Petrevski and Department of Family and Community Services
[2001] AATA 883
•24 October 2001
DECISION AND REASONS FOR DECISION [2001] AATA 883
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/742
GENERAL ADMINISTRATIVE DIVISION )
Re SIME PETREVSKI
Applicant
And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Rear Admiral A R Horton AO, Member
Date24 October 2001
PlaceSydney
Decision The decision under review is affirmed.
[SGD] Rear Admiral A R Horton AO
Member
CATCHWORDS
SOCIAL SECURITY – claim for disability support pension – Applicant ceased work as a process worker in 1999 – whether Applicant has physical, intellectual or psychiatric impairment – whether impairment is 20 points or more vide Schedule 1B – ability to undertake work – ability to undertake educational or vocational training
Social Security Act 1991 – sections 94(1), (2), (3), (4), (5), 100(3)
Social Security Legislation Amendment Act (No1) 1995
REASONS FOR DECISION
Rear Admiral A R Horton AO, Member
This is an application for review of a decision of the Social Security Appeals Tribunal ("the SSAT") made on 6 April 2000 that affirmed a decision of a delegate of the Secretary, Department of Family and Community Services ("the Respondent") on 8 February 2000 that Sime Petrevski ("the Applicant") was not eligible for disability support pension ("DSP"). The earlier decision of the Respondent was affirmed by an Authorised Review Officer on 2 March 2000.
The Applicant lodged an application for review by the Administrative Appeals Tribunal ("the Tribunal") on 15 May 2000. That application was dismissed on the non appearance of the Applicant before the Tribunal on 18 June 2001, but was reinstated on 13 August 2001 on the evidence that the Applicant had not been notified in a timely manner of the date of the Tribunal hearing. The hearing subsequently took place on 26 September 2001. The Applicant was self-represented. Mr George Lozynsky, an advocate from the Advocacy and Administrative Law Team at Centrelink, appeared for the Respondent.
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 Description Date
A1 Radiology report by Dr J Lim 15 August 2000
A2 Report by Dr N Bhatt, General Practitioner 1 September 2000
A3 Report by Dr R F Clark, Orthopaedic Surgeon 26 September 2000
A4 Audiogram and report by Mr G Rathbone 7 September 2000
A5 Report by Dr M Marinkovich, General Practitioner 9 March 2001
R1 Report by Dr N Bhatt to the Applicant's solicitor 8 June 1993
The Applicant gave oral evidence to the Tribunal, assisted by an interpreter fluent in the Macedonian language.
issues before the tribunal and legislationThe Applicant applied for DSP on 11 October 1999, claiming the disability of back pain. The accompanying Treating Doctor's Report ("TDR") completed by Dr P Drummond on 7 October 1999 (T5) diagnosed lumbar spondylosis, and assessed the Applicant as likely to return to full time work in six to twelve months. A further TDR completed by Dr N Bhatt in December 1999 (T9), was apparently misplaced and not processed. A third TDR completed by Dr N Bhatt on 10 January 2000 (T11), diagnosed conditions of lumbar spondylosis and industrial deafness. The Applicant was subsequently examined, for the Respondent, by Dr Z Anjum of Health Services Australia, his report of 4 February 2000 being at T13.
At the outset, the Respondent advised that, following a more recent claim, the Applicant has become eligible for DSP. The issues before the Tribunal are:
i.whether the Applicant, Mr Sime Petrevski, had a physical, intellectual or psychiatric impairment assessed at 20 points or more under the Impairment Tables in Schedule 1B of the Social Security Act 1991 ("the Act"), on 11 October 1999, or within a period of three months thereafter; and
ii.if so, whether he had a continuing inability to work because of that impairment, pursuant to the conditions in subsections 94(2), (3), (4) and (5) of the Act.
Section 94 of the Act states, relevantly:
"94 Qualification for disability support pension
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;
…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 two 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 2b(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:
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."Subsection 100(3) of the Act is also relevant, and states:
"100(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 was lodged, qualified for a 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."
