Okusitino and Secretary, Department of Family and Community Servi Ces
[2003] AATA 742
•4 August 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 742
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/1992
GENERAL ADMINISTRATIVE DIVISION ) Re OFA OKUSITINO Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal REAR ADMIRAL A R HORTON AO Date4 August 2003
PlaceSydney
Decision The decision under review is affirmed.
[Sgd] Rear Admiral AR Horton, AO
Member
CATCHWORDS
SOCIAL SECURITY – eligibility for disability support pension – Applicant has physical, intellectual or psychiatric impairment – whether impairment is of 20 points or more under Impairment Tables – whether continuing inability to work – decision affirmed
Social Security Act 1991 – section 94, Schedule 1B
Social Security (Administration) Act 1999 – Schedule 2
REASONS FOR DECISION
4 August 2003 REAR ADMIRAL A R HORTON AO 1. Mr Ofa Okusitino (“the Applicant”) sought review of a decision of the Social Security Appeals Tribunal (“the SSAT”) on 9 December 2002 which affirmed a decision of an authorised review officer (“ARO”) on 6 November 2002, that he is not eligible for the disability support pension (“DSP”). That decision by the ARO had in turn affirmed the original decision by an authorised delegate of the Secretary, Department of Family and Community Services (“the Respondent”) on 28 February 2002 which determined that the Applicant was not eligible.
2. The Applicant lodged an application for review by the Administrative Appeals Tribunal (“the Tribunal”) on 31 December 2002. At a hearing before the Tribunal on 8 July 2003, the Applicant was self represented and gave oral evidence. Mr A Zhang, an advocate for Centrelink, appeared for the Respondent.
3. The Tribunal had before it the documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (“the T documents”). The Tribunal also took into evidence the following:
Exhibit A1 Report by Dr T Ecker of Ultrascan Radiology dated 16 October 2002
Exhibit A2 Report by Dr N Figol, General Practitioner, dated 17 March 2003
Exhibit A3 List of medical conditions prepared by the Applicant, undated
Exhibit A4Report by Dr K Simmons of Castlereagh Radiology dated 25 June 2003
ISSUES
4. The decision of the SSAT was to the effect that the Applicant meets the criteria in subsection 94(1)(a) of the Social Security Act1991 (“the Act”) which requires that he have a physical, intellectual or psychiatric work related impairment (as defined in the Introduction to the Impairment Tables at schedule 1B of the Act). The SSAT found such impairments to be osteoarthritis of the knees, a lumbar spine condition, asthma/rhinitis and constipation. However the SSAT found that the Applicant did not meet the criteria of 20 or more impairment points pursuant to subsection 94(1)(b) of the Act, and that being the case, did not further consider whether the Applicant had a continuing inability to work pursuant to subsection 94(1)(c) of the Act.
5. At the outset of the hearing, the Respondent conceded that the Applicant met subsection 94(1)(a) of the Act, this concession being based on an impairment rating that could be applied to a lumbar back condition. The issues before the Tribunal were therefore whether the Applicant met the criteria in subsections 94(1)(b) and (c) of the Act.
LEGISLATION
6. Section 94 of the Act defines the qualification criteria for the disability support pension, and states, relevantly:
"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.
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 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.
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 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:
...
"work" means work:
(a) that is for at least 30 hours per week at award wages or above; and
(b) ..."
7. Schedule 2, Part 2 of the Social Security (Administration) Act 1999 relevantly states:
"4. Start day - early claim
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 was 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 was 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."
8. Impairment is assessed against the work-related Impairment Tables at Schedule 1B of the Act. The introduction to the Tables states, relevantly:
"…
2. These tables are designed to assess impairment in relation to work and consist of system based tables that assign ratings in proportion to the severity of the impact of the medical conditions on normal function as they relate to work performance. These Tables are function based rather than diagnosis based. ...
3. These tables give particular emphasis to the loss of functional capacity that a person experiences in relation to work. ...
4. A rating is only to be assigned after a comprehensive history and examination. For a rating to be assigned, the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. ...
5. The condition must be considered to be permanent. ...
6. In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:
What treatment or rehabilitation has occurred;
Whether treatment is still continuing or is planned in the near future;
Whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years.
In this context, reasonable treatment is taken to be:
Treatment that is feasible and accessible, ie, available locally at a reasonable cost;
...
It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment ...In those cases where significant functional improvement is not expected...it may be reasonable to consider the condition stabilised.
