Pupovac and Secretary, Department of Family and Community Services
[2004] AATA 977
•20 September 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 977
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/510
GENERAL ADMINISTRATIVE DIVISION ) Re SVETOZAR PUPOVAC Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal REAR ADMIRAL A R HORTON AO Date20 September 2004
PlaceSydney
Decision The decision under review is affirmed.
[Sgd] Rear Admiral A R Horton AO, Member
CATCHWORDS
SOCIAL SECURITY - disability support pension – review of Social Security Appeals Tribunal decision that applicant not qualified – applicant has physical impairments - assessment of impairment ratings – combined impairment assessed as 15 points – conditions of section 94(1)(b) of Social Security Act 1991 not met – decision under review affirmed.
Social Security Act 1991 - section 94
Social Security (Administration) Act 1999 – Schedule 2, Part 2
REASONS FOR DECISION
20 September 2004 REAR ADMIRAL A R HORTON AO 1. This is an application to review a decision of the Social Security Appeals Tribunal (“SSAT”) on 7 April 2004 that affirmed a decision of an authorised review officer (“ARO”) of 28 October 2003 that Mr Svetozar Pupovac (“the Applicant”) is not eligible for the disability support pension (“DSP”). The ARO had in turn so affirmed a decision of a delegate of the Secretary, Department of Family and Community Services (“the Respondent”) dated 19 June 2003.
2. At a hearing before the Administrative Appeals Tribunal on 16 July 2004 in Wollongong, Mr Pupovac was self represented. Mr A Zhang, an advocate from the Administrative Law section of Centrelink appeared for the Respondent. The Tribunal was assisted by Ms Vera Bagoevska, an interpreter fluent in the Macedonian language, although in the event, Mr Pupovac’s command of the English language was very good.
3. The Tribunal took into evidence the documents pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, a Treadmill Exercise Test Report from Illawarra Holter Monitoring dated 8 June 2004 (Exhibit A1) and the Respondent’s Statement of Facts and Contentions dated 14 July 2004 (Exhibit R1).
LEGISLATION AND ISSUES
4. The issue before the Tribunal is whether Mr Pupovac satisfies the criteria at section 94 of the Social Security Act 1991 (“the Act”) in respect of eligibility for the DSP. Such criteria must be satisfied within a period of 13 weeks after the day on which the claim is made, Schedule 2 Part 2 of the Social Security (Administration) Act 1999 (“the Administration Act”) being relevant. The date of the claim in this matter was 26 May 2003, the period of eligibility therefore ending on 25 August 2003.
5. The Respondent concedes that Mr Pupovac has impairments of ischaemic heart disease (“IHD”), diffuse idiopathic skeletal hyperostosis (“DISH”), hypertension and pain in the right hand. Thus Mr Pupovac meets the provisions of subsection 94(1)(a) of the Act in respect of impairment.
6. The issues before the Tribunal are therefore:
(a)Whether Mr Pupovac’s impairments are of a combined total of 20 points or more under the Impairment Tables in Schedule 1B of the Act; as required under subsection 94(1)(b);
(b)Pursuant to subsections 94(1)(c), 94(2) and 94(5), whether he has a continuing inability to work because the impairment itself prevents him from doing any work for at least 30 hours per week at award wages within the next two years; and
(i)The impairment is of itself sufficient to prevent him from undertaking educational or vocational training or on-the-job training during the next 2 years; or
(ii)If the impairment does not prevent him from undertaking educational, or vocational training or on-the-job training – such training is unlikely (because of the impairment) to enable him to do any work within the next 2 years.
In respect of subsection 94(2)(b)(ii) regarding educational or vocational training, Mr Pupovac may benefit from the provisions of subsection 94(4) which allows the Tribunal to have regard to the likely availability of work in his locally accessible labour market, he being over 55 years of age.
BACKGROUND AND EVIDENCE
7. Mr Pupovac arrived in Australia from Yugoslavia in 1960, aged 18 years. He obtained employment with Broken Hill Proprietary Ltd (“BHP”), working for that company for the next 40 years, until taking a redundancy due to his health problems. He is married with 2 children.
8. Mr Pupovac described his range of employments with BHP. He started as a labourer, then moved to oxy welding, before becoming an overhead crane driver working shifts for the next 14 years. At that time, high blood pressure led to him reverting to labouring for a short period. Subsequently he was employed as leading hand controlling a crane, before spending short periods as an alloy attendant, scrap yard attendant and gear chaser. In 1980, he became a storeman.
9. In 1991, Mr Pupovac developed a heart problem, which he described as severe pain and an inability to sleep. Following tests, an angioplasty in both his right coronary and circumflex arteries was performed by Dr Owensby, who remains his cardiologist to this day. Mr Pupovac gave evidence that he believed the walls of an artery had been damaged, and that bypass surgery was likely in due course. After the operation he took aspirin tablets to thin the blood.
