Sime Acevski and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2012] AATA 685

[2012] AATA 685

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2011/4985
Re	Sime Acevski
APPLICANT
And	Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT

DECISION

Tribunal	Mr Conrad Ermert, Member
Date of decision	5 October 2012
Place	Melbourne

The Tribunal affirms the decision under review.

[sgd]..................................................................

Mr Conrad Ermert, Member

CATCHWORDS  

Disability Support Pension - workplace injuries - assessment of impairments - Impairment Tables - whether twenty points - decision affirmed

LEGISLATION  

Social Security Act 1991

Social Security (Administration) Act 1999

Administrative Appeals Tribunal Act 1975

REASONS FOR DECISION

Mr Conrad Ermert, Member

5 October 2012

INTRODUCTION

1. Mr Acevski, the applicant, came to Australia from Macedonia in 1987.  In June 1988 he was involved in a work accident and suffered an injury to his right leg.  He subsequently returned to work. However, in 1992 he suffered another work injury; this time to his right shoulder and forearm (dominant limb).  Despite surgery, he was unable to return to work and subsequently received a Workcover payment.

2. On 10 June 2011 Mr Acevski lodged a claim for a disability support pension (DSP) with Centrelink.  Centrelink provides services for the Department of Families, Housing, Community Services and Indigenous Affairs (the respondent). A Centrelink officer rejected his claim as his impairment rating was assessed as being below 20 points under the Schedule 1B  Tables for the Assessment of Work-related Impairment for disability support pension (the Impairment Tables) of the Social Security Act 1991 as it then was(the Act).  Mr Acevski therefore did not satisfy the relevant provisions of the Act  On 2 September 2011 a Centrelink authorised review officer (ARO) affirmed the Centrelink officer’s decision.  Mr Acevski sought review of the ARO’s decision by the Social Security Appeals Tribunal (SSAT). On 10 November 2011 the SSAT affirmed the ARO’s decision. .

3. On 22 November 2011 Mr Acevski lodged an application for review of the SSAT decision with this Tribunal.

THE HEARING

1. Mr Acevski attended the hearing and gave evidence (under affirmation) with the assistance of an interpreter in the Macedonian language. Ms Ailsa Bramley, an advocate from the Centrelink Program Litigation and Review Branch, represented the Secretary. I took into evidence a statutory declaration sworn by Mr Acevski on 19 April 2012 (Exhibit A1) and the documents provided pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T‑documents and Supplementary T‑documents ST1 and ST2).

THE ISSUE

1. The issue to be decided is whether Mr Acevski is qualified to receive DSP.  This in turn requires a decision as to whether Mr Acevski has:

• impairments as defined in the Act, and

• the impairments are fully diagnosed, treated and stabilised, and

• the ratings for those impairments amount to  at least TWENTY points under the Impairment Tables, and

• Mr Acevski has a continuing inability to work for at least 15 hours per week within the next two years.

THE EVIDENCE

1. Mr Acevski gave evidence of his workplace injuries to his right shoulder and forearm and right leg.  He said he tried everything to return to work but it was impossible for him.  During that time he lived with his wife.  As they had some income, Mr Acevski did not apply for a pension.  In 2007 Mr Acevski built a new house.  In 2008 he and his wife divorced.  Mr Acevski sold the house and went to Macedonia, where his mother was in poor health.  Mr Acevski stayed there for three years, returning on 28 May 2011. 

2. On his return, Mr Acevski applied for DSP  as he had no income.  He could not work and he lived with his brother.  Mr Acevski shared rented accommodation for a period but is now living with his brother again, rent-free.  Mr Acevski said that he could not afford to go to doctors or specialists for his conditions as he did not have enough money. 

3. In answer to questions from Ms Bramley, Mr Acevski said:

   ·he does not have to do housework as he is looked after by the women in the house;

   ·he can dress himself, but slowly;

   ·he can hold a cup in his right hand but no weight;

   ·he can drive by steering with his left hand;

   ·he can walk for about 200 to 500 metres but then has to stop and rest;

   ·he can stand for about an hour; and

   ·the pains in his arm and leg occur every time the weather is changing.

4. Mr Acevski told the Tribunal that he became breathless from increased activity and had a stent inserted in an artery.  He produced a number of medications for heart conditions, hypertension and an ear condition.  Ms Bramley asked why these conditions were not included in the medical reports from Drs Pope and Tadros, Mr Acevski’s treating general practitioners.  Mr Acevski thought he had mentioned the conditions to Dr Pope.  He said that he and Dr Tadros could not understand each other very well as there was no interpreter present at the time. A woman at the surgery tried to help but he could not tell if she was accurate with her translations.

