Sammut and Secretary, Department of Employment and Workplace Relations

[2006] AATA 55

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 55

ADMINISTRATIVE APPEALS TRIBUNAL         Nº V2005/508

GENERAL ADMINISTRATIVE DIVISION

Re:JOSEPH SAMMUT

Applicant

And:SECRETARY,

DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal:       Regina Perton, Member

Date:              24 January 2006

Place:             Melbourne

Decision:The Tribunal affirms the decisions under review.

(sgd) Regina Perton

Member

SOCIAL SECURITY ‑ disability support pension ‑ whether 20 impairment points – whether condition stabilised and treated – Newstart allowance – cancellation of incapacity exemption – decisions affirmed

Social Security Act 1991 ss 94(1), 94(2), 541, 601, 603C, Schedule 1B

Social Security (Administration) Act 1999 cl 4(1) of Schedule 2

REASONS FOR DECISION

24 January 2006  Regina Perton, Member

1.       Joseph Sammut is almost 58 years old.  He was born in Malta and migrated to Australia as a young man.  He has suffered from a number of medical conditions including osteoarthritis in his knees for several years.  In 2002 Mr Sammut accepted a redundancy package from his employer.  His health had deteriorated and that was part of the reason for the redundancy.  He then set up a business with the encouragement of Centrelink.  The business was, unfortunately, not successful.  After closing down the business, Mr Sammut has been unable to obtain regular work.   Mr Sammut has been receiving Newstart Allowance (NSA) since December 2003.  From February to December 2004, he was exempt from the NSA activity test on the basis of his medical condition. 

2.       Centrelink administers NSA and other benefits for the Department of Employment and Workplace Relations.  On 8 December 2004, despite a medical report from his doctor indicating that he was still unfit for work, a Centrelink officer determined that Mr Sammut no longer qualified for exemption from the NSA activity test.  An authorised review officer (ARO) reviewed the decision on 21 December 2004 and found that Mr Sammut did not meet the legislative requirements for exemption from the test.

3.       On 16 January 2005 (T21), Mr Sammut applied for disability support pension (DSP).  On 31 January 2005, a Centrelink officer refused the application.  Mr Sammut was assessed as not having an impairment rating of at least 20 points under the Tables for the Assessment of Work-Related Impairment for Disability Support Pension (the Impairment Tables) in Schedule 1B of the Social Security Act 1991 (the Act).  On 4 March 2005, an authorised review officer (ARO) reviewed the decision and found that Mr Sammut was not eligible for DSP. 

4.       On 3 May 2005, the Social Security Appeals Tribunal (SSAT) affirmed the decision to refuse DSP and the decision that he was not exempt from the NSA activity test.  Mr Sammut lodged an application for review of the SSAT decision with this Tribunal on 9 June 2005.

5.       At the hearing on 16 January 2006, Mr Sammut represented himself. Mr David Perdon, a Centrelink advocate, represented the respondent.

6.       The Tribunal is considering two matters:

·   whether the decision on 8 December 2004, that Mr Sammut was not exempt from the activity test, was correct

·   whether Mr Sammut satisfied the requirements for DSP as at 16 January 2005 (the date of his claim) or within 13 weeks of that date.

EVIDENCE

7.       At the hearing Mr Sammut described his work history and medical conditions.  He said that he would like to work.  He said that the difficulty is that when he applies for a position he is asked to fill in a form with his medical history.  If he describes his neck and knee conditions truthfully, he does not get the position.  He has applied for jobs as a forklift and/or truck driver without success.  He is willing to try any type of job.  However, his health and age have proven to be insurmountable barriers so far.  He described how he has checked with various job providers on jobs available and has called in to businesses to see if there are any positions available.  He described the nature of the business he set up after his redundancy and the reason for its failure, which included his health.  He also told of doing other jobs to make ends meet when the business was not doing well.  When he closed down the business he was forced to sell the stock below cost and lost a lot of money.  Mr Sammut referred to his doctors’ reports that indicated he is not fit for work.  He also provided documents, which he obtained during 2005, concerning investigations of his spinal and coronary conditions.