10. In 2000, Mr Pupovac was offered a redundancy by BHP, and he ceased work. In evidence, he stated that this decision was driven by his poor health. At the time he suffered from back pain and pain in the right leg, and could not walk any distance. He could not lift his arms to carryout the work required of a storeman. He has not worked since his retirement from BHP, nor has he been in receipt of any social security benefits, his first claim being on 26 May 2003, in the matter before the Tribunal. To date, he has lived on the redundancy payment received from BHP.
11. He attributed his retirement to his heart condition and the condition of DISH, the cause of which is unknown but which most often affects the spine, the latter becoming sore in about 1997/1998, causing him difficulty in getting out of bed, where he felt as if he had been “knifed in the back”. Mr Pupovac saw his general practitioner, Dr J Turner, at that time, to be informed there was nothing that could be done for the condition. Panadeine was prescribed to assist in pain control, this helping to a limited extent. Mr Pupovac stated that following an MRI scan, Dr Turner confirmed that nothing untoward was evident, and referred him to a specialist who was in agreement. Nonetheless, Mr Pupovac was in pain, a pain that he described as now worse than in 1998.
12. He referred to suffering from constant pain in the upper and lower back and the shoulders, the opinion of Dr Turner being that this was radiated pain from the back. Mr Pupovac said that he could bend with difficulty and could not lift. In his Treating Doctor’s Report (“TDR”) dated 26 May 2003, Dr Turner refers to a history of back, shoulder and knee pain (his notes being difficult to decipher), the latter being more pronounced in the right leg. He notes that the original diagnosis of the condition was made by Dr J Riordan in 1997. As regards medication, Dr Turner refers in the TDR to panamax for relief of pain. He has pain in the right hand, and referred to pain in his neck, restricting movement, but he has not discussed this with Dr Turner.
13. Mr Pupovac considered his cholesterol to be higher than it should, and that more needed to be done to reduce the level from 6 ½ to 7. He sees Dr Turner every 3 to 4 months. Initially he was placed on pravachol however this was not very effective and Dr Owensby changed the medication to lipex.
14. The date of onset of high blood pressure per se is not clear to the Tribunal. Dr Turner makes no specific reference to this condition. The SSAT notes that hypertension was diagnosed 2 weeks before Mr Pupovac was examined by Dr Wassenaar of Health Services Australia “(HSA”). Mr Pupovac stated that his high blood pressure is generally controlled by medication, and he stated that Dr Turner was “sometimes satisfied”. The Tribunal notes that Dr Turner, in his letter of 26 August 2003 to Centrelink refers to coversyl as the medication given to Mr Pupovac for hypertension.
15. Returning to the ischaemic heart condition, Mr Pupovac considered this to be the greatest problem in his life. It has worsened since 2000. On exercise, the left hand side in his chest gets tight, and the centre of his chest and his left arm become painful. His medication is anginine. In a letter dated 29 April 2004 to the Tribunal, Mr Pupovac also refers to chest pain at night and during day time. In his TDR, Dr Turner describes chest pain on exertion, and notes it effects Mr Pupovac’s ability to exercise and when walking uphill. Mr Pupovac stated that he could walk for 10 to 15 minutes, but had to stop and rest because of shortness of breath. In his letter of 26 August 2003, Dr Turner observes that the angioplasty in 1991 was done before the era of stenting, with a 1 in 3 chance of stenosising again. He opines that Mr Pupovac has “multi vessel disease” in his heart, which could not be treated in 1991. He refers to increasing angina in recent months. He considers it highly likely that Mr Pupovac will eventually agree to an angiography again in order to enable consideration of future treatment to be determined.
16. Dr Owensby saw Mr Pupovac in June 2003. In a letter of 20 February 2004 to the SSAT, Dr Turner states that Dr Owensby felt that “his coronary artery disease was progressing”, which the Tribunal takes to mean “getting worse”, and that Mr Pupovac had developed an aortic systolic murmur. Dr Owensby recommended that because of his past history, Mr Pupovac should agree to a diagnostic cardiac catheterisation and do an echocardiographic evaluation for the systolic murmur together with pathology screening. Dr Turner observes that Mr Pupovac felt uncomfortable about this procedure. The Treadmill Exercise Report of 8 June 2004 (Exhibit A1) records the achievement of 7 METS and concludes that angina and borderline ECG changes are consistent with myocardial ischaemia, and again recommends further investigation.
17. In oral evidence, Mr Pupovac confirmed that he was scared to undertake the proposed investigations. Notwithstanding that Dr Turner had told him to seek comfort in the proposal by speaking with hospital staff, he stated that he had not done so. He described his fear as not wanting to be made aware of any significant problem, and that his reluctance to have an investigation undertaken and to remain in pain with no understanding of the long term effects was supported by his family.
