovski was born on 5 September 1944 and thus was 62 years of age at the date of the hearing.  In his application for DSP he listed his disabilities as heart condition, lumbrosacral spine, left foot calcification and neck and shoulder problems with discs.  In a report from his treating general practitioner, Dr V. Velkov, dated 10 November 2005, his conditions were listed as hypertension, coronary artery occlusion of five years standing and supraspinatus disorder also of five years standing.  He was said to have had an angioplasty done at St. Vincent’s Hospital with ongoing symptoms of shortness of breath on exertion.  In relation to the supra spinatus, his symptoms were said to be shoulder pain being treated by physiotherapy.

4.      Mr Najdovski was employed at Feltex Carpets Pty Ltd from 11 October 1979 until 28 October 2005 when he was made redundant due to the closure of the department in which he was working.  According to his former employer he was working full time on restricted duties during his last three year of employment with average working hours of 40 hours per week.  In a letter of 25 July 2007 to Centrelink, the former employer stated that the restricted duties were due to the following conditions:

• Painful (L) Heel

• Painful lower back and Hip

• Tennis Elbow

• Shoulder Tendonitis

• Spinal deg. disease

5. Qualification for DSP is governed by s 94 of the Social Security Act 1991.  The requirements are that:

1.the person has a physical, intellectual or psychiatric impairment as defined under the Act; and

2.the impairment is of 20 points or more under the Impairment Tables; and

3.the impairment has been investigated, treated and stabilised and is likely to continue for at least two years; and

4.the impairment is of itself sufficient to prevent the person from doing any work of at least 30 hours per week within the next two years, or;

5.the impairment is of itself sufficient to prevent the person undertaking educational, recreational or on the job training during the next two years or, if it dos not prevent him, the retraining is unlikely because of the impairment to enable him to do any work within the next two years.

Under s 4(2) the qualification period is the date of the application or within 13 weeks from that date.  Consequently the Tribunal is required to find whether Mr Najdovski was so qualified in the period from 8 December 2005 to 9 March 2006.

6.      Mr Najdovski was examined by Dr N. Rose a medical adviser with Health Services Australia Ltd.  In his report of 24 January 2006, Dr Rose noted that Mr Najdovski had stated that he had no shortness of breath with walking, but at times feels tight with his breathing going up stairs.  Dr Rose rated the symptoms of heart disease as mild and the condition as stable.  He allocated nil points under Table 1 of the Impairment Tables.  He assigned five points under Table 5.1 for one quarter loss of right rotation in the neck.  He assigned nil points to the calcaneal spurs which were said to be relieved by orthotics and did not restrict walking.  Nil points were assigned also to the lower back condition which was said to be untreated and not impeding activity.  As a result the claim was rejected.

7.      In a review of the decision by the SSAT the Tribunal accepted the evidence of Mr Najdovski that he was troubled by both shortness of breath and chest tightness after walking for 30 minutes or light gardening and assigned 30 points under Table 1 in relation to his heart condition.  In all other respects the Tribunal accepted the ratings of Dr Rose.  However, the Tribunal found that he was capable of working.

8.      In a report to Mr Najdovski’s general practitioner on 19 December 2005, Dr D. Irons, his treating cardiologist, said that Mr Najdovski has generally remained well since last seen four months ago.  He had experienced palpitations about one month prior but such palpitations were infrequent and less than once per month.  Dr Irons suggested that underlying anxiety and stress could be the cause of these symptoms.  In a further report of 7 June 2006, Dr Irons said that Mr Najdovski seems reasonably well since last seen six months ago.  Again palpitations lasting only a few minutes were occurring less than once per month.  In a report dated 16 February 2007 Professor Y.L. Lim a cardiologist noted that Mr Najdovski had a severe angina episode precipitating an overnight admission to Western Hospital.  He noted his condition as angina and coronary heart disease treated by stenting on three occasions. 

9.      Ms L. Natividad, a rehabilitation consultant, interviewed Mr Najdovski on 4 May 2007 and provided a report dated 7 May 2007.  From the history given by Mr Najdovski and access to all medical reports, Ms Nativdad recommended a rating of 15 points for the heart condition, 5 points for neck and shoulder pain and nil points for other conditions.  She believed that he had demonstrated an ability to sustain full time work performing suitable light duties in jobs such as bench assembler or light process worker.

10.     It is relevant to note that in the clinical notes of Mr Najdovski general practitioner, Dr P. Andrianakis, he noted on 22 November 2005, 20 December 2005 and 11 May 2006 fit for duty with modification. On the other hand, Dr Andrianakis provided several reports between 28 September 2006 and 1 August 2007 insisting that Mr Najdovski was totally and permanently incapacitated for work and entitled to DSP.  It has to be said that Dr Andriankis appeared to be acting more as an advocate than a provider of medical opinion.

11.     Cases such as these are inevitably difficult where the evidence of the applicant and reports of treating doctors are taken at a Tribunal hearing on 13 August 2007 to determine the applicant’s qualification for DSP between 8 December 2005 and 9 March 2006, some 17 to 20 months prior.  The only impairment rating done during that assessment period was by Dr Rose when this assessment is considered in the light of reports by Dr Irons of December 2005 and June 2006 it would seem that it is unlikely that a rating of more than 15 points could be assigned to his heart condition and that figure is likely to be generous.  No evidence has been produced to produce a greater rating than 5 points for his other conditions.  It was noted that, while Mr Najdovski complained of neck, shoulder and lower back problems he appeared to have no difficulty in being seated in the witness box for some two hours with frequent head turning towards the interpreter and back to the Tribunal. 

12.     The more critical factor in this application is the ability to work.  Only six weeks prior to his application, Mr Najdovski was working full time and ceased only because of redundancy from closure of his work place.  Up to 11 May 2006, Dr Andrianakis was noting him as fit for duty with modification.  An assessment by Ms Natividad in May 2007 found him able to sustain full time work.

13. While it may have been possible for Mr Najdovski to be rated at 20 impairment points, although that is doubtful during the qualification period, I am satisfied that he did not satisfy the s 94 requirement of being prevented by his impairment from working at least 30 hours per week. It is possible that his conditions have deteriorated since March 2006 and he believes it has. In such case it will be necessary for him to submit a new claim.

14.In view of the forgoing the decision under review should be affirmed.

I certify that the 14 fourteen preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member, Mr Bruce Pascoe

Signed: (sgd) Lauren Spragg
  Associate

Date of Hearing  13 August 2007
Date of Decision  18 September 2007
Advocate for the Applicant          Self-represented 

Advocate for the Respondent       Mr T. Noonan, Centrelink Legal Services Branch