Radevski and Secretary, Department of Employment and Workplace Relations
[2007] AATA 1061
•8 February 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1061
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/599
GENERAL ADMINISTRATIVE DIVISION ) Re VANE RADEVSKI Applicant
And
SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Ms G Ettinger, Senior Member & Mr D Connolly AO, Member Date8 February 2007
PlaceSydney
Decision For the reasons given orally at the conclusion of the hearing, the Tribunal affirms the decision under review.
The oral reasons for decision have been transcribed by Auscript and are furnished to the Applicant and to the Respondent as they are the reasons for the Tribunal's decision.
............................................
Ms G Ettinger, Senior Member
CATCHWORDS
SOCIAL SECURITY - disability support pension – physical, intellectual or psychiatric impairment – failure to reach threshold 20 impairment points - decision under review affirmed.
Social Security Act 1991 – section 94, schedule 1B
Social Security (Administration) Act 1999 – schedule 2
REASONS FOR DECISION
8 February 2007 Ms G Ettinger, Senior Member
Mr D Connolly AO, MemberBACKGROUND
1. Mr Radevski is a 56 year old man who looks after his wife who is unwell and for whom he is receiving carer pension. He has previously applied for, and been rejected for disability support pension, to which I will refer as DSP. Mr Radevski applied to the then Secretary of Family and Community Services for DSP on 19 January 2005. Both the primary decision maker and the authorised review officer found he was not eligible for DSP because although they accepted Mr Radevski has certain physical problems, he did not reach the threshold 20 impairment points required as a first step pursuant to section 94 of the Social Security Act 1991.
2. He then applied to the Social Security Appeals Tribunal which heard his case, and on 15 April 2005 affirmed the decisions of the departmental officers. Mr Radevski then exercised his right to appeal to this Tribunal. He gave evidence before the Tribunal today (8 February 2007). The Tribunal was assisted by Mr Petrusev an interpreter in the Macedonian language. Mr Radevski tendered various documents which had not been before the previous decision makers. They were a St George Hospital discharge summary indicating he had been hospitalised from 31 January to 2 February 2007 which is Exhibit A1.
3. Exhibit A2 is Mr Radevski’s statement. Exhibit A3 consists of the report of a renal ultrasound dated 7 November 2005, and the report of Dr Maniam dated 22 July 2005 is Exhibit A4. We note that Dr Maniam is Mr Radevski’s treating orthopaedic specialist. Mr Radevski gave evidence of a number of problems and said that he is a sick person. He has not worked since he had a motor vehicle accident in 1993, and is convinced that he cannot work, even at jobs which offer light duties. He told the Tribunal that he almost did not come to the hearing today because of the problems he faces in coming by train to the city, which takes about 30 minutes.
4. The respondent department was represented by Mr A. Carter of Sparke Helmore. The respondent’s documents consisted of the documents produced pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 which we call the T- documents, and a report of Dr Matalani, an occupational physician who examined Mr Radevski and produced a report dated 20 October 2006.
ISSUE BEFORE THE TRIBUNAL
5. The issue before the Tribunal was whether the applicant satisfies the criteria pursuant to section 94(1) and (2) of the Social Security Act and thus, whether he is eligible for DSP. The threshold issue for determination is whether the applicant has a physical, intellectual, or psychiatric impairment of 20 points or more under the Tables for the Assessment of Work-Related Impairment for Disability Support Pension which I will refer to as the Impairment Tables. These are produced pursuant to schedule 1B of the Social Security Act 1991.
THE LEGISLATION
6. The relevant legislation in this matter is the Social Security Act 1991. Section 94 has the qualifications for disability support pension, and a person is qualified for DSP, if pursuant to section 94(1)(a), a person has a physical, intellectual, or psychiatric impairment, and (b) the person’s impairment is 20 points or more under the Impairment Tables. Under 94(1)(c), there are a number of different conditions and the one we would be looking at is whether the applicant has a continuing inability to work.
CONSIDERATION OF THE EVIDENCE AND CONCLUSIONS
7. In considering whether Mr Radevski is eligible for DSP we considered the evidence before us and submissions of the parties, and applied the legislation. Clause 14 of Schedule 2 of the Social Security (Administration) Act 1999 provides that the relevant time to consider a person’s entitlement is during the 13 weeks after the claim is lodged. Mr Radevski’s application was lodged with Centrelink on 19 January 2005, and therefore the 13 week period expired on 20 April 2005. We noted that the parties concurred that the applicant suffers physical impairment.
8. We accepted that, noting that it is because he has a neck and back condition which has stabilised and is permanent, and that he has been given impairment ratings by Drs Maniam and Matalani calculated with reference to the Impairment Tables. Accordingly, we were satisfied that the applicant satisfies the test in section 94(1)(a) of the Act.
