Psaros and Secretary, Department of Family and Community Services

DECISION AND REASONS FOR DECISION [2002] AATA 464

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/466

GENERAL ADMINISTRATIVE DIVISION          )
           Re:     PETER PSAROS
  Applicant
           And:   SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal MS N BELL

Date17 June 2002
PlaceSydney

Decision The Tribunal affirms the decision under review.

[SGD] MS N BELL
Member

CATCHWORDS
SOCIAL SECURITY- disability support pension- not in dispute whether the Applicant has a physical impairment- whether the Applicant has an impairment rating of 20 points or more under the Impairment Tables- whether the Applicant has a continuing inability to work

Social Security Act 1991- sections 94(1), (2) and (5)

REASONS FOR DECISION

MS N BELL

This is an application by Mr Peter Psaros ("the Applicant") for review of the decision of the Social Security Appeals Tribunal ("the SSAT") on 14 March 2001 to affirm the decision of a Centrelink delegate of the Secretary, Department of Family and Community Services ("the Respondent") on 28 March 2000 to cancel the Applicant's disability support pension. The Respondent's decision had been affirmed by an authorised review officer on 10 August 2000.
The Applicant gave oral evidence to the Tribunal. He was accompanied by Ms Vicki Tsamardos who also gave oral evidence to the Tribunal. The Respondent was represented by Ms Susan Mantaring. The following documentary evidence was before the Tribunal:
Exhibit         Description Date
TD1 Documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975 being T1-T36, pp1-121
A1      Dr Voutos medical report 20 May 2002
A2      Dr Dickson medical report 20 January 1993
R1      Respondent's Statement of Facts and Contentions     13 May 2002
R2      Dr Voutos medical report    7 May 2000
R3      Dr Roy medical report        22 January 2002
R4      Dr Roy medical report        6 February 1995
R5      Dr Roy medical report        13 March 2001
R6      Medical Assessment Report        28 May 2002

Background

The Applicant was granted disability support pension in December 1992. Reviews of the Applicant's entitlement were conducted by the Respondent in May 1996 and in February 1998. On both occasions he was found to be entitled to continue to receive disability support pension. A further review was conducted by the Respondent in late 1999/early 2000. He was examined by Dr Ying, medical officer of Health Services Australia, in December 1999 who concluded that the Applicant attracted an impairment rating of 10 points under table 4 of the Impairment Tables in Schedule 1B to the Social Security Act 1991 for his right knee and right ankle pain and 0 points under table 1 of the Impairment Tables for his asymptomatic aortic valve replacements condition. Dr Ying considered the Applicant fit to do light work. Following this examination, the Applicant's disability support pension was cancelled.
Issues and legislation
The Respondent does not dispute that the Applicant has a physical impairment. The issues to be considered in this application are therefore:

whether the Applicant has an impairment rating of 20 points or more under the Impairment tables in Schedule 1B to the Social Security Act 1991; and, if so,
whether the Applicant has a continuing inability to work.

