Nemas and Secretary, Department of Family and Community Services

[2004] AATA 1168

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1168

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/548

GENERAL ADMINISTRATIVE DIVISION		)
Re		APOSTOLOS NEMAS

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal REAR ADMIRAL A R HORTON AO   

Date9 November 2004

PlaceSydney

Decision The decision under review is affirmed.  

..............................................

REAR ADMIRAL A R HORTON AO  

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – application of section 94 of the Social Security Act 1991 – physical and psychiatric impairments – assessment of combined impairment rating at 15 points – inability to work or undertake educational or vocational training not considered – Applicant not eligible for disability support pension – decision affirmed

Social Security Act 1991 – sections 94, 100, Schedule 1B

Re Elrich and Secretary, Department of Family and Community Services [2000] AATA 456

Re Avramoski and Secretary, Department of Family and Community Services [2004] AATA 516

REASONS FOR DECISION

9 November 2004 REAR ADMIRAL A R HORTON AO        

1.      This is an application to review a decision of the Social Security Appeals Tribunal (”SSAT”) dated 7 April 2004 that affirmed a decision of an Authorised Review Officer (“ARO”) dated 9 February 2004 to reject a claim for Disability Support Pension (“DSP”)  by Mr Apostolos Nemas (“the Applicant”).  

2.      At a hearing of the Administrative Appeals Tribunal (“the Tribunal”) on 25 October 2004, Mr Nemas was self-represented.  Ms Jane Green, an advocate from the Centrelink Service Recovery Team, represented the Secretary, Department of Family and Community Services (“the Respondent”).  Mrs Panayota Algerinos, an interpreter fluent in the Greek language, assisted the Tribunal. 

3. The Tribunal took into evidence the documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (“T documents”), parts K and L of Mr Nemas’s claim form for DSP (Exhibit A1), the Respondent’s Statement of Facts and Contentions (Exhibit R1), and letters from Dr S Aravanis, general practitioner, dated 11 October 2004 and 22 October 2004 (Exhibits R1 and R2 respectively).

LEGISLATION      

4. The relevant legislation is section 94 and 100 of the Social Security Act 1991 (“the Act”). Section 94 of the Act sets out the criteria which must be satisfied for an applicant to be eligible for a DSP, relevantly stating:

"94.     Qualification for disability support pension

(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;

...

(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 from 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.

(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.

(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.

(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...."

5. Section 100 of the Act (effective at the time of the original decision), deals with the commencement day for disability support pension and relevantly states:

100. Early claim
...

(3)       If:

(a)       a person lodges a claim for a disability support pension; and

(b)       the person is not, on the day on which the claim is lodged, qualified for  disability support pension;

and

(c)       the person becomes qualified for a disability support pension sometime during the period of 3 months that starts immediately after the day on which the claim is lodged;

the person’s provisional commencement day is the first day on which the person is qualified for the pension and is an Australian resident and in Australia."

6.      The Respondent’s position is that in accordance with the provisions of subsection 100(3), the ‘relevant period’ in this matter is from 14 October 2003, when the claim was lodged, until 13 January 2004, and the Tribunal is in agreement. 

7. The ‘impairment rating’ is determined by applying the impairment tables found at Schedule 1B of the Act.

BACKGROUND

8.      Mr Nemas lodged his claim for DSP on 14 October 2003.   At that time, he was awaiting review by this Tribunal of an earlier claim for DSP, which had been rejected by an ARO, and in turn, the SSAT.   In the event, the tribunal affirmed the decision on 30 June 2004.  Under the previous claim, impairments in respect of lower back pain and hearing were considered.  The claim now before this Tribunal for review is in respect of those conditions and the conditions of depression and dry eyes, as diagnosed by Dr  Aravanis in a Treating Doctors Report (“TDR”) dated 1 October 2003.

9.      On 12 December 2003, Dr R Au of Health Services Australia (“HSA”) assessed Mr Nemas as having an impairment rating of 15 points, and considered him fit to  undertake retraining and return to full time light work over 6 months.

