Spehar and Secretary, Department of Family and Community Services

[2005] AATA 225

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 225

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2004/761

GENERAL ADMINISTRATIVE DIVISION		)
Re		DINKO SPEHAR

Applicant

And SECRETARY, DEPARTMENT
OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Ms M J Carstairs, Member

Date17 March 2005

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

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

M J Carstairs
  Member

CATCHWORDS

SOCIAL SECURITY - disability support pension - whether applicant has physical, intellectual or psychiatric impairment - whether applicant has impairment rating of 20 points or more.

Social Security Act 1991 s94, Schedule 1B

Social Security (Administration) Act 1999 cl 3, 4, Schedule 2

Re Tlonan and Secretary Department of Social Security (1997) 24 AAR 467
Re Secretary, Department of Social Security and Dyer (1998) 51 ALD 190

REASONS FOR DECISION

17 March 2005   Ms M J Carstairs, Member

1.      This is an application by Mr Dinko Spehar (the applicant) for review of a decision made by Centrelink and affirmed by the Social Security Appeals Tribunal (the SSAT) on 25 August 2004 that the applicant was not qualified for payment of disability support pension.

2.      At the hearing the applicant represented himself.  The respondent was represented by its advocate, Ms S Oliver.

3. The Tribunal had before it the documents lodged under s37 of the Administrative Appeals Tribunal Act (1975) numbered T1-T16 as well as exhibits marked A1 for the applicant and R1 for the respondent.

BACKGROUND

4.      The applicant is aged forty-nine.  He came to Australia from Yugoslavia in 1970.  He has worked primarily in the food industry as a baker, pastry cook and restaurant owner/manager.

5.      The applicant sustained severe burns in a petrol explosion on 1 January 1997.  He was hospitalised for one month and wore a full body burns suit for some further two years.

6.      On 26 February 2004 the applicant claimed disability support pension.  His claim was rejected by a Centrelink delegate and by the SSAT.

EVIDENCE

7.       In his claim form the applicant referred to his medical conditions as 49% burns, torn ligament in left knee, and depression.  The applicant set out in that claim, where questions were asked that related to his functional capacities, that he sometimes has difficulty sitting, standing, driving a car or using public transport, always has difficulty bending or lifting but has no problem reading, writing, understanding instructions, interacting with others, remembering, operating everyday appliances, or caring for himself.

8.      The applicant worked full-time as a pastry chef at Taylor and Sons from March 1999 to January 2000.  He then managed a restaurant in partnership with his wife during 2000.  This was followed by work as a baker for two months in 2001/2002 (T5).  He obtained part-time casual work averaging about 10 hours per fortnight at Loganlea Bakery during 2003.

9.       In his oral evidence the applicant said that after the burns injury he was keen to recommence work as soon as possible.  However he found when he worked at Taylor and Sons that he experienced cramping as well as sweating, even though he was not working near ovens.  He said that he experiences cramps after any physical activity regardless of the heat of the surrounding environment.  It takes a while to recover from the cramping he said, and this is why the doctor recommends that he have breaks every hour.  

10.     The applicant said that he has a strong work ethic.  He said he comes from three generations of bakers and he knows no other work.  He referred to his lack of experience using computers and said his age was an impediment to retraining.  In terms of what he is able to do at home, he said that he can undertake tasks such as cleaning, cooking and shopping, and essentially is able to do everything at home because he stops and rests if he becomes overheated.  He does not have air-conditioning either in his home or in his car.  He said that on hot days he sits in the shade under the hose.  He drinks about sixteen bottles of water per day to cope with his reduced ability to maintain his body temperature.

11.     In a report dated 17 March 2004 (T6) the applicant’s treating doctor, Dr A Reynolds, who has treated the applicant since 1993, stated that the applicant had skin grafts to his arms and legs, which resulted in limited sweating in these areas of his body but excessive sweating from areas unaffected by grafts.  He also had poor tolerance of heat and experiences cramps.  She stated that she considered the applicant now was unsuited to the food preparation industry.

12.     Dr Reynolds also stated that the applicant suffered a reactive depression due to his marriage break-up and business problems, as well as ongoing legal problems.  She said that as a result he had poor concentration and motivation, experienced mood swings, fatigue and insomnia.  However, Dr Reynolds considered the applicant’s symptoms of depression would significantly improve with treatment and would only persist for 3 to 24 months.

13.     In an affidavit dated 25 October 2002 (exhibit A1) Dr Reynolds stated that apart from sustaining burns the applicant had an allergy to epoxy resins and could not work in the boat industry.  She stated that his body cannot heat and cool itself.

