SIMO PRERADOVIC and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES & INDIGENOUS AFFAIRS

[2009] AATA 407

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 407

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/4668

GENERAL ADMINISTRATIVE DIVISION		)
Re		SIMO PRERADOVIC

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES & INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Dr P McDermott, RFD, Senior Member

Date4 June 2009

PlaceBrisbane

Decision The Tribunal affirms the decision under review.  

...............[Sgd]...............................

Senior Member

CATCHWORDS

SOCIAL SECURITY – Pensions, benefits and allowances – No impairment of 20 points or more under the Impairment Tables – Applicant not qualified for disability support pension – Decision affirmed.

Social Security Act 1991 (Cth), s 94, Schedule 1B

Social Security (Administration) Act 1999 (Cth), Schedule 2, clause 4

Secretary, Department of Employment and Workplace Relations v Parry [2007] FCA 1606

REASONS FOR DECISION

4 June 2009 Dr P McDermott, RFD, Senior Member  

INTRODUCTION

1.      Mr Simo Preradovic (the applicant) made a claim for disability support pension in 2008.  His application was rejected by Centrelink.  In these proceedings, I have to consider whether the applicant was entitled when he made the claim (or within 13 weeks of that date) to disability support pension.

HISTORY OF THE MATTER

2.      On 14 February 2008, the applicant lodged a claim for disability support pension.  He also lodged a treating doctor’s report, which was completed by Dr Sam Ioannidis.

3. On 22 February 2008, a job capacity assessment report was completed by Mission Australia in Maroochydore. Schedule 1B of the Social Security Act 1991 (“the Act”) contains tables (“Impairment Tables”) for the assessment of work-related impairment for disability support pension.  The report by Mission Australia concluded that the applicant suffered from the conditions of lower limb deficiencies, depression, diabetes (non insulin dependent) and hypertension.  Although those conditions were said to be permanent, the depression, diabetes and hypertension were each given a NIL rating under the Impairment Tables, on the basis that they had little impact on the applicant’s ability to function.  The lower limb deficiencies were given a rating of 10 points under Impairment Table 4.  The applicant was assessed as having a future capacity for work within two years (with intervention) of 8 to 14 hours per week.

4.      On 28 March 2008, Centrelink rejected the applicant’s claim for disability support pension.  The reason provided for this decision was that the applicant did not have an impairment rating of 20 points or more under the Impairment Tables.  On 2 April 2008, the applicant sought review of the decision.  On 4 April 2008, the original decision maker affirmed the decision.  On 4 April 2008, the applicant sought further review by an Authorised Review Officer, who on 29 April 2008 affirmed the decision to reject the applicant’s claim.

5.      On 5 August 2008, the applicant lodged an application for review by the Social Security Appeals Tribunal.  On 4 September 2008, that Tribunal affirmed the decision to reject the claim.

6.      On 7 October 2008, the applicant lodged a request for review by this Tribunal.  On 13 November 2008, the applicant filed a medical report by Dr Todd Cash dated 30 October 2008.

7.      On 20 January 2009, Dr Cash completed a further medical report regarding the applicant’s conditions.

8.      On 3 February 2009, another job capacity assessment report was completed taking into account the new medical evidence from Dr Cash.  The report discloses that the job capacity assessor contacted Dr Cash to discuss the conditions of the applicant.  The report contains the conclusion that the applicant had a total impairment rating of 10 points and a future capacity for work within two years (with or without intervention) of 15 to 22 hours per week.  The report also contained the conclusion that the applicant’s depression could not be given a rating as it was not fully treated and stabilised.

QUALIFICATIONS FOR DISABILITY SUPPORT PENSION

9. Section 94(1) of the Act provides that 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 …”.

10.     At the hearing, I was assured that the applicant was not a person who was participating in the supported wage system.

11. I should also mention that the applicant would have to satisfy the requirements of s 94(1) of the Act at the date of claim or within 13 weeks of that date: see clause 4(1) of Schedule 2 of the Social Security (Administration) Act 1999.  This qualifying period is between 14 February 2008 and 15 May 2008.

ISSUES

12. I have to consider whether the applicant, at the date of claim or within 13 weeks, had an impairment of 20 points, or more, under the Impairment Tables. He must also have a “continuing inability to work” as defined by s 94(2) of the Act.

CONSIDERATION

13.     The Secretary conceded that the applicant had a physical, intellectual or psychiatric impairment during the qualifying period, the impairment being a lower limb deficiency.  I am satisfied this concession was properly made.  The applicant gave evidence before me, which I accept, that his right leg was injured by a fence stake when he fell out of a tree.  In his treating doctor’s report, lodged with Centrelink on 14 February 2008, Doctor Ioannidis verified that this injury had occurred.

