Petrovski and Secretary, Department of Family and Community Services

[2002] AATA 811

DECISION AND REASONS FOR DECISION [2002] AATA 811

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V02/429

GENERAL ADMINISTRATIVE DIVISION          )          
           Re      PETRE PETROVSKI         
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES  
  Respondent

DECISION

Tribunal       Mr J. Handley, Senior Member    

Date13 September 2002

PlaceMelbourne

Decision      The decision under review is affirmed.   
  ..........Sgd. Mr J. Handley .............
  Senior Member
CATCHWORDS
Social Security - Disability Support Pension - kidney and bladder cancer - surgery - applicant in remission - whether an impairment attracting 20 impairment points - decision affirmed.

REASONS FOR DECISION

13 September 2002           Mr J. Handley, Senior Member                

1. The applicant applies to review a decision of the Social Security Appeals Tribunal ("SSAT") made on 4 April 2002.  The SSAT then decided to affirm a decision previously made by an Authorised Review Officer ("ARO") of Centrelink on 23 October 2001.  The decision then made was to reject the applicant's claim for Disability Support Pension ("DSP").

2. The appeal was heard on 26 August 2002.  Mr Petrovski appeared without representation, but with the assistance of a Macedonian interpreter.  Ms D'Cunha appeared on behalf of the respondent.

3. Entitlement to DSP is found in Part 2.3 of the Social Security Act 1991 ("the Act") at s.94. The two basic qualifications, which must be satisfied, for DSP are-

1. the applicant must have physical or intellectual impairment

2. the applicant must have an impairment of 20 points under the Impairment Tables which are attached to the Act; and

3. the applicant must have a continuing inability to work.
   (The remaining qualifying criteria of age & residency are not in issue).

1. The circumstances giving rise to this application may be briefly summarised as follows-

2. Mr Petrovski was employed as a storeman by Denso Manufacturing Pty Ltd in Altona, from October 1983.  In April 2001, he was diagnosed with having a cancer of his right kidney and it was eventually removed.  On 29 June 2001, the employer ceased to trade.  Mr Petrovski did not return to work after the surgery in April 2001 and has not worked since.  In May 2002, another cancer was located in his bladder.  Surgery was again undertaken to remove it.  At the present time, Mr Petrovski has income from what he described as a superannuation payment.  Additionally, his wife also works and earns an income.

3. Mr Petrovski said at the present time he is "extremely tired".  He said that when he walks he tires easily after ½ of a kilometre.  He said that the site of the kidney surgery is tender and itchy.  He has pain on twisting, turning or bending.  He has attempted gardening and cutting lawns at home since the surgery, but suffered discomfort at night and was unable to sleep lying on his right side. 

4. The bladder surgery initially caused discomfort and urinary frequency, but those symptoms have now settled.  Mr Petrovski is to return for cystoscopy in September 2002. 

5. In answer to questions from me, Mr Petrovski said that he drives to a local café or shopping centre on a number of occasions per week to visit and to talk with friends. He returns home at either about midday or early afternoon and spends the rest of his day with his children when they return from school and work.  He does not perform any work inside or outside the house.  He said that prior to the kidney surgery, he undertook gardening, lawn mowing, some painting and house repairs.  Apart from the occasion where he attempted lawn mowing (refer earlier), he does not now perform any work at all.  He said that he is "scared" of "doing further damage to (his) kidney".  He acknowledged that his right kidney has been totally removed and said that his doctor told him that he is not a "full person".  He therefore believes that he has to be careful. 

6. When Denso Manufacturing employed by Mr Petrovski, he said that his work required him to carry boxes of small parts to a conveyor belt, where other persons assembled items.  He said that the boxes varied in weight between 5 to 20 kilos.  Mr Petrovski said that he believed that he would be unable to perform work of that type because he is unable to lift or carry.  Also, he has not attempted any work or activity because he is scared. 

7. The applicant also said that he suffered pain around his right side at the site of the kidney surgery if he walks or sits or drives for extended periods. 