9. Therefore, the next issue to be decided is whether the applicant’s conditions led to an impairment rating of 20 points or more in accordance with section 94(1)(b) of the Act.
10. Only if the applicant is found to be suffering 20 or more impairment points pursuant to the Impairment Tables, then we have to decide whether he meets the requirements of section 94(1)(c) of the Act.
11. Accordingly, we have considered Mr Radevski’s evidence which is that he has suffered constant neck pain since 1993. He told us that he suffers right shoulder and arm pain, and that he has low back pain which radiates into his right leg. He has pain in his knees. He has varicose veins, kidney stones, and polyps, and more recently, heart problems.
12. We asked Mr Radevski to tell us since when he has been suffering these conditions. He was unable to give us even approximate dates for most of the conditions, and said that he was afraid he might give dates different from those which were in the documents, and that we might draw adverse inferences from that. He said, however, that he has had right shoulder and right arm pain for a long time, and that since the beginning of this year he has suffered pain every day.
13. We noted from Dr Matalani’s report that Mr Radevski’s most recent medical problems were an admission in July 2006 to St George Hospital for laparoscopic removal of right adrenal adenoma, and from his discharge summary, which is Exhibit A1, that he was admitted to the hospital from 31 January to 3 February 2007 because he had chest pain.
14. Mr Radevski also said he had difficulty breathing. He told us that because his wife is sick he does some housework, consisting of ten minutes of vacuuming once every two weeks, and some shopping. He said that he can drive short distances. He said his wife does the cooking and washing. Mr Radevski said that until January 2007 when he had chest pain, he had been mowing the lawns. We have noted that the decisions of the respondent department were made on the basis of the medical report of a Health Services Australia medical advisor, Dr N. Trayer, dated 15 February 2005.
15. Mr Radevski was assessed with an impairment rating of ten points under the Impairment Tables. That is at T27. The medical officer assessed the applicant with an impairment rating of 10 points, being five points under Table 5.1, for loss of a quarter of the normal range of movement of the cervical spine, and 5 points under Table 5.2, for loss of a quarter of the normal range of movement of the thoraco-lumbar sacral spine. The applicant’s renal calculi and gall bladder polyps were both assessed at nil points under Table 20. The applicant was assessed as unfit for heavy physical work, but fit for light duties work of at least 30 hours per week.
16. The authorised review officer affirmed the decision to refuse the applicant’s DSP because he was assessed with an impairment of less than 20 points under the Impairment Tables. The authorised review officer made the following findings. The applicant suffers from neck pain and back pain, polyps in the gall bladder and renal calculi. The applicant’s total impairment rating is 15 points. He does not have a continuing inability to work, and therefore, did not qualify for DSP. In doing so, the authorised review officer reviewed the medical assessment report of Dr Trayer and considered that the impairment rating, in respect of the applicant’s back condition, pursuant to table 5.2 of the Impairment Tables, should be assigned an impairment rating of 10 points rather than 5 points to take into account complaints of referred pain upon activity.
17. Accordingly, the authorised review officer rated Mr Radevski at 15 points rather than 10. However, this was insufficient to satisfy the requirements of section 94(1)(b) of the Act.
18. This was followed by the hearing at the SSAT. We noted that the SSAT found that the applicant suffered from back pain, and had 25 percent restriction in back movement with radiated pain, and that, that, constituted an impairment rating of 10 points under Table 5.2 of the Impairment Tables. Further, that he had suffered from a 25 percent restriction of movement of the neck, and that, that, constituted an impairment rating of 5 points under Table 5.1 of the Impairment Tables.
19. Mr Carter submitted that this Tribunal should find no error in the respondent’s decisions and follow them, emphasising the constitution of the SSAT which included an eminent medical practitioner. We are mindful that the hearing before us is de novo, and that in coming to our decision we must take into account the whole of the evidence before us, including the additional evidence which was not before the other decision makers, and apply the law. We accept from the medical evidence that the applicant’s pain in the shoulder and limbs is related to his cervical condition and assessed pursuant to Table 5.1. We accept both Drs Maniam and Matalani’s impairment rating of 5 points. Both Drs Maniam and Matalani gave a 10 point impairment rating for Mr Radevski’s back pursuant to Table 5.2, which we also accept.
20. As to Mr Radevski’s complaint about his knees, we noted that knees were mentioned in Mr Radevski’s 1998 application where Dr Wright had noted, and I quote:
Sore knees. Knees ache on prolonged walking. X-rays. Very early osteoarthritic changes.