14.     In a medical report dated 16 April 2004 (T7) Dr G S Pillay, medical practitioner with Health Services Australia, stated that the applicant’s burns and skin grafts resulted in destruction of sweat glands, and he rated the applicant’s condition at 10 points under Table 20 which is a table assigning ratings for a range of permanent miscellaneous conditions.

15.      The description at 10 impairment points reads as follows:

Mild to moderate symptoms which are irritating or unpleasant but which rarely prevent completion of any activity.  Symptoms may cause loss of efficiency in daily activities but minimal interference performing or persisting with work-related tasks.  There is minimal effect/impact on work attendance.

16.     In oral evidence Dr Pillay said that he stood by his rating of 10 points because he considered that if the applicant were working in suitable employment in a controlled temperature environment he would experience minimal interference with performing work-related tasks.   Dr Pillay said that he took into account when rating the applicant that he had had operated his own restaurant business after sustaining the burns injury.  Dr Pillay said that he considered that the applicant’s main problem was depression. 

17.     With reference to depression, Dr Pillay noted that the applicant had told him  that after sustaining the burns injury he experienced financial problems.  Marriage break-up and ongoing legal problems followed.  Dr Pillay noted that the applicant sleeps only 4 hours per night and the applicant had said in his oral evidence that his sleep is disturbed by ruminative thoughts.  Dr Pillay considered depression should be treated as temporary for purposes of assigning ratings under the Tables.

18.     Dr Pillay concluded in his written report that the applicant would benefit from vocational assessment and rehabilitation.  In his oral evidence Dr Pillay said that the applicant needs to re-train for light work and for this reason he concluded that the applicant could work 30 hours or more per week in 6-24 months, either with or without further training. 

CONSIDERATION OF THE ISSUES

19. Section 94(1) of the Social Security Act (1991) (the Act) relevantly provides:

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;

...

20.     The applicant submitted that the one who best understood his medical conditions was Dr Reynolds because she had direct knowledge and was involved in his treatment after the accident.  He said that the examination conducted by Dr Pillay was perfunctory and for this reason the Tribunal should prefer the evidence of Dr Reynolds wherever there was disagreement between the doctors.  He said that the important point of disagreement was that Dr Reynolds had answered affirmatively the question posed on the claim form :

Does the patient have .. medical conditions which have a SIGNIFICANT impact on their ability to function (e.g. sit/stand/move, endurance, communication, cognitive function, ability for self care, need for support in activities of daily living)?

21.     He also submitted that Dr Reynolds had stated that he could work only 20 hours per week, and would require 15-20 minute breaks per hour as cooling periods.  On this basis he submitted that Dr Pillay’s conclusion that he had only mild to moderate symptoms that had a minimal impact on work was unsustainable.

22.     Ms Oliver relied upon her Statement of Facts and Contentions (exhibit R1) and said that Dr Pillay’s evidence should be preferred in the assignment of a rating to the condition.  She submitted that the applicant’s evidence confirmed that there would be minimal impact of his condition if he were in suitable work as described by Dr Pillay.   In regard to the applicant’s depression, she said that this was a condition that Dr Reynolds said would significantly improve within two years.  

23.     The Tribunal reached a decision taking into account the oral and documentary evidence and the submissions made at the hearing.  The Introduction to the Tables for the Assessment of Work-Related Impairment for Disability Support Pension in Schedule 1B of the Act provides that a rating may only be given to a condition that has been treated and is permanent.  The Introduction makes plain that in considering whether a condition is fully diagnosed, treated and stabilised, account must be taken of what treatment or rehabilitation has occurred; whether treatment is still continuing; and whether treatment is likely to lead to significant functional improvement within the next 2 years. 

24. On the basis of Dr Reynolds’ report, the applicant’s reactive depression falls into the category of a medical condition that is in treatment and where the medical practitioner expects improvement to result. This question of whether a condition can be considered permanent, like others posed when assessing qualification for disability support pension, must be considered at or about the time of the claim: (clauses 3 and 4 of Schedule 2 of the Social Security (Administration) Act 1999 and Re Tlonan and Secretary Department of Social Security (1997) 24 AAR 467; Re Secretary, Department of Social Security and Dyer (1998) 51 ALD 190).

25.     The Tribunal was satisfied that the applicant’s reactive depression could not be rated under the Tables as Dr Reynolds’ medical report shows that the condition at or about the time of his claim in March 2004 could not be considered permanent.  Only permanent conditions may be rated under the Tables.

26.     In regard to the burns injury there was no dispute in the medical evidence that the condition is permanent in that it has stabilised and all treatment has been carried out.  The Tables can be applied to the condition and the choices would be to rate the condition under Table 18 for Skin Disorders or Table 20 for Miscellaneous Conditions, which has been used in the assessment by Dr Pillay, or, in a relevant case, under both. 