The provisions of the Social Security Act 1991 ("the Act") relevant to this application are sections 94 (1), (2) and (5).
Applicant's evidence
The Applicant told the Tribunal that at the time his disability support pension was cancelled, two years ago, he suffered from pain and swelling in his right knee and right ankle, a heart condition, pain in his left shoulder and pain in the right side of the middle area of his back. He said the condition that most interfered with him working was the pain and swelling in his knee. He said he cannot, and could not two years ago, squat, kneel, walk other than slowly or stand for long. He said he can only walk for about ten minutes, after which time he has to treat his knee with ice and elevate it. The Tribunal noted that, in his evidence to the SSAT in January 2001, the Applicant said he can walk slowly for 30 minutes. He said he takes Panadeine Forte for the pain and Voltarin for inflammation. He said he stopped playing soccer about five years ago and has not played competitive soccer since the 1980's.
The Applicant said that up until three or four years ago he had been seeing Dr Gregory, general practitioner. However, he has been unable to locate him since then. He said he then attended a local medical centre, seeing various doctors, until he began to see Dr Voutos in about October 2000.
In relation to his heart, the Applicant said that he has palpitations and shortness of breath. He said that Dr Roy, his cardiologist, who he saw in January or February of this year, said that he will need another operation at some stage.
In relation to his left shoulder, the Applicant said that it is very bad now because of a recent fall. However, he said it is an old injury that he already had some trouble with two years ago, it having "popped out" twice before then. He said that at that time he was unable to raise his arm all the way up and could not lift heavy things, but could carry a few kilos and had no trouble with his grip. When asked why he did not raise the trouble with his shoulder when he was examined by the Health Services Australia medical officer in December 1999, he said that he did raise it.
The Applicant said that he has stiffness in his fingers, particularly in the morning when they are cold, but has no trouble doing up buttons, tying his shoelaces or using a knife and fork. He also said he has no trouble with his toes or with his neck.
The Applicant said that during an average day he will get up early and have coffee lying on the couch with his foot elevated. He said he will get up to go to the toilet and to eat but will spend the rest of the day lying down and sleeping intermittently. He said he might go out, to the shop or to meet a friend for coffee about two or three times per week. He said the walk to the shop is about 100 metres.
The Applicant said that his friend, Ms Tsamardos, does his shopping for him. The Applicant does not take public transport and has not done so for some years. He said he can drive for about twenty minutes but drives less and less now. He does not cook or clean. The Applicant said that if he does too much he has bad pain afterwards.
Finally, the Applicant said that if he does not do a lot and does not push himself, he is alright.
Ms Tsamardos' evidence
Ms Tsamardos told the Tribunal that the Applicant sleeps during the day for two or three hours at a time. She also said that doing almost anything makes him very tired and he avoids walking, kneeling and bending. She said his sleep at night is very disturbed and this may be part of the reason why he sleeps so much during the day.
Other evidence
Dr Gregory, the Applicant's original general practitioner, in his report dated 11 November 1992 (T7), mentioned only the Applicant's knee, ankle and heart condition. No mention was made of the Applicant's shoulder, back, fingers, toes or neck.
The reports of Dr R Roy dated 25 September 1990 (T4) and 7 July 1993 (T11) indicate that the Applicant had an aortic valvotomy in 1978 and his aortic valve was replaced with a homograft valve in 1993. In his report of 10 July 2000 (T25), Dr Roy said the Applicant was fit, well and asymptomatic, with an echocardiagram showing normal left ventricular size and function and normal function of the aortic homograft valve. He said the Applicant was not physically restricted in any way. This report followed a review on 19 September 1999. This conclusion was confirmed by Dr Roy in his report dated 8 February 2001 (T36) in which he said the Applicant is capable of full time work of any sort. Dr Roy again confirmed this conclusion in his report of 13 March 2001 (Exhibit R5) in which he said there is no reason for the Applicant's symptoms and he is fit to work. Finally, Dr Roy confirmed his conclusion again in his report of 22 January 2002 (Exhibit R3) in which he said the Applicant's testing was normal, there had been no change in the last 12 months and he has no restrictions except that he needs antibiotics for any teeth extractions.
Dr Voutos, in his report dated 7 May 2002 (Exhibit R2), said he had been seeing the Applicant since October 2000. He said the Applicant suffers from severe widespread joint pains and referred to a bone scan on 22 April 2002 which he says shows inflammation of the right knee and ankle, the fingers of both hands, the cervical spine and big toes. Dr Voutos said the Applicant cannot do any type of work. Dr Voutos expanded on this report in his further report of 20 May 2002. He said the Applicant cannot walk for extended periods, kneel or climb stairs comfortably. He said the Applicant's right knee locks and referred to a recent fall downstairs. He also said the Applicant has chronic pain in his hands due to arthritis of the small joints, a reduced grip and poor dexterity together with bilateral ankle pain due to traumatic arthritis. Dr Voutos assessed the Applicant under the Impairment Tables as having a 10 point impairment rating for his left non dominant upper limb under table 3 and a
5 point impairment rating for his right dominant arm. Dr Voutos also assessed the Applicant's lower limb disability at 10 points under table 4. Dr Voutos also said the Applicant has chronic pain requiring regular strong analgesics (Panadeine Forte) and frequent rest periods during the day.
Consideration
As the decision under review concerns the Applicant's qualification to receive disability support pension at the time the Respondent cancelled his pension, the Tribunal's concern is with the Applicant's conditions, and qualification for pension, at that time and during the period of three months following the date of cancellation.
Section 94 of the Social Security Act 1991 ("the Act") provides 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.

Meaning of continuing inability
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:
"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."