10.     On 9 February 2004, an ARO assessed Mr Nemas’s  combined impairment rating at 20 points and considered him fit to return to full time light work. On 7 April 2004, the SSAT found for a combined impairment rating of 15 points and also considered Mr Nemas fit to undertake unskilled light work.

ISSUES

11.     The issues before the Tribunal are:

(a)Whether Mr Nemas suffers from a physical, intellectual or psychiatric impairment; and if so

(b)Whether the impairment is of 20 points or more under the Impairment Tables set out at Schedule 1B of the Act; and if so

(c)Whether  Mr Nemas has a continuing inability to work.

EVIDENCE

12.     Mr Nemas was born in Greece in 1958.  He migrated to Australia in 1968, having completed primary school and two years of secondary education.  He has had no further formal education.  From 1968 he worked as a carpenter/form worker, predominantly in the Northern Territory and Queensland.  In 1990 he visited Greece, remaining in that country for the next three years.  He did not work in that period, as he was looking after his elderly father.

13.     His evidence was that on return to Sydney, he was unable to find work. as he lacked experience, local references, and had poor English speaking skills. Mr Nemas stated that he was granted Newstart Allowance in 1997, but the Tribunal assumes he was in receipt of a social security payment prior to that date as he undertook six months training in the construction industry, as apparently arranged by the Department of Social Security, in 1996.  

14.     Mr Nemas owns a unit property at Belmore having moved there quite recently because of the noise he experienced at his previous home.  In referring to his psychiatric disorder in her letter of 11 October 2004, Dr Aravanis indicates that Mr Nemas has moved twice because of noise.  Suffice that Mr Nemas informed the Tribunal that he has sold the present home and will be moving in early November 2004.  Mr Nemas is not married and lives with his 85 year old mother.  Since April 2004, he has been in receipt of Carer Payment and Carer Allowance in lieu of Newstart Allowance.

15.     Mr Nemas identified his medical conditions as back pain, depression and hearing loss, the former being the most severe.  When pressed, he also referred to a condition of glaucoma or dry eyes, requiring eye-drops and ointment each morning, these being initially provided by the Eye Hospital and subsequently by prescription from Dr Aravanis.  

16.     Mr Nemas told the Tribunal that his back pain originated in about 2000, the cause being undetermined ( in his initial report of 6 December 2002, Dr J Bentivolgio, orthopaedic surgeon, notes that the back pain developed in March/April 2002, as does a report by the Physiotherapy Department at Canterbury Hospital).  Mr Nemas described his pain and restrictions in movement as being very bad in the morning for some two to three hours. He said he experiences pain in his lower back which is referred to both legs, particularly in the right down to the calf.  He stated that the pain could be so bad that at times he could not “wash his face”.  His legs get numb “a lot”.  He also feels at times that his bones are touching in the back.

17.     When his pain is at its worst, he finds it necessary to lie on the floor.  Pain limits him to 5 to 10 minutes standing and about a one kilometre walk.  He gets tired when seated and “usually has to move”.  The Tribunal did not observe any particular discomfort whilst seated throughout the three hour hearing.  For his pain, Mr Nemas takes Celebrex on one or two occasions each week, and four Panamax tablets daily.  He has received physiotherapy at Canterbury Hospital, a report dated 26 March 2004 being relevant.  That report does not identify the period or frequency of treatment; it indicates that Mr Nemas should continue a program outside the hospital environment. .  In evidence Mr Nemas said the physiotherapy exercise helped ease the pain.

18.     In his report dated 6 December 2002, Dr Bentivoglio noted that Mr Nemas had half range of normal movement in his low back region, decreased muscle power in the left lower limb, a decrease in the L5/S1 disc space (X-ray) and a large and central L5/S1 disc protrusion (CT scan).  An earlier radiological report by Dr Phillips on 22 August reports a slight narrowing of the L5/S1 disc space and mild reactive change.  A later report by Dr Bentivoglio dated 10 April 2003 refers to a “massive disc prolapse at the L5/S1 level”.  In both reports he states that with surgical intervention Mr Nemas has a good chance of full recovery in the leg and partial recovery as regards back symptoms. Alternatively Mr Nemas could live with the symptoms and in time, nerve root compression might lessen. 