5. In his submissions, Mr Acevski re-iterated that he was not able to work. Mr Acevski said that he would work if he could because he had relatives who could help him with employment.  He repeated that he had no other income.

6. Ms Bramley referred to the respondent’s written Statement of Facts and Contentions.  She submitted that the period relevant to this assessment was from 30 May 2011 to 29 August 2011 (the period in question).  Ms Bramley said that the respondent accepted that Mr Acevski’s arm and leg conditions were fully diagnosed, treated and stabilised. 

7. In regard to the arm condition, Ms Bramley noted Mr Acevski’s evidence of reduced range of movement and an ability to hold a cup or glass, but no weight.  She referred to a Job Capacity Assessment Report dated 20 July 2011 (the JCA report) which recorded a weakness in the right forearm and wrist and difficulty with lifting heavy objects.  Ms Bramley said that the respondent accepted the report’s recommendation of a rating of TEN under Table 3 of the Impairment Tables. 

8. In regard to the leg condition, Ms Bramley referred to the JCA report which recorded an ability to walk for one hour and noted that this was confirmed in Mr Acevski’s statutory declaration (Exhibit A1).  Ms Bramley submitted that this would attract a rating of NIL under Table 4 of the Impairment Tables. 

9. Ms Bramley referred to the other conditions included in a report by Dr Pope dated 23 April 2012, namely coronary artery disease, hypertension, hypercholest [sic]. In his report, Dr Pope noted that the other conditions are well managed and caused minimal or limited impact on Mr Acevski’s ability to function.  Accordingly, she said they attracted a NIL impairment rating  Ms Bramley also pointed out that the other conditions were not listed as conditions within the period in question.  She noted that there was no medical evidence in support of the ear condition mentioned in Mr Acevski’s evidence and the stomach condition mentioned in his statutory declaration.  Ms Bramley contended that these conditions could not be included for assessment purposes.

10. Ms Bramley submitted that as Mr Acevski’s conditions did not attract an impairment rating of TWENTY points under the Impairment Tables, he did not qualify for DSP under section 94(1) of the Act.

11. Ms Bramley submitted further, that if the Tribunal were to find that Mr Acevski’s conditions did attract an impairment rating of TWENTY points, Mr Acevski  still did not qualify for DSP during the period in question as he had a continuing ability to work, contrary to the requirements of section 94(1)(c)(i) of the Act.  Ms Bramley supported this submission by reference to the JCA report, which assessed Mr Acevski as having a capacity for work of 15 to 22 hours per week with intervention. 

CONSIDERATION

The Period in Question

1. The legislation relevant to the issue of the period in question is contained in section 13 and Schedule 2 subclause 4(1) of the Social Security (Administration) Act 1999 (the Administration Act). In the Secretary’s Statement of Facts and Contentions, Ms Bramley contended that the period in question is from 30 May 2011 to 29 August 2011, being 13 weeks from 30 May 2011 when Mr Acevski first notified Centrelink of his intention to claim DSP. This was not disputed by Mr Acevski. I agree with Ms Bramley’s contention. I find that the period in question is from 30 May 2011 to 29 August 2011.

Qualification for Disability Support Pension

1. Section 94 of the Act details the qualification provision for DSP. It relevantly states:

   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)     if 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 independently of a program of support within the next 2 years; ...

   94(5) In this section:

   ...

   “work” means work:

   (a)that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and

   (b)that exists in Australia, even if not within the person’s locally accessible labour market.

Application of the Impairment Tables as they were in the period in question

1. The Introduction to the Impairment Tables in the Act stated that ratings are only to be assigned to conditions that are fully documented, diagnosed, investigated, treated, and stabilised.  The condition must also be permanent, meaning that the condition will last for more than two years.

2. Medical evidence relevant to the period in question comprises a report by Dr Tadros, dated 5 July 2011, and the JCA report .  I also accept as relevant to the period in question the report by Dr Pope, dated 10 October 2011 . However, I note that Dr Pope only briefly assessed [Mr Acevski’s] capacity without doing a formal impairment assessment. 

3. I will consider each of Mr Acevski’s conditions in turn.

Right Arm Condition

1. The Secretary accepts that this condition is fully diagnosed, treated and stabilised and that a rating can be assigned to the condition from the Impairment Tables.

2. Table 3 of the Impairment Tables sets out the ratings and corresponding criteria for Upper Limb Function.

RATING            CRITERIA

FIVEDemonstrable 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.

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.

FIFTEENDemonstrable 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.

TWENTYDemonstrable 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

THIRTYUnable to use non-dominant upper limb at all.

1. Mr Acevski’s evidence was that he does not do any work around the house; he can hold a cup in his right hand but cannot lift any weight; and that he drives with his left hand. 