Impairment is assessed against the work related Impairment Tables in Schedule 1B of the Act. The introduction to the Tables states, relevantly:
"1. …The Tables represent an empirically agreed set of criteria for assessing the severity of functional limitations for work related tasks and do not take into account the broader impact of a functional impairment in a societal sense. For this reason, no specific adjustments are made for age and gender. ...
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. ...
…8. In general, pain or fatigue should be assessed in terms of the underlying medical condition which causes it. ..."
applicant's evidence and facts
The Applicant, aged 61, migrated to Australia in 1969 aged 29. He commenced work with Stevens (Repco) and then moved to Corinthian Doors where his job entailed the sanding and assembling of doors and door frames. In June 1976 he commenced employment with Containers Limited, remaining with that firm for twenty two and half years until his retirement in late 1999. His initial work was as a cleaner, but for the most part he was a process worker or labourer, working on a metal cutting guillotine. In evidence to the Tribunal, the Applicant stated that he ceased work as his back condition, and adverse effects resulting from that condition, became such that he could no longer meet the physical demands of his job. Whilst he gave evidence that his retirement coincided with the redeployment of his section, he emphasised that his reason for retirement at that stage was entirely due to his inability to perform the work required of him due to his medical condition.
In response to questions by the Respondent, the Applicant initially stated that he had started experiencing pain about a year before ceasing work. The Respondent asked him to comment on the conflicting opinions given by Dr Marinkovich in his report of 9 March 2001 (Exhibit A5), wherein he suggests from documentation and oral history, that the Applicant has suffered a "back injury, with a disc lesion, since 1989", and the opinion given by Dr Bhatt, General Practitioner, in his report of 8 June 1993 (Exhibit R1), wherein he notes that he first saw the Applicant in November 1992 and records a "history of pain on left side of lower back i.e. lumbo [sic] sacral region for two weeks prior to date of initial consultation". In response, the Applicant further clarified the time scales relevant to his medical circumstances. He did not dispute the opinions of either doctor, noting that he sought medical treatment on occasions as pain increased. The Applicant gave evidence that he continued working, and pushed himself to cope with the requirements of his employers; he further believed himself to be young enough to keep working and needed the wages to meet his financial commitments, including mortgage payments. He stated that in 1998, that is about one year before retirement, his back pain became more severe, to the point, in 1999, where he was unable to work. The Applicant confirmed that whilst he received a redundancy payment on retirement, that payment was insufficient in sum to justify a decision to retire for that reason.
In his application for a pension, at question 5 (T3 folio 48), the Applicant indicated "No" to the question "did you leave because of your illness or disability?". The Applicant stated in evidence that this was not the case and that the entry may have been made in error by his daughter when assisting him to complete the form.
When asked whether he could have undertaken light work (at Containers Limited) had that been offered, the Applicant replied "yes" but also stated that the level of pain being experienced was too strong to allow him to undertake any work. He saw his health as being the most important matter in his life and accordingly preferred to remain at home. He has not sought assistance since his retirement to obtain work, and his 'yes' in response to question 6 in his application for pension (T3, folio 48) was made on the assumption that his medical condition would improve to the extent that he could return to the workforce.
The Applicant described his back pain as 'frequent', and sometimes intense. It also radiates to his leg. He stated that he lies down to rest to relieve the pain and that the pain is present every morning. Acupuncture in the past had not helped; he does not receive physiotherapy treatment, but relies on his wife massaging his back and applying cream or ointments. The Applicant stated that he was taking daily medication by tablet for his back pain, limited to two hundred grams each day because of side effects. He could not recall the name of his medication. The Applicant stated that he normally wears a surgical brace, but was not doing so at the hearing. He is most reticent to undergo surgery, in that he is concerned that it may not be a success.
As regards industrial deafness, the Applicant stated that occasionally he cannot hear properly, a condition exacerbated when suffering back pain. He finds hearing aids irritating, as well as distorting the overall 'hearing picture'.