...
8. In general, pain or fatigue should be assessed in terms of the underlying medical condition which causes it. ..."
BACKGROUND AND EVIDENCE
9. The Applicant was aged 38 when his claim was lodged on 17 January 2002. The relevant period in which the Applicant must become qualified is thus from 17 January 2002 until 16 April 2002. The Applicant was born in Tonga and arrived in Australia in 1979. He was educated to Higher School Certificate level. He was subsequently employed in packing, as a warehouse storeman and engaged in security duties. The Applicant’s most recent employment was as a meat processor in the food industry, his work being located close to his home at Hebersham. He ceased this work in 2001 and has not been employed since. He is currently in receipt of Newstart Allowance. On 28 February 2002, Centrelink stated that the Applicant could not be granted an exemption from the activity test (T11) because he was able to do suitable paid work for at least eight hours per week. The Applicant gave evidence that he has not had to comply with that direction, as appropriate medical certificates have been provided by his treating doctor..
10. In terms of personal interests, the Applicant says that he reads sometimes, but has a short attention span due to headaches. He indicated he pursues no other pastimes.11. The Applicant ceased work because of his various medical conditions, which were exacerbated by the environment in which he worked (as a meat processor in the food industry). Because of the nature of the industry, his work place was maintained at a cool temperature, which effected his breathing, and caused his nose to both block and run. He has been diagnosed by his treating doctor, Dr Figol, and two Health Services Australia (“HSA”) doctors (Dr N Rose and Dr S Kotulski) as having asthma and perennial/allergic rhinitis. His job entailed him standing all day, and he gave evidence that problems with his knees, and the associated pain, was a contributing factor to his having to give up work. The Applicant has not sought permanent work since leaving the meat processing position, but stated that he occasionally tries for part-time employment (the only example given being that of “sales”). Later in his evidence, the Applicant stated that he would like to return to part time work, and was thinking about it, but that it would interfere with his rehabilitation and medication.
12. The Applicant responded to the Tribunal in addressing each medical condition in turn. However, he emphasised the interrelationship between these conditions, and that his daily activities, which he variously described as rehabilitation and his medication, are to enable him to cope with the overall effect of these conditions. The Applicant considers his daily routine to be essential in order to maintain his well being. That daily routine, as he described it in cross examination, is to rise at about 0800 or 0900, and after breakfast, take medication before taking a short walk to a nearby park where he might remain for some two hours, breathing fresh air and exercising. Later, he generally visits a gymnasium at Rooty Hill, where he may cycle or swim five to ten 25 metre laps. He also lifts five kilogram weights. He was adamant that such a routine was essential to maintain his health, and such a regime was not possible if he had to work. But in any event, he could not work even for eight hours a week because of his medical condition.
13. The Applicant gave evidence that his asthma and rhinitis conditions were a major factor in having to cease work. He also stated that his work did not give him adequate time to take medication, wherein he needed to use a puffer. In the last two years, the Applicant has taken to using Seretide in lieu of Ventolin for his asthma; the Tribunal notes that Dr Figol still refers to Ventolin being taken as required in his most recent report of 17 March 2003 (Exhibit A2). The Applicant stated that breathing (and nasal) problems are also caused by exposure to vehicle fumes and being in the vicinity of people smoking. For his blocked nasal passages, the Applicant takes Panadol, rather than a nasal spray, three to four times daily, which he feels also assists with his arthritis condition. On examination, neither Dr Rose nor Dr Kotulski saw any significant symptoms, finding conditions clear, and assessing an impairment rating of Nil in both cases.
14. The Applicant underwent a left knee arthroscopy in 1992, and attended a physiotherapist for some time thereafter. He told the Tribunal that he now suffers from arthritis in both knees. He exercises and massages as necessary. The Applicant takes Naprosyn about once a week, Osteoeze on occasions, and as earlier noted, Panadol on a daily basis. He considers his knee problems of instability and pain to be significant in his perceived inability to work eight hours per week. Dr Figol has consistently reported pain and stiffness of the left knee. An x-ray report by Dr Lam of Castlereagh Radiology in January 1992 (T6) showed mild to moderate degenerative changes of the left knee. An MRI scan of this knee was carried out by Penrith Imaging in August 1992 (T20, p 120), with Dr Liew finding:
“There is a potentially unstable full thickness chondral flap tear in the posterior weightbearing portion of the medial femoral condyle. Mild chondral wear in the posterior weightbearing portion of the lateral femoral condyle. Significant grade 1 chondromalacia and mild chondral wear in the femoral trochlea and patellar apex. Moderate tricompartmental OA. Degenerative tear in the undersurface and free margin of the body and posterior horn of the lateral meniscus. Moderately thick medial patellar plica”
15. In his most recent report (Exhibit A2), Dr Figol noted “right kneepain” and a later x-ray report from Dr Simmons of Castlereagh Radiology (Exhibit A4) noted a “large joint effusion”.