18. Mr Pupovac can walk in the conditions earlier described; asked whether he could drive a motor vehicle, he said he could do so with a cushion behind his back. He does not use public transport. He described pain in the right leg and right knee, exacerbated in the last month. To date he has had little problem with the left knee, but he has pain in both calves. He finds it painful to stand still and needs to keep moving. Recently he has suffered pain in the groin. Because of his pain, particularly in the right hand, with some pain in the left, he can not shop as he can only lift 1 to 2 kilograms.
19. Mr Pupovac described his life style since retiring in 2000 as “relaxing and not looking for work” but that he would do so should his health improve. He has supported himself in retirement on his redundancy payment. His wife works and hence the family has other income. He has no health card, and stated that he had no money to enable him to see specialists. Mr Pupovac said he thought he could do a light job, and perhaps office work, although he was not skilled for the latter. However, he doubted he could work 6 hours per day (or 30 hours per week).
RESPONDENT’S SUBMISSION
20. The Respondent referred to the examination and report by Dr E Wassenaar of HSA dated 2 June 2003, which confirmed the conditions noted above, that is, IHD, DISH, right hand pain and hypertension, and made passing reference to mild intermittent neck, right hip and right knee pain. Dr Wassenaar notes that Mr Pupovac was taking no painkiller medication at the time for DISH, where she observed restricted abduction of the arms to shoulder height, and a restriction on heavy physical work. She considered Mr Pupovac to be temporarily unfit for all work for 3 to 6 months because of IHD. She assessed the total impairment rating under Schedule 1B of the Act at 10 points for DISH under Table 20, with no rating for IHD or hypertension because those conditions were temporary and not stabilised.
21. Based on that report, the emphasis given to DISH rather than IHD by Mr Pupovac in his claim and the views of Drs Turner and Owensby that further investigation and assessment of the condition was required, the Respondent submitted that IHD was not stabilised and could not be rated for impairment. Further, Mr Pupovac has been urged to undergo further investigation into his condition, which might lead to functional improvement over the next two years with appropriate treatment, but he has declined to do so. The Respondent submitted that the change of medication in mid 2003 was also evidence that the condition was not stabilised at that time.
22. In respect of the DISH condition, the Respondent submitted that the assessment by Dr Wassenaar should be followed, but a rating of 15 points under Table 20, as suggested by the SSAT, could be accepted. This would also take account of the claimed neck and lower limb conditions and the arthritis pain in the right hand, none of which, on the evidence, warrant a rating against relevant tables. The Respondent considered that the condition of hypertension, diagnosed by Dr Turner in May 2003, should be considered as a temporary condition, and is not yet stabilised. Hence a rating cannot be applied. In summary, therefore, the Respondent submitted that Mr Pupovac has not meet the criteria of 20 impairment points and thus has not satisfied subsection 94(1)(b) of the Act.
23. In the statement of Facts and Contentions (Exhibit R1), the Respondent submitted that Mr Pupovac did not meet the requirements of subsection 94(1)(c) in respect of work, because those conditions yet to be stabilised made it impossible to assess his ability to return to work. In oral evidence, the Respondent submitted that the evidence indicated he could undertake light work, although Mr Pupovac indicated that he did not know if he could do so, or undertake suitable training.
ANALYSIS AND FINDINGS
24. Mr Pupovac meets the conditions of subsection 94(1)(a) of the Act in that he has impairments of ischaemic heart disease (“IHD”), diffuse idiopathic skeletal hyperostosis (“DISH”), hypertension and pain in the right hand. These conditions have been conceded by the Respondent and are supported on the evidence.
ISCHAEMIC HEART DISEASE
25. The SSAT addressed the matter of the refusal by Mr Pupovac to undertake further investigation into his heart condition, as recommended by Drs Turner and Owensby, and in particular whether there was a compelling reason for him not pursuing this avenue. The SSAT formed the opinion that:
“The tribunal is unable to find that it is such a reason. In circumstances where the treatment may well lead to a significant improvement in his condition, and given the passage of time since the only other treatment he has received for this condition, the tribunal is unable to find that there is a sufficient compelling reason for him not to have consulted the specialist and investigated what treatment may result in the alleviation of his present condition”.
26. The introduction to the Impairment Tables at Schedule 1B of the Act state relevantly in respect of the condition of permanency under which a rating may be given:
“4. A rating is only to be assigned after a comprehensive history and examination. For a rating to be assigned the condition must be fully documented, diagnosed condition which has been investigated, treated and stabilised…. ...
5. The condition must be considered to be permanent. .Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years. A condition may be considered fully stabilised if it is unlikely that there will be any significantly functional improvement, with or without reasonable treatment, within the next two years.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;
*where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient.