It is not in dispute that the Applicant suffers from a physical impairment. He therefore satisfies the requirement in section 94(1)(a) of the Act. In order to satisfy the requirement in section 94(1)(b) of the Act the Applicant's physical conditions must attract a rating of twenty points or more under the Impairment Tables.
The Tribunal is satisfied that, at the time of the decision to cancel his disability support pension, the Applicant suffered from pain in his right knee and ankle. This is not in dispute. On the basis of the Applicant's evidence, the Tribunal is satisfied that the Applicant experienced difficulty kneeling and squatting. The Tribunal notes the Applicant's evidence at the hearing that he can only walk for 10 minutes. However, his evidence to the SSAT, closer in time to the date of the decision to cancel, was that he could walk slowly for 30 minutes.
The Tribunal prefers the evidence of the Applicant to the SSAT as a more accurate indication of his functional capacity at the time of the decision to cancel his disability support pension. On this basis, the Tribunal finds that, at the relevant time, the Applicant's knee and ankle pain caused moderate interference with walking.
Table 4 of the Impairment Tables provides:
TABLE 4.       FUNCTION OF THE LOWER LIMBS
Table 4 is used to assess lower limb not spinal function (see Table 5). Assess both limbs together. Determination of lower limb impairments must be based on a demonstrable loss of functions.
Rating Criteria
NIL     Walks without difficulty on a variety of different terrains and at varying speeds for distances of more than 500m.
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 250-500m or less, at a slow to moderate pace (4km/h). Can walk further after resting.
TWENTY       Demonstrable loss of strength, mobility, stability, balance, coordination and/or sensation such as to cause major interference with walking and one or more of the following: climbing, squatting, sitting or kneeling or Pain or claudication restricts walking (4km/h) to 50-250m or less at a time. Can walk further after resting or Unable to walk or stand but independently mobile using a self-propelled wheelchair.
THIRTY         Pain or claudication restricts walking (4km/h) to 50m or less at a time. Can walk further after resting or restricted to walking in and around home and: ·   requires quad stick, crutches or similar walking aid, or ·         is unable to transfer without assistance.
FORTY         Unable to walk or stand and mobile only in a motorised wheelchair or wheelchair with an attendant.
The Tribunal considers that the most appropriate rating for the Applicant's knee and ankle pain is 10 points, on the basis of the categories set out in table 4.
The Tribunal accepts, on the basis of Dr Roy's reports, that the Applicant underwent an aortic valvotomy in 1978 and his aortic valve was replaced with a homograft valve in 1993. However, Dr Roy's evidence was also that the Applicant is asymptomatic and suffers no physical restrictions arising from his heart. There is therefore no medical evidence connecting the Applicant's complaint of breathlessness and tiredness with his heart. Table 1 of the Impairment Tables allows for an impairment rating to be obtained by measuring exercise intolerance caused by cardiac or respiratory conditions. In the absence of medical evidence to establish any symptoms arising from the Applicant's cardiac condition or any respiratory condition, table 1 cannot be applied to the Applicant and it follows that no rating can be given for his heart condition.
While the Tribunal accepts that the Applicant is troubled by pain in his shoulder following his recent fall, there is no evidence, other than his own evidence to the Tribunal, of him having had a problem with his shoulder at the time the decision to cancel was made. Even if the Tribunal were to accept his evidence of being unable to raise his arm all the way up and to lift heavy things, but able to carry a few kilos and having no trouble with his grip, this mild interference with hand function or manual handling would not, under table 3 of the Impairment Tables, attract an impairment rating. Table 3 provides:
TABLE 3. UPPER LIMB FUNCTION
All upper limb problems are assessed under the upper limb Table (Table 3). Each arm is assessed separately. Determination of upper limb impairments must be based on a demonstrable loss of function.

Rating Criteria
NIL     Can use dominant limb effectively and/or Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of upper limb which causes mild interference with hand function or manual handling.
FIVE    Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of non-dominant upper limb which causes moderate interference with hand function or manual handling.
TEN     Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of dominant upper limb which causes moderate interference with hand function or manual handling.
FIFTEEN        Demonstrable evidence of major loss of strength, mobility, coordination, dexterity and/or sensation of non-dominant upper limb which causes significant interference with hand function or manual handling.
TWENTY       Demonstrable evidence of major loss of strength, mobility, coordination, dexterity and/or sensation of dominant upper limb which causes significant interference with hand function or manual handling or Unable to use non-dominant upper limb at all.
THIRTY         Unable to use dominant upper limb at all.

Dr Voutos, in his May 2002 reports, described, by reference to the results of a bone scan done in April 2002, inflammation of the Applicant's fingers of both hands, the cervical spine and big toes. However, while the Applicant, in his evidence to the Tribunal, complained of some stiffness in his fingers, he denied any problem with his cervical spine or toes. He also said he has no difficulty using his hands to do up buttons, tie shoelaces or use a knife and fork. Even if there was some evidence to establish that this inflammation was present at the time of the decision to cancel the Applicant's disability support pension, on the basis of table 3 of the Impairment Tables, the Applicant would attract a rating of nil.
It follows that the Applicant has an impairment rating of 10 points. This falls short of the requirement in section 94(1)(b) of the Act and renders him not qualified to receive disability support pension. That being so, it is unnecessary to canvass the issue of whether the Applicant has a continuing inability to work.
Determination.

The Tribunal affirms the decision under review.
I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of MS N BELL
Signed:         S.Swamy           .....................................................................................
  Associate
Date/s of Hearing  4 June 2002
Date of Decision  17 June 2002
Counsel for the Applicant        Self Represented
Solicitor for the Respondent    Susan Mantaring

[2002] AATA 464

17 June 2002

Key Legal Topics

Areas of Law

Social Security Law

Legal Concepts

Contract Formation

Breach of Contract

Unjust Enrichment

Compensatory Damages