16. On examination for the Respondent on 25 February 2002, Dr Rose diagnosed a left knee condition only, finding normal gait and an ability to squat, with no swelling and full movements (T7). He assessed a nil Impairment rating under Table 4 (T7, p 62). Dr Kotulski reached the same conclusion on 5 June 2002, noting “he walks easily and has muscle strengthening exercises he performs with light weights. … He describes some discomfort on stair climbing but is able to manage and able to squat. He has some grating of the knees” (T15, p 107). Dr Kotulski also diagnosed a left knee condition only.
17. The Applicant also referred to pain in both shoulders, generally arising when he is sitting for too long, that is more than about two hours, but depending on the type of seat. Dr Figol referred to this condition in his most recent report of 17 March 2003 (Exhibit A2), making no observation other than to note that x-rays and ultrasound had been carried out in October 2002 by Ultrascan Radiology (Exhibit A1). Dr Ecker concluded at that time that there are “minor changes present at each AC joint …could represent early degenerative change but synovitis …..probably contributes to the findings” (Exhibit A1). Neither Dr Rose (T7) nor Dr Kotulski (T15) diagnosed any relevant condition.
18. The Applicant also referred to bowel problems, which may require frequent toilet visits and for which he takes Synatep, which can be procured without prescription. Neither Dr Figol (T13) nor Dr Kotulski (T15) refer to this condition; Dr Rose notes frequent episodes of constipation and hemorrhoids, which would not impact significantly on work (T7).
19. The remaining condition before the Tribunal is that of thoraco-lumbar spine (lower back), an impairment accepted by the Respondent and accorded a rating of 5 points under table 5.2 by Dr Kotulski (T15) and the SSAT (T2). Dr Figol did not diagnose this condition in his initial treating doctor’s report (“TDR”), and nor did Dr Rose. Dr Figol diagnoses this condition in his second TDR of 20 March 2002 (T13), but merely notes without elaboration “he has back pain” in his more recent report at Exhibit A2. There are no radiological reports available to the Tribunal. Whilst according an assessment of 5 points on the basis of “intermittent pain and up to one quarter of loss of range of movement”, Dr Kotulski observed that Mr Okusitino “sits comfortably, rises, transfers and walks easily” (T15, p107).
20. Somewhat surprisingly, the Applicant did not address this condition until prompted to do so by the Tribunal. He stated that his lower back “played up” when sitting, or when in an awkward position. He variously described being in continuous pain, which he could minimise by lying on the floor, and being in pain when rising or walking too long. At times, the pain radiates to his left leg. His movements when sleeping generate pain which wakes him up; his back becomes painful in trains or if driving for too long.
21. The Applicant has been seeing Dr Figol since about 1982. He stated that he now sees him once or twice a month, but usually for prescriptions. He stated that Dr Figol had not indicated to him when he could return to work. In summarising his situation, the Applicant stressed that all his medical conditions were interrelated, and that his rehabilitation program was essential to cope with this interrelationship. He took some specific medication, but some, such as Panadol, had an ameliorating effect on a number of conditions. Whilst part time work might be possible at some time in the future, that was not the case now. He was not interested in training, as he does not know what would suit him, but in any event, that would interfere with his remedial program.
22. The Respondent’s representative submitted by way of final submissions that the Applicant could return to appropriate full-time work, drawing on the third TDR by Dr Figol of 9 September 2002 (T19), wherein he considered a return to usual occupation was likely in six to 12 months, on the conclusions of Doctors Rose and Kotulski, and on the evidence before the Tribunal. He also submitted that the Applicant could be retrained, drawing on the conclusions of Dr Kotulski and the evidence before the Tribunal, and noting the age of the Applicant and his English language skills. The Respondent considered the Applicant’s substantial exercise regime was evidence that a return to full-time work could be achieved.