19.     Dr G Rosenberg, orthopaedic surgeon, saw Mr Nemas on 15 March 2004 and formed a view that surgical procedure would involve discectomy supplemented by fusion.  Seemingly regardless of whether such an operation took place, he opined that work in the foreseeable future, if indeed ever, did not seem likely.   

20.     In a report dated 5 September 2003 Dr P Bentivoglio, neurosurgeon, stated that the CT scan showed a large central disc prolapse, but no neurological abnormality, and a small to moderate central disc bulge at the L5/S1 level, but with no neurological compromise.  Contrary to the other specialists, he did not see operative intervention as appropriate at his time.  He opined that “he is probably unable to work, but I do anticipate that sometime in the future, which maybe many months, he should be able to work.”   Mr Nemas does not want to undergo surgical intervention at this time, and undoubtedly he has concerns that such a procedure may not be successful.      

21.     Dr G Takas, consultant psychiatrist, diagnosed Mr Nemas with depression in his report of 16 April 2003 describing it as “severe Adjustment Disorder with depressed and anxious mood”.   He suggested that psychiatric help would be required.  Dr Takas reported that Mr Nemas has developed severe insomnia, irritability, anhedonia and anergia arising from his lower lumber spine pathology.  Initially Dr Takas prescribed Endep medication but, in a report of 29 March 2004 and following appointments on a “regular basis”, he notes that Mr Nemas has also been taking Efexor-XR 150 mg daily, “with very little response”.  That report is the last available from Dr Takas, as he now lives in Greece;  Mr Nemas stated that he last saw Dr Takas in May 2004. 

22.     Mr Nemas has not made arrangements to see another psychiatrist, because his general practitioner has been unable to refer him to one that speaks Greek.  Further, he does not believe he could meet the costs.  In a Treating doctors report accompanying the DSP claim, which postdates the diagnosis by Dr Takas, Dr Aravanis identifies an inability to concentrate, a reduction in cognitive functions and drowsiness as symptoms of Mr Nemas’s psychiatric condition.   In a response to a Centrelink request for psychiatric assessment, Dr Aravanis reported that based primarily on the fact that “noises” had led to Mr Nemas selling two homes, his impairment rating was in the order of 10 to 20 points (Exhibit 2). At Exhibit R3 Dr Aravanis states that the impairments alone prevented Mr Nemas working or undertaking educational or vocational training.  .     

23.     Mr Nemas stated that he takes one Endep pill each evening about one hour before retiring at about midnight.  The Tribunal is unclear as to whether he continues to take the prescribed Efexor and Mr Nemas himself was of the view that new prescriptions could only be written by a specialist.  He stated he wakes up at about 0730 or 0800, but when asked by the Tribunal, stated that he has disturbed sleep.  His depression gives him “lots of problems”, and he cannot do “what I used to do”.  His hearing loss also affects his sleeping patterns. 

24.     Mr Nemas suffers from hearing loss .  The most recent evaluation is that of Dr J Scoppa, ENT surgeon, who assessed a binaural loss of 34.14%.  The left ear has a significant loss of 88%.  Mr Nemas does not wear a hearing aid and feels that such a device would not be of much assistance.  Dr Scoppa ascribes his hearing deficiencies as evidence of industrial deafness, and possibly from injuries sustained in an accident in 1994, the details of which are not before the Tribunal.   Mr Nemas spoke of what he thought was tinnitus in the left ear, and dizziness and headaches at times.  Aside from the report by Dr Scoppa, and an earlier evaluation in 1994 by Mr S Stylis, which makes no mention of an accident, there are no other medical reports in respect of hearing loss available to the Tribunal.     

