Stojanovic v Secretary, Department of Employment and Workplace Relations

[2007] FCA 1086

FEDERAL COURT OF AUSTRALIA

Stojanovic v Secretary, Department of Employment and Workplace Relations [2007] FCA 1086

Administrative Appeals Tribunal Act 1975 (Cth), s 44

BORIS STOJANOVIC v SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

NSD624 OF 2007

EMMETT J
6 JULY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD624 OF 2007

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	BORIS STOJANOVIC Applicant
AND:	SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS Respondent

JUDGE:	EMMETT J
DATE OF ORDER:	6 JULY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent’s costs. 

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD624 OF 2007

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	BORIS STOJANOVIC Applicant
AND:	SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS Respondent

JUDGE:	EMMETT J
DATE:	6 JULY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. I have before me a notice of motion for summary dismissal of a proceeding commenced by notice of appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). Under s 44 of that Act a party may appeal to this Court on a question of law from a decision of the Administrative Appeals Tribunal (the Tribunal).

2. In the original notice of appeal filed on 12 April 2007 it was difficult to discern any question of law.  In that part of the form of notice of appeal requiring the statement of the questions of law raised on the appeal there was a discursive criticism of the decision of the Tribunal. When the matter first came before me for directions, it was pointed out to the applicant that the notice of appeal did not identify any question of law.  The applicant was given leave to file an amended notice of appeal, which was then filed on 19 June 2007.  The respondent, the Secretary of the Department of Employment and Workplace Relations (the Secretary), says that the amended notice of appeal also discloses no cause of action in that it does not identify a question of law that would be raised by the appeal.

3. The applicant applied for a disability support pension under the Social Security Act 1991 (Cth) (the Social Security Act). The basis of his claim is chronic back pain causing functional spinal impairment. In its reasons, the Tribunal identified the fundamental issue before it as whether the applicant has a functional impairment that is eligible for a “point rating” under the “Tables for the assessment of work-related impairment for disability support pension”, (the Impairment Tables) in Schedule 1B to the Social Security Act. The Tribunal said that functional impairment point rating of at least twenty points is one of the threshold qualification requirements for receipt of a disability support pension under s 94(1)(b) of that Act. The Social Security Appeals Tribunal, the decision of which was being reviewed by the Tribunal, determined that no point score rating was available because the applicant’s condition had not been fully treated and was not stable. That conclusion was effectively confirmed by the Tribunal, which concluded that the applicant’s diagnosed lumbar condition had not been fully treated and is not fully stabilised.

4. The Impairment Tables are prefaced with an Introduction which governs the way the Impairment Tables are to be applied (the Introduction).  The thrust of the applicant’s complaint, so as far as I have been able to discern it, is that the Administrative Appeals Tribunal ignored some parts of the Introduction.  The grounds stated in the amended notice of appeal are as follows:

   (1)refusal by Administrative Appeal Tribunal to recognise instructing guidelines indicated in Department of Social Security Tables for the Assessment of Work-Related Impairment;

   (2)deliberate false interpretation and false expression of contending specific facts by AAT when determining appeal; and

   (3)rejection by AAT of disclosed medical advice from the applicant’s nominated medical practitioners.

   In the amended notice of appeal no attempt is made to formulate a question of law.  In the original notice of appeal, the essence of the complaint was as follows:

   The appeal decision of the AAT stated I did not complete sufficient physiotherapy treatment to meet criteria of eligibility for disability support pension... This decision conflicted with the diagnosis of my supervising GP who clearly attested I have had sufficient physiotherapy and no longer require further.

   …

   The AAT disregarded the issue of permanency and concentrated on the issue of contended need of physio which is only a secondary degree of law.  My doctor’s diagnosis was completely ignored.

5. Attached to the amended notice of appeal was a written submission by the applicant which is difficult to follow.  It begins by asserting that the decision of the Administrative Appeals Tribunal was “In total refutement of instructing laws indicated in the Social Security Act.”  It then says, relevantly, as follows:

   The major justification for the AAT refusal of my appeal is its opinion that I have not completed sufficient physiotherapy and related treatments to be granted Disability Support Pension.  According to the view of the AAT, physiotherapy and other treatments for an injury are the main and only determinants in adjudicating eligibility of Disability Support Pension.

   …

   In a higher expressed priority the law states that a person’s functional ability in relation to work should be the major determinant in assessing an injury for Disability Support Pension.  This is a clear expressed instruction indicator at the beginning of the tables for assessment of work-related impairment.  The stated notice of this instruction, apparent at the beginning of the attendant guide and in a repeated occurred description clearly indicate for it to be acknowledged as the major determinant in matters of Disability Support Pension.  In rejection of this expressed instruction (ie need for assessment of level of functional capacity), the AAT has based its decision on the capability of a person to perform physiotherapy.  In apprehension of sounding offensive, this seems a stupefying reason to consider in assessment.  The complete judgment of the AAT consists of an exhaustive, complicated and deliberately elaborate 20-page report with no mention at all to the diagnosis issued from the treating medical practitioners I attend.

   …

   Relatedly [sic] I am stating I have complied with the Federal Court criteria of addressing a “question of law” in respect of a matter in order to attain a further contested hearing.  The justification of this request is stated in the fact that the determining law of the AAT hearing, “Schedule 1B, Tables for Assessment of Work-related Impairment”, Social Security Act 1991 was intentionally neglected in accost of the decision - the instructing rule for assessing functional capacity/physical diagnosis was totally ignored, the rule of examining physiotherapy was accepted demonstrating a bizarre logic. Therefore, this entailed issue supports the argument for commencing a new hearing.