2. Dr Tadros described the impact of the condition on Mr Acevski as weak painful right wrist with a reduction of range of movements.  Dr Pope recorded:

   significant wasting of the muscles of his forearm and hand.  His wrist is fused in the neutral position.  His elbow joint had a normal range of movement but flexion and extension was considerably weaker than his left, likely from disuse.  His shoulder movement was reduced, particularly abduction to only 90 degrees. 

3. The Job Capacity Assessment reported:

   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. 

   I note this is the same wording as that used in Table 3 of the Impairment Tables for the rating of TEN impairment points.

4. Ms Bramley stated that the respondent accepts a rating of TEN.  The rating was not challenged by Mr Acevski.

5. The ratings for FIVE points and FIFTEEN points relate to the non-dominant limbs and are not relevant in this case.  Although Dr Pope reports a significant wasting of the muscles of his forearm and hand, he also notes a normal range of movement in the elbow joint and a reduced shoulder movement.  I accept these descriptions as reasonably consistent with Dr Tadros’s description and the findings in the JCA report.

6. After considering all the evidence, I accept the rating recommended in the JCA report as being the most applicable to Mr Acevski during the period in question.  Accordingly, I find that Mr Acevski’s arm condition is correctly assessed at a rating of TEN impairment points.

Right Leg Condition

1. The Secretary accepts that this condition is fully diagnosed, treated and stabilised and that a rating can be assigned to the condition from the Impairment Tables.

2. Table 4 of the Impairment Tables sets out the ratings and corresponding criteria for Function of the Lower Limbs.

RATING       CRITERIA

NILWalks without difficulty on a variety of different terrains and at varying speeds for distances of more than 500m.

TENDemonstrable 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.

TWENTYDemonstrable 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 ...

1. Mr Acevski’s evidence is that he can walk for about 250-500 metres but then he has to stop and rest.  He said also that he can stand for about an hour.  Mr Acevski said also that the pain occurs when the weather is changing. Dr Pope recorded that Mr Acevski

   walked without a limp.  He could not jump normally and he had difficulty standing on his right leg. ... He says he suffers leg pain when he goes on long walks or has to stand for some hours. 

   Dr Tadros reported occasional pain in winter.

2. The Job Capacity Assessment recorded that Mr Acevski:

   Walks without difficulty on a variety of different terrains and at varying speeds for distances of more than 500m. 

3. The only evidence of his walking being restricted to 500 metres or less comes from Mr Acevski himself.  It is not clear from his evidence whether the need to rest was due to his heart or his leg condition.  The objective medical evidence points to an ability to walk without difficulty for more than 500 metres.  I accept the medical evidence and find that the correct rating for Mr Acevski’s right leg condition is NIL.

Other Conditions

1. In his statutory declaration, Mr Acevski refers to a heart condition and a stomach condition in addition to his arm and leg conditions.  In his oral evidence, Mr Acevski spoke of an ear condition as well.  There is no medical evidence relating to the stomach and ear conditions.  Accordingly, they cannot be assessed for a rating under the Impairment Tables. 

2. The heart condition is noted Dr Pope’s report dated 23 April 2012.  This report is well outside the period in question.  In any case, Dr Pope categorises Mr Acevski’s coronary heart disease, hypertension and hypercholest [sic] as being generally well managed and that cause minimal or limited impact on his ability to function.  From this report, were those conditions to be assessed, they would attract NIL impairment points under the relevant tables. 

3. I find that, in the period in question, Mr Acevski had no other conditions which could attract an impairment rating under the Impairment Tables.

4. After considering all the conditions, I find that Mr Acevski’s rateable impairments in the period in question totalled TEN impairment points.  A rating of TEN points did not satisfy the provisions of section 94(1)(b) of the Act.  The provisions of section 94(1) are cumulative.  As Mr Acevski did not meet the requirements of section 94(1)(b), it is not necessary to consider the remaining provisions of the section, including whether Mr Acevski had a continuing inability to work (section94(1)(c)(i)).  Accordingly, I find that Mr Acevski did not satisfy the provisions of section 94(1) of the Act.

DECISION

1. I have found that Mr Acevski did not satisfy the provisions of section 94(1) of the Act.  As a result, I find that Mr Acevski did not qualify for DSP during the period in question.  Accordingly, I affirm the decision under review.

I certify that the preceding 39

(thirty-nine)paragraphs are a true

copy of the reasons for the decision

herein of:

Mr Conrad Ermert, Member.

[sgd]........................................................................

Administrative Officer

Dated:    5 October 2012

Date of hearing  20 September 2012

Applicant  In person

Advocate for the Respondent          Ms Ailsa Bramley, Centrelink Program

Litigation & Review Branch