FINDINGS AND DECISION
23. The Tribunal finds in accordance with the Impairment Tables in Schedule 1B of the Act, that the Applicant has impairments of the thoraco-lumbar spine, osteoarthritis and chondromalacia of the left knee, asthma/rhinitis and constipation. In the absence of adequate diagnoses and treatment, the Tribunal does not accept the conditions of shoulder pain and right knee impairment.
24. On 6 November 2002, the ARO determined an impairment rating for the lumbar spine condition of 5 points (T23), based on the report by Dr Kotulski, This assessment was agreed by the SSAT (T2). Table 5.2 of Schedule 1B of the Act relevantly states:
“…
NIL Normal or nearly normal range of movement
FIVE Loss of one-quarter of normal range of movement
TEN Loss of one-quarter of normal range of movement as well as back pain or referred pain:
with many physical activities; and
with standing for about 30 minutes; and
with sitting or driving for about 60 minutes.
…”
25. The evidence of the Applicant clearly indicated that he has only limited restrictions on his physical activities, and on his ability to stand and drive, and hence he cannot meet the ten point criteria. Indeed, the only reference to any limitations as to range of movement is that by Dr Kotulski who notes “almost full ROM” but gives a rating of 5 points (T15). In the view of the Tribunal, “almost full” must equate to “nearly normal”, which would warrant nil points. Further, there is no radiological evidence to suggest a significant limitation in movement. However, given that the Respondent has conceded an impairment rating of 5 points under Table 5.2, the Tribunal so finds.
26. The conditions of osteoarthritis and chrondromalacia of the left knee have been widely diagnosed and well supported by radiological examination. The Applicant gave evidence that his left knee was a significant factor in his decision to cease work in 2001, and in preventing any resumption of work. Notwithstanding this, he is able to exercise in the local park and in the gymnasium, and can walk a reasonable distance. Table 4 relates to functions of the lower limbs and relevantly states:
“NIL Walks without difficulty on a variety of different terrains and at varying speeds for distances of more than 500 metres
TEN Demonstrable loss of strength, mobility, stability, balance, coordination and/or sensation such as to cause moderate interference with walking and one or more of the following: climbing, squatting, sitting or kneeling or
Pain or claudication restricts walking to 250-500 metres or less, at a slow to moderate pace (4km/h). Can walk further after resting.
…”
27. The evidence of the Applicant is such that he does not meet the criteria of 10 points. He can, and does, walk daily, and as he emphasised, he exercises to strength, mobility and coordination. He can sit for lengthy periods, and Doctors Rose and Kotulski observed him to squat. The Tribunal notes the evidence of the Applicant that his treating doctor has advised that in time his knee will get worse, but in the period under consideration, the Tribunal can only accord an impairment rating of nil points.
28. The remaining conditions of asthma/rhinitis and constipation are controlled by medication. Table 1 is relevant to the former, and the activity level evidenced by the Applicant is such that a nil rating is appropriate. Nonetheless, the conditions are such as to make some work environments inappropriate. Constipation can be considered under Table 20 (Miscellaneous). The Applicant takes non prescription medication for this condition, and whilst it may be irritating and inconvenient, there is no evidence before the Tribunal to suggest that it contributed significantly to him ceasing work in 2001, or that it would prevent him from returning to the work force.
29. The Tribunal finds that the Applicant has a combined impairment rating under the Impairment Tables in Schedule 1B of the Act of 5 points and hence he does not meet the criteria in sub-section 94(1)(b) which requires an impairment rating of 20 points or more. That being the case, it is not necessary for the Tribunal to make a decision in respect of whether the Applicant has a continuing inability to work under sub-section 94(1)(c). The Tribunal therefore makes no decision, but observes that on examination, both HSA doctors considered him fit to undertake light full-time work, and Dr Figol opined in September 2002 that a return to his usual occupation was likely in six to twelve months (T19). Further, the Applicant maintains a reasonably active daily exercise program, and it is appropriate to question why that program cannot be condensed in time, to enable a return to full-time work.
30. The decision under review, that being by the Social Security Appeals Tribunal dated 9 December 2003 that the Applicant is not eligible for the disability support pension, is affirmed.
I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of REAR ADMIRAL A R HORTON AO
Signed: L Bonouvrie
AssociateDate/s of Hearing 8 July 2003
Date of Decision 4 August 2003
Representative for the Applicant Self-represented
Advocate for the Respondent Mr A Zhang
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