6. I apprehend the applicant’s complaint to be that the Tribunal failed to take account of some parts of the Introduction.  It is necessary to examine that Introduction in order to deal with the question presently before me.  The first six paragraphs of the introduction relevantly provide as follows:

   1.These Tables are designed to assess whether persons whose qualification or otherwise for disability support pension is being considered meet an empirically agreed threshold in relation to the effect of their impairments, if any, on their ability to work…

   2.These Tables are designed to assess impairment in relation to work and consist of system based tables that assign ratings in proportion to the severity of the impact of the medical conditions on normal function as they relate to work performance.  These Tables are function based rather than diagnosis based.  The Medical Officer should not approach the Tables hoping to find various conditions listed for which he or she can read off a rating.  One of the skills which needs to be developed in order to assess impairment in this context is the ability to select the appropriate tables.  The question which must be asked in each and every case is “which body systems have a functional impairment due to this condition?”

   3.These tables give particular emphasis to the loss of functional capacity that a person experiences in relation to work.  This is measured by reference to an individual’s efficiency in performing a set of defined functions in comparison with a fully able person.  In using these tables ratings can only be assigned for conditions where there is an associated current loss of function or where prolonged loss of function would be expected in most work situations.

   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…

   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…

   6.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;

   In this context reasonable treatment is taken to be:

   •treatment that is feasible and accessible ie, available locally at a reasonable cost;

   •where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed with a high success rate and low risk to the patient…

7. It is clear that there is a distinction between the operation of paragraphs (2) and (3), on the one hand, and paragraphs (4), (5) and (6), on the other.  Paragraphs (1), (2) and (3) set out the object of the tables.  Paragraphs (4), (5) and (6), on the other hand, lay down prerequisites for the assignment of a rating. 

8. The Tribunal, in its reasons, began by quoting verbatim paragraphs (4), (5) and (6).  The Tribunal then went on to say that the introduction requires that an applicant’s condition must be “fully diagnosed (and) treated” before the Impairment Tables can be applied to assign an impairment rating.  The Tribunal said that assessment that a condition has been fully treated involves consideration of past, continuing, planned and “further reasonable medical treatment”.  The Tribunal went on to say that the Introduction also required that the applicant’s condition be “permanent”, in the sense of being more likely than not to persist in the foreseeable future, before it could be assigned a rating.  It said that where a diagnosed condition involves irreversible bodily changes there is a sense in which the condition must be regarded as permanent.  The Tribunal said this is so where the imaging investigations referred to in the Tribunal’s reasons conclusively confirmed the existence of a lumbar condition. 

9. However, the Tribunal went on to say that a diagnosed permanent condition must also be stabilised in relation to any associated functional impairment before an impairment rating can be assigned.  It said that a condition is to be treated as fully stabilised, if “significant functional improvement” is unlikely to occur within two years.  It then said that a consequence of that stability requirement is that a diagnosed condition may be permanent, in the sense that it is “more likely than not that it will persist”, and yet not be stabilised.  The Tribunal then dealt at some length with what it described first as the “Fully Treated” Issue and then as the “Fully Stabilised” Issue. 

10. The complaint by the applicant, as I apprehend it, is that the Tribunal erred in addressing those issues and not first giving greater emphasis to loss of functional capacity.  However, as I have said, the reference to loss of function or capacity in paragraph (3), for example, is an indication of the object of the Impairment Tables as a whole.  That reference does not detract from the prerequisite of paragraphs (4), (5) and (6), that, before assigning a rating, there must be a comprehensive history and examination and a conclusion that the condition is permanent.  It will only be considered to be permanent once the condition has been fully diagnosed, treated and stabilised. 

11. The form of the amended notice of appeal is clearly deficient insofar as it fails to state with precision a pure question of law.  On that basis alone, that would be sufficient to result in the dismissal of the appeal.  However, I have looked at the matter in somewhat more detail in order to satisfy myself that there is not in fact a question of law raised by the complaint that the applicant makes.  It is apparent from what I have said that the complaint that the applicant makes is misconceived, insofar as he says that the Tribunal failed to have regard to the whole of the Impairment Tables or at least the Introduction. 

12. The Tribunal examined in some detail the contentions that the applicant advanced in relation to the question of whether his condition had been fully treated.  Specifically, in relation to the fully treated issue, the Tribunal examined in some detail the applicant’s contention that:

    (a)he had complied with medical advice about required treatment;

    (b)absence of past treatment was irrelevant to the issue of full treatment; and

    (c)there was no evidence that the hypothesised further treatment would be available at reasonable cost. 

    The Tribunal examined each of those matters and rejected them. 

13. There was no apparent error of law in so doing and indeed, as I understand the applicant’s complaint, he does not impugn the Tribunal’s reasoning in relation to that issue.  The Tribunal also dealt in some detail with the applicant’s position in relation to the fully stabilised issue.  Again I do not understand the applicant to make a complaint concerning the way in which the Tribunal dealt with those issues.  The essence of his complaint, as I have said, is that the Tribunal failed to have regard to paragraphs (1), (2) and (3) of the Introduction.  Even if that were formulated as a question of law, it is clear in my view that the appeal would have no prospects of success.  In those circumstances I consider that it is appropriate to accede to the Secretary’s application for summary dismissal of the appeal.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:        30 July 2007

The Applicant appeared in person.
Solicitor for the Respondent:	DLA Phillips Fox
Date of Hearing:	6 July 2007
Date of Judgment:	6 July 2007