8. In answer to questions from Ms D'Cunha, the applicant acknowledged that he drove to the Tribunal from St. Albans (a duration of 20-25 minutes). 
   Conclusion & Reasons For Decision

9. Initially, the respondent found that the applicant did not attract any impairment points under the impairment tables.  During the pre-hearing preparation of this appeal, the respondent conceded 10 impairments points.  This was due to additional medical information made available by Dr Irlicht, the applicants treating Doctor and Doctor Harries, a consultant medico legal practitioner. 

10. Under Table 20, being the applicable table, the criteria as against a rating attracting 10 impairment points is-

    "mild to moderate symptoms which are irritating or unpleasant but which rarely prevent completion of any activity.  Symptoms may cause loss of efficiency in daily activities but minimal interference performing or persisting with work related tasks.  There is minimal effect/impact on work attendance.  ….. Potentially life-threatening condition which is currently not interfering with daily activities eg. malignancy in remission with a poor prognosis.  …."

11. The criteria against an impairment rating of 20 is-

    "more severe symptoms with a decreased ability/efficiency to carry out many every day activities.  Most daily activities can be completed with some difficulty.  Symptoms may prevent or lead to avoidance of some daily tasks and simple tasks will usually aggravate symptoms of fatigue.  Symptoms cause significant interference with ability to perform or persist with work related tasks.  Symptoms may cause prolonged absences from work."

12. A significant feature of the applicant's presentation at the hearing was his apparent withdrawal from most day-to-day activity.  He has not worked since the surgery in April 2001 and it appears that suitably qualified persons, have not assessed his ability or capacity to return to work.  Having regard to the frequent expressions by him of being "scared", I am of the belief that the applicant would benefit from appropriate vocational or rehabilitation assistance.  The applicant had a long, uninterrupted work history with the same employer, until it unfortunately ceased to trade.  The applicant is a relatively young man and I believe that it would be a tragedy for him to remain unemployed or fearful of returning to employment without appropriate encouragement and assistance.  I understand assistance from suitably qualified persons is available from his local Centrelink office, where he might also take advantage of Macedonian speaking officers. 

13. On the one hand, there is a real difficulty in assessing the applicant under the appropriate tables because of his resistance or reluctance to undertake activity other than driving to his local shop on a number of occasions per week to meet with friends.  He does nothing else inside or outside of his home. 

14. Whilst I am satisfied the applicant does have a physical impairment, I cannot however find that he satisfies the criteria as against an impairment rating of 20 points.  His symptoms - whilst I acknowledge are unpleasant - could not on the evidence be regarded as being "severe" which would precipitate a "decreased ability/ efficiency to carry out many every day activities".  Additionally, it cannot be said on the evidence that the "symptoms may prevent or lead to avoidance of some daily tasks and simple tasks will usually aggravate symptoms of fatigue".  The applicant stated that he is reluctant to engage in most activities, because of his fear, not because of "symptoms".  Additionally, it is difficult to comprehend how "simple tasks" would aggravate symptoms of fatigue when Mr Petrovski engages in almost no activity other than bathing, clothing, and driving to a local coffee shop. 

15. I am of the view, having heard from Mr Petrovski, having read the medical reports from Dr Irlicht, Dr Harries and Dr Paulson, that the applicant is more appropriately assessed as against a rating of 10 impairment points.  It should be added, in conclusion, that I have discounted the contents of the report of Dr Paulson, as the history of the applicant's treatment subsequent to that report of December 2001 established his prognosis to be incorrect.

16. Having found that the applicant does not have an impairment of 20 points, it follows that the applicant does not qualify for DSP.  Because all the qualifying criteria for this pension must be satisfied, I have not considered the applicant's capacity for employment and whether he has a "continuing inability to work".

17. I would recommend, in the circumstances, that Mr Petrovski take advantage of the persons appropriately qualified at his local Centrelink office, who will hopefully encourage him to undertake activity, regain his self confidence and hopefully return to either employment or be engaged in activity which is rewarding and satisfying. 

    I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member.

    Signed:         Katherine Navarro...................................
      Associate

    Date/s of Hearing  26 August 2002
    Date of Decision  13 September 2002
    Counsel for the Applicant        Self represented and Macedonian Interpreter
    Solicitor for the Applicant         Nil
    Counsel for the Respondent    Mrs P D'Cunha, Departmental Advocate
    Solicitor for the Respondent    Nil