Salioski and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1209

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1209

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V 200600565

GENERAL ADMINISTRATIVE DIVISION		)
Re		NAFIS SALIOSKI

Applicant

And

SECRETARY,
DEPARTMENT OF EMPLOYMENT

AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Dr R. McRae

Date5 April 2007

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(sgd) R. McRae

Member

SOCIAL SECURITY ‑ disability support pension ‑ lower back pain – arthritis (hands and feet) – agitated depression ‑ whether 20 impairment points ‑ impairment table 5.2 ‑ continuing inability to work

Social Security Act 1991

REASONS FOR DECISION

5 April 2007  Dr R. McRae, Member

1. Mr Nafis Salioski (the Applicant) seeks a review of a decision by the Social Security Appeals Tribunal (SSAT) dated 2 June 2006. The SSAT decision affirmed a decision of a Centrelink officer to reject the Applicant’s claim for disability support pension (DSP) dated 7 September 2005 because he failed to satisfy s 94(1)(b) of the Social Security Act 1991 (the Act).  The decision was affirmed by an authorised review officer on 3 April 2006, and subsequently by the SSAT.  This decision is the subject of the application before the Tribunal.  Centrelink acts as the service delivery agency for the Secretary to the Department of Employment and Workplace Relations (the Respondent). 

2.      The issue for the Tribunal is whether the Applicant was entitled to DSP according to the requirements of s 94(1) the Act at the time of his claim, or within the subsequent 13 weeks.  The Tribunal’s decision is that the Applicant is not entitled to the DSP.

3.      The Applicant was self-represented.  He was assisted by an appropriately qualified Macedonian interpreter.  The Respondent was represented by Mr Faisal Bakhtiar, a Centrelink advocate. 

BACKGROUND

4.      The Applicant is a 60 year old, divorced, Macedonian man who migrated from Macedonia to Australia in 1969.  He subsequently obtained Australian citizenship.  He has resided in Melbourne since 1989.  He completed Year 8 at high school and qualified as a painter in Macedonia.  The Applicant comprehends but is unable to write in English.  He was continuously employed, in unskilled but physically demanding work.  His most recent employment was as a kitchen hand with Qantas Airways Ltd, until he sustained a lower back injury on 7 July 2004.

5.      The Applicant has received Newstart Allowance since 6 January 2006.  He lodged a claim for DSP on 7 September 2005, claiming that his lower back pain, right leg injury and arthritis were preventing him from working. 

6.      Centrelink had the Applicant examined by Mr Anthony Stott, rehabilitation consultant, of Advanced Personnel Management, who provided a work capacity assessment dated 16 September 2005 (T6).  Mr Stott determined that the applicant had a work capacity of 30 hours per week, and assigned an impairment rating of five points according to Impairment Table 5.2 for permanent chronic lumbar incapacity of the Tables for the Assessment of Work-Related Impairment for Disability Support Pension (the Tables) in Schedule 1B of the Act.  Mr Stott also determined that the Applicant was suffering from Anxiety but assessed it as a temporary condition, and therefore unable to be assigned an impairment rating under the Tables.

7.      The SSAT assessed the Applicant’s impairment at ten points under Table 5.2 for permanent chronic lumbar pain.  The additional five points was for the presence of pain as well as a loss of one quarter of normal range of movement. 

APPLICANT’S SUBMISSIONS

8.      The Applicant stated that he is not well and can’t work, and that nobody will give him a job.  He submitted he was taking medications for sleeping, pain and depression.  The Tribunal noted the letter from Dr Jim Ristevski, his treating local general medical practitioner dated 1 December 2006.  Dr Ristevski assessed the applicant as having an impairment rating of at least 30 points: 20 points for the lumbar spine injury under Table 5.2 and between 10 and 20 points for anxiety and depression under Table 6. 

9.      Under cross-examination, the Applicant stated that he flew to Macedonia via Hong Kong and Germany on 5 June 2006.  He took two Panamax tablets every four hours, and one Voltaren tablet, and had to lie down for 10 to 15 minutes in the flight crew’s area to ease his back pain.  He said he takes medication for anxiety and depression sometimes, as it upsets his stomach.  He now feels more nervous without this medication.  He was uncertain when the anxiety commenced. 