8.       Centrelink records show that Mr Sammut lodged medical certificates in February 2004, May 2004, August 2004, November 2004 and December 2004 on the basis of which he was exempted from the activity test.  The records show that the medical conditions of osteoarthritis, ischaemic heart disease and hypertension were described as temporary.   

9.       In a medical certificate dated 3 November 2004, Dr Mike Mazzoni indicated that Mr Sammut had been a patient at his medical practice since 16 April 1997.  Dr Mazzoni indicated that Mr Sammut suffered from severe osteoarthritis of both knees and ischaemic heart disease/hypertension with the conditions being permanent but likely to deteriorate within the next two years.  Dr Mazzoni indicated that Mr Sammut would be unable to work or study for 8 hours or more per week from 3 November 2004 until 13 December 2004. 

10.     On 25 November 2004, Dr D Cheung of Health Services Australia (HSA) examined Mr Sammut at Centrelink’s request, and prepared a report summarising Mr Sammut’s medical condition  as follows:

56 year old man stopped working as a warehouse technician over 2 years ago after he was made redundant for health reasons.  He subsequently attempted to start his own business selling children’s clothes and toys, and ceased his work for both medical and non-medical reasons.

He has osteoarthritis of the knees and neck which cause pain and stiffness. affecting walking and standing.  He is taking mild anti-inflammatory medications on an intermittent basis for his symptoms.  He also has ischaemic heart disease with occasional chest pain which has not required treatment.  He is taking medications to support heart function including ones for hypertension.  Functionally he has reasonably good endurance, lasting 11 minutes during an exercise test on a treadmill, and swimming up to 45 minutes as part of his therapy,

This man’s medical conditions prevent him from returning to any manual labouring work.  He is otherwise fit for light sedentary work on a full-time basis.  Referral for vocational and functional assessment may help return him to suitable employment.

11.     Dr M Hagos, who has been Mr Sammut’s doctor since April 1997, prepared a medical certificate on 6 December 2004 in which he stated that Mr Sammut has very bad OA of R & L knees and ischaemic chest pain and HT with all conditions described as permanent.  He declared that Mr Sammut was unfit for work or study from 13 December 2004 until 13 March 2005.  On 8 December 2004, Mr Sammut lodged the medical certificate with Centrelink to seek a further extension of his exemption from the activity test. 

12.     On 8 December 2004, a Centrelink officer decided that Mr Sammut was not entitled to an exemption from the activity test at that time.  On 21 December 2004, an ARO agreed with the original decision.   

13.     Mr Sammut’s application for DSP was accompanied by a treating doctor’s report from Dr Hagos dated 29 December 2004.  Dr Hagos stated that Mr Sammut suffered from very bad OA of R & L knees for which he took analgesia.  He stated that the impact on Mr Sammut is that his movement is limited to some degree.  Dr Hagos stated that he expected the condition to deteriorate over the following two years and to affect his patient for at least that period.  Dr Hagos also indicated that Mr Sammut suffers from coronary artery disease for which he takes medication.  The effect of the condition on Mr Sammut’s ability to function over the next two years   was uncertain.  Dr Hagos stated that Mr Sammut also suffered from HT (hypertension), high cholesterol and dyspeptic problems for which he took medication.  However, it was expected that there would be significant improvement in these conditions.

14.     Dr Thuy Le, Consultant Physician & Cardiologist, in a report to Dr Hagos dated 13 May 2004, indicated that Mr Sammut has hypertension, hypercholesterolaemia and a strong family history of ischaemic heart disease.  She indicated that, on examination, Mr Sammut had no symptoms of chest pain or shortness of breath on exertion and that his blood pressure was normal as was his respiratory examination.  His cholesterol was mildly elevated.  Dr Le was of the opinion that if he develops further chest pain… a coronary angiogram should be arranged.

15.     In the letter dated 31 January 2005 refusing DSP, the Centrelink delegate advised Mr Sammut that he had been assigned impairment ratings of 10 points (under the Impairment Tables) for osteoarthritis of both knees but no points for his other conditions.

16.     Mr Sammut lodged a fresh claim for DSP on 16 August 2005, which Centrelink rejected on 14 September 2005.  That claim is not the subject of this review.     