21. Further, at T14 on page 63 of the T-documents, Dr Wright had ticked the ‘yes’ box in answer to the question, “Does pain consistently restrict walking to a definable distance?”, and he had qualified that ‘yes’ by adding in his handwriting:
… but sciatica, not knee pain restricts walking distances.
22. In Mr Radevski’s present application for DSP, he did not mention knee pain and any permanent impairment has not been assessed by the respondent or the SSAT. We do not have any evidence before us to satisfy us that the knee pain the applicant reports arises out of any of his conditions which have been before the previous decision makers.
23. We have noted that in his report dated 22 July 2005, Dr Maniam rated Mr Radevski’s knee problems pursuant to Table 4 of the Impairment Tables at 10 impairment points. We accept it is impairment points which he meant, even though he wrote 10 percent in his report. We are mindful that Dr Matalani in his report of 20 October 2006 gave a nil impairment rating in relation to Mr Radevski’s knees pursuant to Table 4, and stated he found no demonstrable loss of strength or mobility. He wrote that:
The range of his motion of his knees is full and painless bilaterally. He was able to squat fully, although he complained of pain. His X-rays do not demonstrate a significant degree of arthritis.
24. We note Dr Matalani’s opinion that Dr Maniam had not applied Table 4 correctly in relation to the knees. He described that Dr Maniam said the applicant had difficulty with climbing, squatting, sitting and kneeling. However, Table 4 requires a person with an impairment rating of 10 points to have demonstrable loss of strength, mobility, stability, balance, coordination and all sensation such as to cause moderate interference with walking and one of the following: climbing, squatting, sitting, or kneeling, or pain or claudication that restricts walking to 250 to 500 metres or less at a slow to moderate pace (4 kilometres an hour). Can walk further after resting.
25. We agreed with Dr Matalani that Dr Maniam applied the wrong test. Further, Dr Maniam refers to a radiology report in respect of the knees dated 12 November 1996 where it was summarised simply as early degenerative changes. There is no evidence before us of the applicant undergoing more recent radiological investigations in respect of the knees. We considered the impairment rating of 10 which Dr Maniam gave Mr Radevski for his knees, and would expect arthritis in the knees to become worse rather than better given a year’s interval between the July 2005 report of Dr Maniam, and the October 2006 report of Dr Matalani.
26. Even if we were able to take Mr Radevski’s knees into account in assessing his permanent impairment, we prefer the later assessment of Dr Matalani, noting that Dr Maniam applied the wrong tests for Table 4. Accordingly we find that the impairment rating for Mr Radevski’s knees is nil.
27. Now, the applicant’s kidney stones and gall bladder polyps were considered to be of an intermittent and mild nature except on occasions when obstruction occurred. We noted Mr Radevski was admitted to St George Hospital for laparoscopic removal of right adrenal adenoma in July 2006.
28. There was no medical report before us regarding this procedure or further problems, and we are unable to give an impairment rating other than nil. We have no report of heart problems other than the discharge summary from Mr Radevski’s admission to St George Hospital from 31 January to 3 February 2007. We do not have a medical report about any heart condition other than that of Dr Matalani who gave a nil rating based on a stress test and other criteria. We accept a nil rating in relation to the heart. We have already noted in the paragraphs above that we accept Dr Maniam and Matalani’s agreed impairment ratings, being 5 points for Mr Radevski’s cervical spine and 10 points for his lumbar spine.
29. We were not satisfied that there are any other fully documented treated or stabilised conditions that could be rated at more than nil points under the relevant Impairment Tables. We were satisfied that the applicant’s total impairment rating was 15 points at the relevant time and that Mr Radevski, therefore, does not satisfy the requirements of section 94(1)(b) of the Act.
30. Accordingly, although Mr Radevski gave evidence about his continuing inability to work, and Mr Carter made submissions about the work the applicant can do, we are not required to further consider that pursuant to section 94(1)(c) of the Act.
31. As Mr Radevski’s impairment rating does not reach the threshold 20 impairment points on this occasion, his application must fail. However, if he feels that his condition deteriorates in the future, and he has doctors’ reports to support that view, he is free to reapply for DSP or any other pension which he thinks is appropriate. Therefore, the correct or preferable decision is to affirm the decisions of the respondent and the SSAT which refused the applicant’s claim for DSP.
DECISION
32. The Tribunal affirms the decisions under review.
I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member and Mr D Connolly AO, Member.
Signed: ...........[sgd]..........
AssociateDate/s of Hearing 8 February 2007
Date of Decision 8 February 2007
Representative for the Applicant Unrepresented
Representative for the Respondent Anthony Carter of Sparke Helmore
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