Spiteri and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2011] AATA 656

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 656

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/5338

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		RICHARD SPITERI

Applicant

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

Respondent

DECISION

Tribunal Miss E A Shanahan, Member

Date22 September 2011

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

[sgd] E A Shanahan

Member

SOCIAL SECURITY – disability support pension – impairment ratings – failure to satisfy section 94(1)(b) and (c) of the act – decision affirmed

Social Security Act 1991 – 91(1)(b),(c)

REASONS FOR DECISION

22 September 2011 MISS E A SHANAHAN      

1. Mr Spiteri lodged his third claim for the disability support pension (DSP) on 6 May 2010. The claim was rejected on 31 May 2010 after his back condition was assessed at not attracting any impairment points let alone the 20 points required to satisfy s 94(1)(b) of the Social Security Act 1991 (the Act).  Following a requested review of this decision an authorised review officer (ARO) affirmed the decision and further review by the Social Security Appeals Tribunal (SSAT) on 25 November 2010 was unsuccessful in terms of reversing the decision.  Mr Spiteri lodged his application for review by the Administrative Appeals Tribunal on 8 December 2010. 

2.      Mr Spiteri represented himself at the hearing.  Ms Ailsa Bramley, a Centrelink advocate, appeared on behalf of the Respondent.

3.      In addition to the documents filed pursuant to s 37 of the Administrative Appeals Act 1975 (T-documents (Exhibit R1) and Supplementary T-documents (Exhibit R2)), the Respondent tendered a report from Dr George Kong, Ophthalmology Registrar, dated 11 May 2011 (Exhibit R3) and a report from Dr Nathan Pastor, Occupational Health Physician, dated 9 March 2011 (Exhibit R4). 

ISSUE

4.      The issue before the Tribunal is whether Mr Spiteri qualified for the DSP when he lodged his claim or within 13 weeks of that date. 

BACKGROUND TO THE APPLICATION

5.      Mr Spiteri migrated to Australia from Malta in 1972 at the age of 18.  He is a permanent resident but has not sought Australian citizenship.  He left school at 14 and worked in Malta as a labourer.  In Australia Mr Spiteri also worked as a labourer except for approximately one to two years, when he was employed in the manufacturing production line at the Ford Motor Company.  He ceased all work in the late 1990s, prior to his return to Malta for a period of two and a half years.  Since about the year 2000, he has suffered from low back pain limiting his range of movement and preventing him from working as a labourer.

6.      Plain x-rays of the lumbo-sacral spine performed in 2001 revealed slight retro‑subluxation at the L5/S1 spinal level with mild narrowing of the L5/S1 disc space.  Further radiological examinations have not been performed.  Treatment of the back pain has been limited to non-steroidal anti-inflammatory drugs (NSAID’s) and analgesics plus a single short course of physiotherapy.  Mr Spiteri remains symptomatic and restricts his physical activity in accordance with his level of back pain. 

7.      Mr Spiteri has worn eye glasses since he was 10 years old.  He has a family history of visual impairment.  His paternal grandfather was blind and his mother has cataracts.  He has attended the Royal Victorian Eye and Ear Hospital (RVEEH) since 1981, when he was diagnosed with a left retinal detachment.  His retinal detachment was treated with cryotherapy, which resulted in retinal scaring (T-Documents T34, p 113, Exhibit R1).  In May 2005 an extra capsular extraction and lens insertion was performed on the left eye. Since then Mr Spiteri’s central vision in the left eye has been blurred but peripheral vision, to hand movement only, is retained.  Mr Spiteri said in his evidence that if he looked directly at a person their face was a blur. For example, he could not see my facial features with his left eye. 

8.      When last seen at RVEEH, on 14 January 2009, Mr Spiteri was found to have a right eye mild cataract (Exhibit R3) with visual acuity of 6/9 (normal visual acuity is 9/9). He says he has been told he will eventually need a right cataract extraction and lens replacement but he is reluctant to undergo further surgery given the disappointing results following the left eye procedure.  Mr Spiteri has not been reviewed by an ophthalmologist since January 2009 having been told there was no further treatment available for his left eye.  He said he was instructed to return to the Accident and Emergency Department of the hospital should he suffer any acute visual problems.  He still wears glasses but has to remove them to read and when he reads he holds the text close to his face. 

9.      Dr Hussain, Mr Spiteri’s current general practitioner, assessed his vision on 27 January 2011 as attracting 40 impairment points using Table 13 The Tables for the Assessment of Work-Related Impairment for Disability Support Pension in Schedule 1 B of the Act (the Tables) based on a visual acuity of 6/60 in the left eye and 6/18 (aided by glasses) in the right eye.  The Respondent asserts that Dr Hussain’s assessment of the right (good) eye has assumed the right cataract has been operated upon; whereas, according to Table 13, a right eye visual acuity of 6/18 without cataract surgery attracts a rating of 10 points.

10.     Dr Pastor tested Mr Spiteri’s vision on 28 February 2011. He reported that Mr Spiteri was unable to read any letters on the Snellen chart and could only detect hand movements with the left eye.  He found the right eye acuity to be 6/9 with glasses.  These readings are the same as those reported by the RVEEH in January 2009.  In his evidence, Mr Spiteri denied that Dr Pastor had tested his eyesight using the Snellen chart.