17.     Dr Hagos provided a treating doctor’s report to Centrelink dated 27 July 2005.  His report described Mr Sammut’s medical condition as bad OA of R & L knees.  He also indicated Mr Sammut suffered from anterior chest pain which he presumptively diagnosed as possible coronary artery disease.  The chest pain was on and off, and at times it is bad enough to require treatment.  Dr Hagos indicated that a specialist review was planned.  There were also other conditions that caused the applicant pain and stiffness but there was no indication as to whether these conditions were expected to improve. 

18.     Dr L Naumoski of HSA assessed Mr Sammut at Centrelink’s request in relation to the fresh claim.  In a report dated 1 September 2005, Dr Naumoski ended the Justification of Assessment with the following paragraph:

On the provided evidence he is assessed as temporarily unfit for work for the next 6 months, after which period he needs to be reassessed, if still in need of benefit.  The chest pain diagnosis needs to be clarified, since the TDR was contradicting in this regard.  The examination proved no major functional impairment at present.  The evidence is consistent with satisfying level of functioning.  Barriers and interventions have been considered.

19.     At the hearing Mr Sammut provided details of a booking made for a coronary angioplasty for 17 June 2005 at The Royal Melbourne Hospital.  Mr Sammut said that he had decided not to proceed with the coronary angioplasty.  He said that it  now appears that the pains he felt are likely to have been the result of his spinal problems rather than heart problems.  He also referred to his hiatus hernia and the treatment he has for that.  He has been told it is not appropriate to have surgery and manages with a changed diet and medication.  He also tendered a copy of a report describing the result of x-rays of his spine and shoulder provided by Dr P Lau to Dr Hagos on 31 May 2005.  Dr Lau’s conclusion was as follows:

1.    Moderate cervical, mild to moderate thoracic and lumber spondylosis.

2.    Disc space narrowing of the mid cervical levels are identified.  This may indicate underlying disc prolapse.  CT examination of the cervical region can be performed for further assessment.  At the same time, degree of foraminal stenosis can also be further assessed.

3.    Greater than 20% loss of vertebral body height of around T6 and T7 levels is noted. DEXA can be performed to exclude underlying osteoporosis.

4.    Disc space narrowing at L5/S1 level is noted.  This may indicate underlying disc prolapse also.  CT examination of the lumbar spine can be performed for further assessment.

5.    Suspicion of transitional L5.

6.    No acute bony abnormality of the left shoulder region is identified with otherwise normal alignment of the left shoulder region.  If here is clinical suspicion of rotator cuff tendon abnormality, ultrasound examination can be performed for further examination.

CONSIDERATION OF THE ISSUES

20. Section 601 of the Act prescribes an activity test for a person receiving NSA. The activity test is set out in s 541. Certain persons are exempted from the activity test, including those who are incapacitated. Section 603C sets out the circumstances where a person suffering a medical condition may be exempted:

603C(1)   Subject to this Subdivision, a person is not required to satisfy the activity test in respect of a period if:

(a)throughout the period the person is incapacitated for work because of sickness or an accident; and

(b)the incapacity is caused wholly, or virtually wholly, by a medical condition arising from the sickness or accident; and

(c)the incapacity is, or is likely to be, of a temporary nature; and

(d)if this Subdivision had not been enacted and paragraphs 593(1)(b), (c), (d) and (e) were disregarded, the person would qualify for newstart allowance; and

(e)the person has, whether before or after the commencement of this section, given the Secretary a certificate of a medical practitioner, in a form approved by the Secretary, stating:

(i)the medical practitioner's diagnosis; and

(ii)the medical practitioner's prognosis; and

(iii)that the person is incapacitated for work; and

(iv)the period for which the person is incapacitated for work; and

(f)the Secretary is satisfied that the incapacity has not been brought about with a view to obtaining an exemption from the activity test.

603C(2)   In this section:

"work", in relation to a person, means work (whether full-time, part-time, permanent or casual) that:

(a)is of a kind that the person could, in the Secretary's opinion, be reasonably expected to do; and

(b)is for at least 8 hours per week at award wages or above.