25.     As regards his quality of life, Mr Nemas stated that he was able to care for himself albeit he had problems in the morning after waking, as previously addressed. He is able to prepare meals and do the washing and housework (there is no outside help) and shopping.  He has no car and relies on public transport.  He visits his clubs once or twice a week; the Alexander the Great Greek Club where he plays backgammon, a snooker Club (although he does not play snooker) and Marrickville RSL Club.  He has friends in the Greek community, but stated that he visits the RSL club on his own. 

26.     Mr Nemas confirmed that the “noises” referred to in the letter by Dr Aravanis, relate to the location of his property on a busy street, and the noise emanated from traffic and pedestrians.   

27.     In respect of his opinion as to whether he could return to any work or undertake further training, his response was “no”.  He considers all his medical conditions, but in particular his back condition, would prevent him doing so.  He understood that doctors variously had opinions as to his work capability, but he did not consider that Dr Au of HSA who carried out an assessment for the Respondent could voice an opinion based on one short examination.  Further, and notwithstanding that he had taken an English language course in the past, his English was inadequate.   His hearing deficiencies also militate against returning to the work force.

28. The Medical Assessment Report by Dr Au referred to above describes Mr Nemas’s symptoms of depression as moderate and recommends an impairment rating of 10 points under Table 6 of the Impairment Tables at Schedule 1B of the Act. He assessed the loss of lumbar movement under Table 5.2 as one quarter and therefore recommended a 5 point impairment rating. Dr Au did not rate hearing loss, nor did he refer to such a condition. He considered Mr Nemas unfit for heavy work but fit for retraining and full-time work with a graduated return over six months.

ANALYSIS AND DECISION  

29.     Based on the medical reports before the Tribunal and the evidence of Mr Nemas and observing that the period in question within which eligibility for the DSP is to be assessed commenced on 10 October 2003, the Respondent submitted that an assessment of 10 points for lumbar back pain under Table 5.2 was appropriate.  This differs from the recommendation by Dr Au, but takes account of referred pain to the legs.   Mr Nemas expressed reservations that this three month eligibility period should not preclude consideration of all medical documents available to the Tribunal.   The Tribunal informed him, as it had on an earlier occasion, that all documents before the Tribunal would be considered in that they assist in understanding the particular medical conditions extant in the eligibility period.  This follows the reasoning in Elrich and Secretary, Department of Family and Community Services [2000] AATA 456 and Avramoski and Secretary, Department of Family and Community Services [2004] AATA 516 and in earlier decisions.

30.     The Tribunal accords with the view of the Respondent that 10 impairment points is appropriate under Table 5.2.  A loss of one quarter of movement is accepted on the evidence and a rating of 10 points takes proper account of referred pain, of which there is adequate evidence, and physical limitations in standing and sitting.  Indeed, Mr Nemas demonstrated a capacity to sit for a significantly longer period than described in the criteria for 10 points under Table 5.2 (about 60 minutes).  A higher rating of 20 points would not be appropriate; such a rating requires a greater loss of movement than is the case, and greater restrictions on physical activities, standing and sitting than is evident.

31.     Table 12 of the Impairment Tables refers to the hearing function. The most recent assessment is that by Dr Scoppa, and the assessed percentage loss of binaural hearing relates specifically to a rating of 5 points.  Whilst Mr Nemas spoke of tinnitus and dizziness, there is no medical evidence to support a higher rating, or a rating under Table 20, which can be used for miscellaneous conditions. 

32.     In respect of the condition of glaucoma, the Respondent submitted that this could not be accepted in the absence of any medical documentation other than a reference to dry eyes by Dr Aravanis in the TDR of 1 October 2003.  In her recent report of 11 October 2004 no mention was made of an eye condition.  The Tribunal accepts the evidence of Mr Nemas that he uses eye drops and ointments, but in the absence of any definitive medical diagnosis of the condition, no rating can be given.