The Applicant described his daily life as being a combination of resting and short walks. He has no requirement to assist with housework, but helps his wife shop. He travels little, but can use public transport, albeit with difficulty on steps. The Applicant seldom drives and has little involvement in local community or social activities.
medical evidenceThe Tribunal considers the most relevant TDR to be that completed by Dr Bhatt of 10 January 2000 (T11) who reports that he saw the Applicant five or six times in the previous twelve months. This report provides a paucity of detail however, other than to note two diagnoses (lumbar spondylosis and industrial deafness), that treatment (for lumbar spondylosis) is by analgesics, that hearing loss is progressive and that the Applicant 'cannot work because of back pain'. He assesses that the Applicant can 'never' return to either his previous job or full time work. His ability to perform any work over the next two years is not assessed. In the earlier TDR by Dr Bhatt of 13 December 1999 (T9), which as earlier noted was apparently not processed, a diagnosis of right inguinal hernia was referred to, clinical features being pain, the condition having been operated on in 1999.
Dr Anjum of Health Services Australia assesses the Applicant's medical conditions as chronic backache and industrial deafness, in a report dated 4 February 2000 (T13). He agrees that the Applicant ceased work because of his medical condition (backache) but considers him fit for full time work (30 hours per week) such as light stores or benchwork. The history he has obtained from the Applicant notes a lengthy period off work in the past to receive physiotherapy and rehabilitation. He notes the x-ray of the spine shows spondylitic changes, and records his examination as showing:
"tilted posture with normal gait and restriction of ¼ of normal ROM at LS spine. The SLRs were restricted to 60 degrees due to backache but no sciatic pain. His (R) sacroiliac joint was tender'.
Based on these findings Dr Anjum accords an impairment rating of 10 points. He does not consider the Applicant's industrial deafness warrants any impairment points from Table 12, based on his clinical observation at the examination and in the absence of any audiometry report.
In summary, Dr Anjum assesses a total impairment rating of 10 points. He considers the Applicant to be unfit for work in his previous occupation, but fit for light sedentary work, such work not to be in noisy or dangerous environments.
At Exhibit A3, Dr Clark, Orthopaedic Surgeon, finds evidence of progressive degenerative changes in the lumbar spine, with stenosis leading to the back pain and right sided sciatica. He did not consider active intervention to be required at that time.
Dr Drummond, Orthopaedic Surgeon, and the originator of the first TDR, reports on the Applicant on 5 October 1999 (T5), at the time the claim was lodged. He notes the Applicant has lumbar spondylosis and that he has fitted him with a lumbar belt. He does not think any (further) investigation is required.
The only other medical report available to the Tribunal, as far as the matter of back pain is concerned, is that of Dr Marinkovich (Exhibit A5) dated 9 March 2001, which states relevantly:
"Based on medical documentation, history and my findings Mr Petrevski is suffering from the following:
Back injury, with a disc lesion, since 1989
Pain in both knees, since 1991
Gastric ulcer, operated in 1995
RIH, operated in 1994
PTSD, since 1991
Taking into consideration the multiple medical problems, physical and mental Mr Petrevski will need continuous medical supervision.
I expect further deterioration of his medical condition. Therefore he is in an urgent need of a Disability Pension allowance. I strongly support such an application on medical and humanitarian grounds."The Tribunal observes that whilst the Applicant referred to a gastric ulcer in the context of limitations on back pain medication, and an earlier operation for a hernia, no medical evidence is before the Tribunal in respect of pain in both knees, gastric ulcer, hernia or PTSD.
In respect of the Applicant's hearing condition, the report by Mr Rathbone dated 7 September 2000 (Exhibit A4), confirms a "moderate to severe, higher frequency loss, with slight tinnitus in both ears".
submissionsThe Applicant indicated to the Tribunal that the matters and issues he felt were relevant to his application for DSP had been raised during the course of the hearing. He emphasised that his retirement from the workforce occurred solely because of his medical condition, that is his back pain, and other pain that radiated from that source. He submitted it was a coincidence that he was offered a redundancy package at that time; he wished to continue working until a more appropriate age for normal retirement, but was prevented from doing so by his condition. The Applicant firmly believed that until his medical condition improved, he was not in a position to return to any full time work. He further emphasised that in taking the oath, he undertook to tell the truth, and had done so.