RESPONDENT’S SUBMISSION

10.     The Tribunal received into evidence (Exhibit R1) a Job Capacity Assessment Report dated 19 January 2007 undertaken by Ms Larissa Natividad, rehabilitation consultant.  The Respondent does not contest the rating of ten points for the permanent condition of lower back pain.  The Respondent conceded that the conditions may have exacerbated and there could be some advantage to lodging a new claim rather than appealing this claim. 

LEGISLATION

11.Section 94(1) of the Act.

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…

12.Paragraphs 4, 5 and 8 of the Introduction to Schedule 1B of the Act. 

…

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.  The first step is thus to establish a working diagnosis based on the best available evidence.  Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating.  In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.

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 significant functional improvement, with or without reasonable treatment, within the next 2 years.

…

8.  In general, pain or fatigue should be assessed in terms of the underlying medical condition which causes it.  For example, Table 5 should be used for spinal pathology.  However, where the medical officer is of the opinion that the Tables underestimate the level of disability because of the presence of chronic entrenched pain, Table 20 can be used to assign a rating instead of the Table(s) that otherwise would be used to assess the loss of function to which the pain relates.  Medical officers must use their clinical judgement and be convinced that pain or fatigue is a significant factor contributing towards the person's overall functional impairment.  Medical reports and the person's history should consistently indicate the presence of chronic entrenched pain or fatigue.

…

FINDINGS

Lower Back Pain

13.     Radiological imaging evidence indicated a L5/S1 annular disc injury and L3/4 canal stenosis.  There is evidence to suggest the condition is permanent, but a contemporaneous functional assessment attracted a rating of five points under Table 5.2.  The Applicant provided no new diagnosis, investigation or treatment relevant to the period under consideration in evidence.  In particular the letter from Dr Ristevski dated 1 December 2006 provided no assistance to the Applicant as it did not refer to the time period under consideration.

14.     There is no evidence that use of Table 5.2 would underestimate the level of disability.  There is no evidence of a separate loss of function, or global effects of more than one body system.  The Tribunal thus considers Table 5.2 and not Table 20 is the appropriate table for assessment of the Applicant’s back impairment.  The Tribunal considers the back pain to have been fully documented, diagnosed, investigated, treated and stabilised, and agrees with the SSAT assessment of an impairment rating of ten points.

Anxiety

15.     During the relevant period, Dr Ristevski noted the Applicant suffered from anxiety in reaction to the pain from the lumbar condition.  Dr Ristevski prescribed sedatives and referred the Applicant to a specialist psychiatrist.  The Applicant saw the specialist on 21 November 2005, towards the end of the 13 week period following his claim for DSP.  The psychiatrist provided a plan for ongoing management of the condition and commenced the Applicant on new medications.  As far as the claim for DSP is concerned, it is clear that that the anxiety had not been fully documented, diagnosed, investigated, treated and stabilised.  Therefore, no additional impairment rating can be obtained as a result of anxiety. 

CONCLUSION

16. The Applicant satisfies s 94(1)(a) of the Act in that he has lower back pain that has been fully documented, diagnosed, investigated, treated and stabilised. However, the impairment attracts only 10 of the 20 points required by the Act for the Applicant to satisfy s 94(1)(b). As the Applicant fails to meet this subsection, there is no requirement to consider whether the Applicant has a continuing inability to work under s 94(1)(c) of the Act.

17.      The Tribunal concludes that at the time of his claim for DSP and in the following 13 weeks the Applicant did not satisfy the requirements necessary to qualify for DSP. 

DECISION

18.      Accordingly, the decision to reject the claim for DSP was the correct and preferable decision.  The Tribunal affirms the decision of the SSAT made on 2 June 2006.

I certify that the eighteen [18] preceding paragraphs are a true copy of the reasons for the decision of:

Dr.R. McRae, Member

(sgd):      Ursula Noyé

Clerk

Date of Hearing:  30 January 2007

Date of Decision:  5 April 2007
Advocate for the Applicant:        Self‑represented

Advocate for the Respondent:    Mr F Bakhtiar, Legal Services Branch, Centrelink