14.     I will next give consideration to whether the applicant has an impairment of 20 points or more under the Impairment Tables.

15. I am bound by a decision of the Federal Court of Australia to bear in mind that cl 4 to 6 of the Introduction to Schedule 1B of the Act (“the Introduction”) set out a number of “mandatory requirements”, which must be considered and satisfied before any impairment rating can be assigned to a condition: Secretary, Department of Employment and Workplace Relations v Parry [2007] FCA 1606.

16. Clause 4 of the Introduction states that a rating is only to be assigned after a comprehensive history and examination.

17. Clause 5 of the Introduction requires the condition to be permanent before a rating can be attributed under the Impairment Tables and further states that:

“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 … 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”.

18. Clause 6 of the Introduction explains that:

“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”.

19. Having regard to the Introduction, I will consider each of the conditions of the applicant.

Diabetes – Non Insulin Dependent

20.     The Secretary has conceded that the diabetes condition is fully diagnosed, treated and stabilised.  I can therefore assign a rating for the condition.  I consider that the appropriate rating for the condition is NIL under Impairment Table 19, as the condition is adequately controlled with medication. The treating doctor’s report completed by Dr Ioannidis does not indicate that the condition has any impact: see T19, folio 101.

Hypertension

21.     The Secretary has conceded that the hypertension condition is fully diagnosed, treated and stabilised.  I consider that the appropriate rating for the applicant’s hypertension is NIL under Impairment Table 20.  Dr Ioannidis, in his treating doctor’s report, states that the condition has a “nil” impact: T19, folio 101.  The applicant mentioned in his evidence that his doctor does not check his blood pressure. I am satisfied that the condition is adequately controlled with medication.

Lower Limb Deficiency

22.     The Secretary has conceded that the lower limb deficiency is fully diagnosed, treated and stabilised.  Dr Ioannidis mentioned in his treating doctor’s report that in 1994 the stake was removed from the applicant’s leg and that a nerve graft operation was performed: T19, folio 99.  It appears from an earlier claim that this accident in fact occurred in 1996, and that the nerve graft operation occurred in 1997: see T7, folios 39 to 40.  Dr Ioannidis stated that no further treatment was planned: T19, folio 99.  It is therefore appropriate for me to assign a rating to the lower limb condition.

23.     I consider that Impairment Table 4, headed “Function of the lower limbs”, is the appropriate table to assess lower limb function.  I appreciate that the applicant experiences pain from this condition.  There is material before me that the applicant can walk for 500 metres: T2, folio 5.  In cross-examination, the applicant stated that he can walk to a creek which is half a kilometre away from his home.  The applicant, when interviewed by one of the job capacity assessors, stated that he could walk up to 500 metres at a time: T21, folio 106.  This interview occurred on 22 February 2008, being within the qualifying period of 14 February 2008 to 15 May 2008.  I note that in his evidence before me, the applicant stated that when walking he would rest before walking again.  In my view, these facts accord with the descriptor for the 10 point rating under Impairment Table 4, which states: “Pain or claudication restricts walking to 250-500m or less, at a slow to moderate pace (4km/h).  Can walk further after resting”.

24.     I accordingly assign a rating of 10 points under Impairment Table 4 for this condition.

Depression

25.     In his treating doctor’s report, Dr Ioannidis did not list any treatment for the depression condition and he inserted a question mark in that part of the report related to “Impact on ability to function”.  I have taken the view that the depression condition cannot be assigned a rating as it was not fully diagnosed, treated and stabilised in the qualifying period between 14 February 2008 and 15 May 2008.

26.     There is evidence before me that the depression condition is not fully treated.  There is some hope that the depression condition will improve with medication.  In his report of 30 October 2008, Dr Cash recommended that the applicant commence use of antidepressants and decrease his alcohol intake.  In his report dated 20 January 2009, Dr Cash expressed the view that with the trial of another antidepressant “some improvement in his depressive symptoms can be achieved”.  It is on the basis of this evidence from Dr Cash that I have concluded that I cannot give a rating for this condition.

CONCLUSION

27.     In light of my finding that the applicant does not have an impairment of 20 points or more under the Impairment Tables, it is my conclusion that he was not entitled to receive disability support pension in the qualifying period between 14 February 2008 and 15 May 2008.

DECISION

28.     I affirm the decision under review.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member

Signed:...................[Sgd]...........................................................
           Emily Clarke, Associate

Date of Hearing  26 May 2009
Date of Decision  4 June 2009
Applicant was self-represented  
Solicitor for the Respondent     Joe Guthrie, Departmental Advocate