The Respondent accepted that the Applicant met the conditions of subsection 94(1)(a) of the Act in that he had the physical impairments of backache and industrial deafness. The Respondent submitted that other medical conditions as referred to in evidence by the Applicant, such as hernia and stomach ulcer, were not part of the claim for pension, nor was evidence given as to any impact they might have had on the ability of the Applicant to continue in the workforce or to return to the workforce. The Respondent submitted that the report by Dr Marinkovich (Exhibit A5), which identified a hernia and stomach ulcer, and the additional conditions of pain in the knees and PTSD, should be given no weight. The Tribunal notes that the report by Dr Marinkovich refers to these conditions without elaboration or supporting documentation.
The Respondent further submitted that the criteria in subsection 94(1)(b) had not been met, in that the accepted conditions do not warrant the required total impairment rating of 20 points. The Respondent submitted that an impairment rating of 10 points under Table 5.2 was appropriate for back pain, and that an impairment rating of 5 points under Table 12 for hearing loss was also acceptable. In submitting an assessment of an impairment rating for backache, the Respondent relied on the evidence of the Applicant himself, of Dr Anjum in his assessment of the Applicant's condition (T13, folio 79), that of Dr Drummond in his report of 5 October 1999 (T4, folio 51) where he saw no need for an investigation and in the initial TDR (by Dr Drummond) dated 7 October 1999 (T5, folio 55) where he indicated the Applicant could return to the workforce within six to twelve months.
On the available medical evidence, the Respondent conceded an impairment rating for hearing of five points against Table 12. The Tribunal notes that at the time of the SSAT decision (6 April 2000), there was 'no medical evidence as to the extent ….of loss' and the condition could therefore not be rated. Since that time, medical evidence consists only of the audiometric report of 7 September 2000 (Exhibit A4).
In summary, the Respondent submitted that the Applicant's combined impairment rating was less than 20 points, and hence subsection 94(1)(b) of the Act has not been met. The Respondent further contended that the Applicant did not meet subsection 94(1)(c) in that he did not have a continuing inability to work within two years. This contention was based on the Applicant's own statement in his claim, that he sought assistance to find employment (T3, folio 48), the assessment by Dr Drummond (T5, folio 55) and the report of Dr Anjum of Health Services Australia (T13).
analysis of evidence and findingsThe Tribunal accords with the submission by the Respondent that the conditions of backache and industrial deafness are the only conditions relevant to this claim. Other conditions noted by Dr Marinkovich in particular and, in two cases (hernia and stomach ulcers), mentioned in the course of the hearing, were not part of the claim. These conditions have no supporting medical documentation and there was no evidence given as to their impact on the Applicant's ability to continue in employment. The Tribunal notes that Dr Anjum described the condition of backache as 'chronic'.
In the course of consideration of the Applicant's claim, three Treating Doctor's Reports were submitted. The first TDR by Dr Drummond dated 7 October 1999 (T5), reflected an assessment of an early return to full time work and, accordingly, Centrelink informally rejected the claim for DSP. The second TDR, by Dr Bhatt dated 13 December 1999, was misplaced and hence not actioned (referred at T10, folio 67). The third TDR, again provided by Dr Bhatt, was provided on 10 January 2000. In the view of the Tribunal, this latter document should have been the primary TDR used, in conjunction with other relevant medical documentation and the report for the Respondent by Dr Anjum, from Health Services Australia, for the assessment of the claim. It is not evident from the T documents that this was the case. Further, the Respondent's submission in this matter appears to place more weight on the original TDR by Dr Drummond, which the Tribunal considers to be inappropriate. The Respondent also places weight on the Applicant's responses in his claim, wherein the box asking "did you leave because of your illness/disability" is marked "No" and the question as to whether he "would like help to find a job" is marked "Yes". The Tribunal notes these responses, but places more weight on the Applicant's oral responses as noted in paragraphs 12 and 13.