27.     After consideration of the applicant’s evidence and the medical evidence, the Tribunal was satisfied that the applicant’s condition is most appropriately rated under Table 20 as this Table better allows for the functional impact of the injury.  The Tribunal was satisfied that an additional rating under Table 18 was not warranted as this would result in double-counting of a condition. 

28.     The Tables assess the severity of the limitations that a medical condition imposes on a person’s ability to work.  The Tables do not assess the limitations on other aspects of life or on activities of daily living even though these aspects are taken into account in making an assessment of the impact of a condition on a person’s ability to work.  The Tribunal agrees with the applicant that Dr Reynolds considered that the burns injury had a significant impact on his ability to function.  It can be inferred from Dr Reynolds’ information provided on the claim form that she considered both the burns injury and the depression fell into that category, that is, having a significant impact on the applicant’s ability to function.

29.     However, Dr Reynolds did not assign a rating under the Tables, and her views on an appropriate rating for the applicant cannot be inferred merely from that one answer on the claim form.  The question that she answered was addressed to the significance of the impact on the applicant’s functioning in daily living.

30.     The applicant’s evidence was that he was able to undertake activities at home without any real limitations.  He stated on his claim form that he had no problems with activities that would generally fall under the heading of activities of daily living.  His strongly identified limitations were with lifting and carrying and he pointed to his frequent problems with sleep.  From the documentary materials and from the applicant’s evidence he has been able to secure employment in bakeries and in restaurants between 1999 and 2003.  From his evidence the most suitable position was that as manager of his restaurant business.  On the applicant’s evidence the reason why that venture ceased was because of problems arising from the introduction of capital gains tax.  

31.     The physical problems (such as with sweating and cramps) that arose for the applicant when working after he sustained the burns injury are related to his continued efforts to remain in the trade that he has known all his life and which is now clearly unsuitable work.  The test for qualification for disability support pension, however, is not limited to the work that a person has previously undertaken.  Likewise, it is work in the wider sense that is addressed under the Tables for assigning impairment ratings. 

32.     Turning to the appropriate rating under Table 20, the Tribunal agrees with the applicant that the rating of 10 points insufficiently takes account of the impact of the condition on his ability to participate in work.   When speaking of work the words describing a rating of 10 under Table 20 refer to minimal impact on work attendance, and minimal impact on work-related tasks.  

33.     It is clear on the applicant’s evidence and from medical reports that the applicant would be affected by the burns injury in getting to and from work and in participating in work.  The applicant is affected by his condition when getting to and from work, because of his problem with overheating.   This would mean there are limits on the forms of travel he could use.  He is limited by needing to wear clothing that covers his skin grafts, which he said are disfiguring.  The applicant must drink copious amounts of water to compensate for his excessive sweating.  His doctor recommends that he have rest periods of 15-20 minutes per hour especially in hot environments.  These restrictions, in addition to the other restrictions, including that the applicant can do no physical work and must work preferably in an air-conditioned environment, significantly limit the kind of work he can do and where it can take place, compared with a person without that impairment.  Taking into account all these matters the Tribunal was satisfied that there is more than minimal impact on the applicant’s capacity for work. 

34.     The Tribunal was satisfied that the rating at the level of 15 points under Table 20 more adequately takes account of the severity of the functional loss for work-related tasks.  The rating level of 15 points provides:

Moderate to severe symptoms which are more distressing but prevent few everyday activities.  Self-care is unaffected and independence is retained.  Symptoms may have mild to moderate impact on ability to perform or persist with work-related tasks and/or attend work.  Full-time work would still be possible.

35.     The Tribunal was satisfied that the applicant was capable of working for thirty hours per week in light skilled work in a suitable environment.  The Tribunal accepts Dr Pillay’s evidence on this and agrees that the applicant needs to be re-trained to that work.  His work history since he sustained the burns injury supports that view, particularly the self-employment in the restaurant where his role was more that of managing others than carrying out the cooking and other physical tasks himself. 

36.     Therefore, the Tribunal was satisfied that the applicant’s burns injury attracts a rating of 15 points under Table 20. 

37. The Tribunal therefore is satisfied that, at the time of the claim, in March 2004, the applicant did not meet the level of impairment necessary for disability support pension, as set out in s94(1)(b) of the Act, which requires that a person have an impairment rating of 20 points or more. As the applicant did not meet the requirements of s94(1)(b) of the Act, the Tribunal did not go on to consider whether the applicant had a continuing inability to work, as also required for qualification for this pension under s94.

DECISION

38.     The Tribunal affirms the decision under review.

I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Ms M J Carstairs, Member

Signed:         Camille Banks
  Associate

Date/s of Hearing  14 March 2005
Date of Decision  17 March 2005  
The applicant represented himself             
For the respondent  Ms S Oliver, Advocate