33.     In the decisions to date in this matter, the assessment of the psychiatric condition has been the most contentious.  Dr Takas variously has described it as “severe depression and anxiety”.  Dr Aravanis diagnosed Mr Nemas with “depression” and considers that it will impact on his ability to function for more than 24 months.Dr Au assessed the condition as having moderate symptoms, appropriate for a rating of 10 points under Table 6, this being a recommendation that was accepted by the ARO in reviewing the original decision.  On the other hand, the SSAT considered the criteria for a 10 point impairment rating had not been satisfied.  The Respondent submitted that the reports by Dr Takas, and in particular his most recent report of 29 March 2004, provided little assistance as to the rating that might be given for the condition.  The Respondent further submitted that the reports by Dr Aravanis in October 2004 were made in the absence of a specialist psychiatrist and should be treated accordingly; the suggested rating of 10 to 20 impairment points for depression was based on “noises” with a possible suggestion of hallucinations,  the origin of those “noises”  being satisfactorily explained by Mr Nemas.    

34. The Tribunal has carefully considered the reports by Dr Takas as they provide evidence of a psychiatrist condition as observed by him over a period of about one year; that is from April 2003 until his departure for Greece in about May 2004, and the medication prescribed. (In regard to the latter, there is some doubt as to just what medication Mr Nemas is now taking given that he is no longer seeing a psychiatrist). Apart from relating the condition of depression to the lower back pathology of Mr Nemas, the initial assessment by Dr Takas provides little indication on the effect this has on the day to day life of Mr Nemas and his ability to function. Further reports, including the most recent of 29 March 2004 are in a similar vein, and they do little to assist the Tribunal in assessing an impairment rating based on the requirements of the Impairment Tables at Schedule 1B.

35.     The introduction to the Impairment Tables requires that the effect of an impairment be considered in the context of an ability to work.  The criterion addresses “severity of functional limitations for work related tasks”.   Whilst Mr Nemas stated to the Tribunal that he could not work, nor undertake educational or vocational training, he emphasised that his back condition was the dominant reason.  He made no particular reference to depressive conditions that would preclude his participation in the work force.  (He did say that his hearing loss and his lack of English skills would preclude him working, but there was no evidence to that affect in the case of the former during the hearing, and the latter is not a relevant matter under the legislation).

36.     The evidence of Mr Nemas is that he cares adequately for himself, and capably looks after the requirements of his home and caring duties in respect of his mother.  He has a circle of acquaintances, socialises at his clubs on occasions during the week and can travel by public transport.  There is no evidence that a depressive condition has other than a minor effect on his life and his ability to function.  The criterion for 10 impairment points under Table 6 of the Impairment Tables refers to moderate and regular symptoms and “generally functioning with some difficulty”.  That is not the situation as presented.  The criteria for Nil impairment points refers to mild but regular symptoms which tend to cause subjective distress, which on most occasions can be overcome, and “minimal interference with function in every day situations”, and the Tribunal considers that criteria reflects the situation in respect of the psychiatric condition of Mr Nemas.   

37. Thus whilst Mr Nemas meets the eligibility criteria under subsection 94(1)(a) in that he has physical and psychiatrist impairments, he does not meet the eligibility criteria under section 94(1)(b) as his combined impairment rating is 15 points.

38. Section 94(1) of the Act requires that all subsections, that is (a), (b) and (c), must be met. As subsection (b) in respect of total impairment points has not been met, the Tribunal does not formally consider subsection (c) as to whether Mr Nemas has a continuing inability to work or to undertake appropriate training during the “next two years”.   The Tribunal makes the observation, however, that whilst Mr Nemas was quite adamant that he could not work or undertake training, the reasons for his position were somewhat difficult to determine, given that his inability to do so, for legislative purposes, must be based on impairments alone, and that other factors, which in his thinking have relevance, are excluded.

39.     The decision under review is affirmed. 

I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of REAR ADMIRAL A R HORTON AO 

Signed:             A. Krilis
   Associate

Date/s of Hearing  25 October 2004
Date of Decision  9 November 2004
Representative for the Applicant    Self Represented
Advocate for the Respondent        Ms Jane Green