It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment, unless that treatment has associated risks or side effects which are unacceptable to the person. In those cases where significant functional improvement is not expected or where there is a medical or other compelling reason for a person not undertaking further treatment, it may be reasonable to consider the condition stabilised.
In exceptional circumstances, where a condition was considered not stabilised and a permanent impairment rating not assigned because reasonable treatment for a specific condition has not been undertaken, the medical officer should:
* evaluate and document the probable outcome of treatment and the main risks and or side effects of the treatment; and
* indicate why this treatment is reasonable; and
* note the reasons why the person has chosen not to have treatment.”
27. The above extracts of the introduction to the Impairment Tables variously refer to “treatment”. It might be implied that the word, in the context before the Tribunal means an active or passive action to treat a disease. That is not the case however, the Concise Oxford Dictionary providing the much broader definition of “medical care or attention”. This is an important consideration, as it must therefore encompass the investigative actions proposed by Dr Turner in respect of the need to undertake an angiography, and that of Dr Owensby in respect of cardiac catheterisation and echocardiographic evaluation. Both these recommendations relate specifically to investigations in order that future options for the control of heart disease might be determined.
28. The treatment proposed for Mr Pupovac seemingly meets the “reasonable” criteria in the Introduction to the Tables. It is feasible and accessible and apparently available locally, and such procedures are regularly undertaken. Whilst cost is a consideration, and Mr Pupovac refers to that, his primary reason for refusing to follow the recommendations of his doctors is fear of the unknown, and what the investigations might reveal. That is understood, given his evident concern resulting from the angioplasty in 1991. But the Tribunal is not of the opinion that such concerns, real as they are, are sufficient reason not to pursue the investigation into his condition, and hence that condition remains to be stabilised and is therefore, for the present, and not withstanding the diagnosis and evidence of a heart condition, considered temporary. An impairment rating cannot therefore be assigned.
DIFFUSE IDIOPATHIC SKELETAL HYPEROSTOSIS
29. The approach by Dr Wassenaar to consider this condition and hypertension under Table 20, which relates to miscellaneous conditions, is considered appropriate. The criteria that need to be considered in ascertaining an impairment rating are described thus:
“TEN 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.
FIFTEEN Moderate to severe symptoms which are more distressing but prevent few everyday activities. Self-care is unaffected and independence retained. Symptoms may have mild to moderate impact on ability to perform or persist with work-related tasks and/or attend work. Full-time work will still be possible.
TWENTY 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.”
27. The conditions of shoulder, neck and lower limb pain can be considered under this Table, but the Tribunal finds little medical evidence to support the contention that these are separate and rateable conditions, other than being taken into account when considering DISH. Dr Wassenaar considered hypertension not to be stabilised, which the Tribunal must agree with, given that whilst the condition is presently subject to medication, in the period under review it was just diagnosed and hence the appropriate treatment was being determined. Thus Table 20 is effectively relevant to the condition of DISH and related arthritic problems, and on the evidence, a 15 point impairment rating is appropriate, given that it covers moderate to severe symptoms. The Tribunal so finds.
28. The Tribunal does not find for an impairment in respect of high cholesterol; there being no medical evidence in respect of such a condition. The remaining impairment is that of the right hand pain. Dr Wassenaar diagnosed such a condition, recording pain in the 2nd and 3rd fingers, and difficulty gripping. Mr Pupovac is right hand dominant. Dr Wassenaar further described the affect on ability to function as “mild dexterity difficulties” and in respect of his capacity to work “mild difficulties with manual handling”. Under Table 3 which relates to Upper limb Function, she assessed a nil impairment rating. Table 3 relevantly defines criteria as:
“NIL Can use dominant limb effectively and/or
Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of upper limb which cause mild interference with hand function or manual handling.
“TENDemonstrable 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.”
On the evidence, and taking account of the opinion of Dr Wassenaar, the Tribunal finds that a rating on Nil points is appropriate.
29. The Tribunal therefore finds for a combined impairment rating of 15 points, which does not satisfy the requirement for 20 points or more under subsection 94(1)(b) of the Act, and hence Mr Pupovac is not eligible for the DSP. There is no requirement for the Tribunal to consider subsection 94(1)(c ) of the Act in respect of work or educational, vocational or on-the–job training, and no comment is made. But the Tribunal does feel it appropriate to recommend to Mr Pupovac that he follow the advice of his doctors and allow an investigation of his IHD to be undertaken.
DECISION
30. The decision under review, that Mr Pupovac 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: Neil Glaser
AssociateDate of Hearing 16 July 2004
Date of Decision 20 September 2004
Representative for the Applicant Self Represented
Advocate for the Respondent Mr Andrew Zhang
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