11.     Mr Spiteri has reported to the Job Capacity Assessment assessors and to the SSAT that, in addition to his back and eye complaints, he has hypertension, gout, persistent cough and bilateral knee pain more pronounced on the right than the left.  The gout has been controlled with Voltaren and Calgout.  None of the seven reporting doctors appear to have recorded Mr Spiteri’s blood pressure. Several general practitioners attributed the right knee pain to sciatica.  Dr Pastor attributed it to gout. There are no records of any examination of Mr Spiteri’s knees. His current general practitioner has treated the cough with a Ventolin inhaler and oral Solone (a cortisone preparation) without any symptomatic benefit.  Dr Pastor did examine Mr Spiteri’s chest, and on auscultation found a generalised wheeze.

12.     Mr Spiteri is distrustful of the medical profession and wary of any surgical intervention.  He has not been referred to any treating specialist other than those he has seen at RVEEH.  There appears to have been a poor rapport between Mr Spiteri and Dr Pastor.

13.     Mr Spiteri underwent six work capacity assessments between January 2003 and May 2010, all of which have been limited by a paucity of medical data.  The medical conditions considered have varied, with only the back condition (spinal disorder) being common to all.  The assessments dating from 12 June 2008 onward have been Job Capacity Assessments. They have all found that the medical conditions they have assessed have not been fully diagnosed, treated and stabilised and therefore no impairment ratings were attracted under the Tables.  These assessments have also found Mr Spiteri capable of working from 15 to 29 hours per week at light duties such as a cleaner, car park attendant, cash register operator, light process worker or courier.

14.     Mr Spiteri was unable to provide a self-assessment of his current visual acuity.  He said it was certainly no better than at 19 January 2009 but he was not certain if it had deteriorated since that time.

15.     Dr Pastor, who saw Mr Spiteri on 28 February 2011 (Exhibit R4), assigned an impairment rating of 10 points under the Tables for Mr Spiteri’s back condition, based on the reduction in the range of movement of his spine to three quarters of the normal range. 

LEGISLATION

16.     Section 94(1) of the Act defines the eligibility for the DSP as follows:

94Qualification for disability support pension

(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;

(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 ...

SUBMISSIONS

17.     Formal submissions were not made by either party. 

THE TRIBUNAL’S DELIBERATIONS

18.     The Tribunal is required to review the SSAT decision to determine whether Mr Spiteri met the eligibility requirements for the DSP on 6 May 2010 (when his claim was lodged) or within 13 weeks of that date, that is 15 August 2010. 

19.     The Tribunal is satisfied that Mr Spiteri’s lumbo-sacral spinal disorder and his visual conditions are well documented and that he satisfies s 94(1)(a) of the Act.

20.     However, in the period under consideration there was insufficient medical data available to consider these conditions as being fully diagnosed, treated and stabilised. Dr Hussain’s assessment of Mr Spiteri’s visual acuity and the resulting impairment rating was not made until 27 January 2011. Dr Pastor’s assessment and impairment ratings of Mr Spiteri’s visual acuity and his spinal disorder were not undertaken until 28 February 2011. These assessments and opinions were provided outside the period under consideration and cannot be considered retrospectively. Therefore, Mr Spiteri did not satisfy s 94(1)(b) of the Act in the period under consideration and was not eligible for the DSP.

21.     It is therefore not necessary to consider whether he has a continuing incapacity for work.

22.     Since 15 August 2010 more medical data has become available.  Dr Pastor has opined that Mr Spiteri’s spinal disorder is permanent, fully diagnosed, treated and stable and attracts an impairment rating of 10 points.  Reports from the RVEEH have clarified the status of Mr Spiteri’s vision as of 14 January 2009. Based on the then assessment of his right eye, the better eye, no impairment rating would be attracted for this condition.  It is now 32 months since Mr Spiteri’s vision has been assessed by a qualified ophthalmologist.  Dr Pastor assessed Mr Spiteri’s right eye vision at 6/9 with glasses. Dr Hussain’s assessment seems erroneous as a 40 point impairment rating would only be attracted if Mr Spiteri had undergone a cataract operation on the right eye and he has not.  Even if Mr Spiteri’s right eye visual acuity of 6/18 is correct, the maximum impairment point rating would, as of 27 January 2011 be 10 points under the Tables; not 40 points as reported. 

23.     Mr Spiteri has been advised to attend the RVEEH as soon as possible for reassessment of his right eye visual acuity. Should this reveal that the sight in his right eye has deteriorated he should lodge a new claim for the DSP. 

24.     The Tribunal affirms the decision of the SSAT dated 16 November 2010. 

I certify that the twenty-four [24] preceding paragraphs are a true copy of the reasons for the decision herein of
Miss E A Shanahan, Member

Signed:         Dianne Eva

Clerk

Dates of Hearing  6 September 2011
Date of Decision  22 September 2011
Advocate for Applicant              Self-Represented

Advocate for Respondent         Ms Ailsa Bramley, Centrelink –
  Program Litigation & Review Branch