21. Section 603C(1)(c) indicates that the medical condition must be temporary. Section 603C(2) states that the temporary medical condition must prevent the NSA recipient from working for at least 8 hours per week. For much of 2004, Mr Sammut’s medical condition was described as temporary in medical certificates. However, the medical certificates he provided from Dr’s Mazzoni and Hagos described his arthritis and other conditions as permanent.  Furthermore, Dr Cheung of HSA was firmly of the view that Mr Sammut could work for at least 8 hours per week, albeit not in the type of work he was previously undertaking.  Therefore, based on the medical evidence, the Tribunal finds that Mr Sammut was not eligible for an exemption from NSA as at 8 December 2004.  Given Dr Naumoski’s opinion in September 2005, that situation may well have been different then and the circumstances may  have changed again since.  However, the Tribunal is only empowered by the legislation to deal with the Centrelink decision regarding the activity test that has been reviewed by an ARO and the SSAT, namely that of 8 December 2004.

22.     Section 94 of the Act sets out the criteria for a person to qualify for DSP. 

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;

…

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….

23. The Impairment Tables are set out in Schedule 1B of the Act. The Introduction to Schedule 1B states that:

…

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.

…

24. When deciding whether a person qualifies for DSP, the decision maker also needs to take into account the provisions of clause 4(1) of Schedule 2 to the Social Security Administration Act 1999. Clause 4(1) allows a person who does not qualify for DSP at the date of application to do so within a further 13 weeks. Therefore, in this case, the Tribunal must consider whether Mr Sammut qualified for the DSP either on 28 January 2005 or at a date before 29 April 2005 (the relevant period).

25.     The Tribunal accepts that Mr Sammut suffered from a number of medical conditions at the time he applied for DSP.  The Tribunal also accepts that some of his conditions were already permanent during the relevant period, namely the osteoarthritis of both knees.  The Tribunal concurs with earlier decision makers that an assignment of 10 points under the Impairment Tables to the impairment caused by osteoarthritis is appropriate.  However, the doctors’ reports during the relevant period indicate that not all the conditions had been treated and stabilised at that time.  Dr Le, prior to the relevant period, recommended a coronary angiogram if Mr Sammut developed further chest pain.  Dr Hagos, in his report of 29 December 2004, indicated that it was uncertain what the effect of the coronary artery disease suffered by the applicant would be over the following two years.  Dr Lau, in his report to Dr Hagos of 31 May 2005, recommended that further investigations be undertaken to assess the underlying causes for the conditions observed in the X-rays undertaken on 30 May 2005.  In his report of 27 July 2005, some four months after the expiry of the relevant period, Dr Hagos indicated that his diagnosis of possible coronary artery disease was presumptive and that the effect of the condition on Mr Sammut’s ability to function would fluctuate.  Dr Naumoski in his report of 1 September 2005 indicated further investigations were underway through a cardiologist.  Dr Naumoski also stated that further investigations into spinal and shoulder conditions were also required.  Conditions such as hiatus hernia were not causing functional impairment at that time.  

26.     Based on the documentary evidence and the oral evidence of Mr Sammut, the Tribunal finds that his coronary and spinal conditions had not been fully treated and stabilised during the relevant period.  Therefore, the Tribunal is unable to assign a rating for these conditions under the Impairment Tables for the relevant period.    

27. Consequently, during the relevant period, Mr Sammut did not have an impairment rating of 20 points or more under the Impairment Tables. As a result, he does not satisfy s 94(1)(b) of the Act and cannot satisfy s 94(1). In the circumstances it is not necessary to consider whether Mr Sammut satisfies s 94(2). The decision to refuse the claim for DSP was correct.

DECISION

28.     The Tribunal affirms the decisions under review.

I certify that the twenty-eight (28) preceding paragraphs are a true copy of the reasons for the decision herein of

Regina Perton, Member

(sgd)       Elite Aloni

Clerk

Date of Hearing:  16 January 2006

Date of Decision:  24 January 2006
Advocate for applicant:                 Self‑represented
Advocate for respondent:             Mr David Perdon, Centrelink