As noted earlier in this decision, the final TDR by Dr Bhatt provides insufficient explanation of the medical condition of the Applicant. Whilst the clinical features for the diagnosed lumbar spondylosis are described as "severe episodes of lower back pain", there is no indication of their frequency or their impact on the Applicant's lifestyle or ability to return to the workforce. Part B, relating to work ability, has not been completed, and the comment that the Applicant can 'never' return to work, without qualification, leaves the Tribunal with insufficient supporting detail from the Applicant's treating doctor. Comment as to 'progressive hearing loss', without quantification of the extent of that loss, or benefit of a specialist audiometry report, militated against the condition being properly reviewed at the primary decision point.
Specialist medical evidence in regard to the Applicant's back condition is limited. Based presumably on the radiological report at Exhibit A1 and examination, Dr Clark makes no observation as to the ability, or otherwise, of the Applicant to return to the workforce in any capacity (Exhibit A3). Dr Marinkovich (Exhibit A5) supports the application for DSP, but does so in the context of multiple medical problems, which, with the exception of the back injury, are not matters under consideration in this claim, nor, as previously noted, has evidence been provided as to their effect on the Applicant.
The report by Dr Anjum for the Respondent is quite specific in assessing a "restriction of ¼ of movement with pain on most activities", difficulty in lifting and bending, no specific problems in sitting and standing and the capability of walking in excess of 500 metres. Dr Anjum accorded an impairment rating of 10 points under Table 5.2 and accorded nil points for industrial deafness on the basis that no audiometry results were available and that the Applicant responded to 'normally spoken conversation'. The doctor concluded that the Applicant "is unfit for work in his usual position as a labourer but is considered fit for alternative light sedentary type of occupations" (T13).
The Tribunal acknowledges and takes account of the Applicant's evidence that he is not able to work in any capacity. However, on the medical evidence before the Tribunal, impairment rating of 10 points for backache under Table 5.2 is considered appropriate. In Schedule 1B of the Act, the criteria for 10 points is defined as:
"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
or
Loss of half of normal range of movement."
and this accords with the limitations on the Applicant through his disability.
The Tribunal further assesses a hearing loss of 5 points under Table 12. The Tribunal also observes that the Applicant appeared to have no hearing difficulty during the Tribunal hearing. The combined impairment rating of 15 points is not sufficient to meet the criteria under section 94(1)(b) of the Act.
A finding in this regard having been made, it is not necessary for the Tribunal to comment on the Applicant's inability to work as required under section 94(1)(c). But for the record, the Tribunal notes that this issue was addressed in the medical reports. As already indicated, medical opinion was divided. Dr Anjum considered the Applicant fit to work in light sedentary occupations and the Applicant's treating doctor considered he could never return to any form of full time work. Opinion from two orthopaedic surgeons on this issue was minimal. As regards vocational training or rehabilitation, Dr Bhatt saw this as providing no benefit, whilst Dr Anjum saw it as unnecessary. The Applicant was adamant that he had ceased work because of his back pain and was unable to undertake any work – but if he was able, he would have continued in the workforce. However, the Tribunal makes no finding in respect of section 94(1)(c).
conclusionFor the reasons given above, in respect of combined impairment rating under subsection 94(1)(b) of the Act, the Tribunal concludes that the Applicant was not eligible for DSP on 11 October 1999, nor in the following three month period pursuant to section 100(3) of the Act.
determinationThe decision under review is therefore 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, MemberSigned: .....................................................................................
AssociateDates of Hearing 26 September 2001
Date of Decision 24 October 2001
Solicitor for Applicant Self represented
Advocate for the Respondent Mr G Lozynsky
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