Todoroski and Anor and Secretary, Department of Family and Commun Ity Services

[2004] AATA 185

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 185

ADMINISTRATIVE APPEALS TRIBUNAL      )

)N2003/499 N2003/500

GENERAL ADMINISTRATIVE DIVISION		)
Re		Ljubomir Todoroski Trajanka Todorska

Applicant

And Secretary, Department of Family and Community Services

Respondent

DECISION

Tribunal Rear Admiral A R Horton AO, Member

Date25 February 2004

PlaceSydney

Decision The decision under review, the subject of application number N2003/499 is affirmed.
The decision under review, the subject of application number N2003/500 is affirmed.

[Sgd] Rear Admiral A R Horton AO, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension –- portability period – issue of whether the Applicant’s are ‘severely disabled’ – inadequate medical evidence – Applicant’s can work or train for at least 8 hours per week over the next two years – decision affirmed

Social Security Act 1991 sections 23(4B), 1215,1217

REASONS FOR DECISION

25 February 2004 Rear Admiral Horton          

1.      This decision sets out the written reasons for two decision; that of Mr Ljubomir Todoroski, application number N2003/499 and Mrs Trajanka Todoroska, application number N2003/500. These applications are closely connected as the Applicants are a married couple and are appealing decisions made on the same day with respect to the same social security benefit. The applications were heard together at the Administrative Appeals Tribunal (“the Tribunal”) in Sydney on 4 February 2004.

2.      Application number N2003/499 is an application by Mr Todoroski for review of a decision of the Social Security Appeals Tribunal (“the SSAT”) dated 6 March 2003, which affirmed the decisions of an Authorised Review Officer (“ARO”) dated 13 January 2003 and a delegate of the Secretary, Department of Family and Community Services (“the Respondent”) dated 8 November 2002, that Mr Todoroski is not severely disabled for the purposes of being paid Disability Support Pension (“DSP”) for more than 26 weeks whilst absent from Australia.

3.      Application number N2003/500 is an application by Mrs Todoroska for review of the decision of the SSAT dated 6 March 2003, which affirmed the decisions of an ARO dated 13 January 2003 and the Respondent dated 8 November 2002, that Mrs Todoroska is not severely disabled for the purposes of being paid DSP for more than 26 weeks whilst absent from Australia.

4.      At the hearing before the Tribunal, the Respondent was represented by Mr Emerson Thistlethwaite, an advocate from the Centrelink Service Recovery Team and Mr and Mrs Todoroski were self-represented. The Tribunal was assisted by a Macedonian interpreter.

5. The Tribunal has before it two sets of “T–documents”, one for each application number, provided by the Respondent, pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, and three letters from Dr D. Talic, General Practitioner dated 26 August 2003, 11 September 2003 and 23 October 2003 marked Exhibit A1, A2 and A3.

LEGISLATION AND ISSUE

6. The relevant legislation in this matter is sections 23(4B), 1215 and 1217 of the Social Security Act 1991 (“the Act”). Section 1215 of the Act restricts social security payments to persons during absences from Australia. The maximum period (“the portability period”) during which a person can be paid during an absence is set out at section 1217, which provides that DSP is generally payable to a person for a maximum ‘portability period’ of 26 weeks, unless the person is ‘severely disabled’..

7. The relevant issue before the Tribunal is therefore whether Mr and/or Mrs Todoroski are ‘severely disabled’ as defined under section 23(4B) of the Act. Therefore, it must be determined whether Mr Todoroski and/or Mrs Todoroska:

a)have a physical, psychiatric, intellectual impairment or two or all of such impairments which make the person, without taking into account any other factor, totally unable to

i)work for at least the next two years; or

(ii)benefit within the next two years from participation in a program of assistance or a rehabilitation program.

BACKGROUND

8.      Mr Todoroski was born on 12 May 1941 and Mrs Todoroska was born on 4 February 1943 in Yugoslavia. Mr and Mrs Todoroski were granted Australian citizenship on 20 May 1992. Mr and Mrs Todoroski are both in receipt of DSP. On 19 December 1996 the SSAT decided that Mr Todoroski qualified for DSP in respect of his conditions of headaches, vertigo, depression and agoraphobia. The SSAT also found conditions of diabetes mellitus, a hiatus hernia and hearing loss. On 16 July 1997, the SSAT determined that Mrs Todoroska qualified for DSP in respect of her conditions of carcinoma and impairment to the right arm following mastectomy. On 6 February 1997 Mr Todoroski was granted DSP from 20 April 1995. On 29 August 1997 DSP was granted to Mrs Todoroska from 2 May 1996.

9.      On 26 August 2002, Mr Todoroski advised Centrelink of his intention to relocate to Macedonia. On 2 September 2002, Centrelink advised Mr Todoroski that he would have to be considered ‘severely disabled’ in order to be paid DSP for more than 26 weeks whilst overseas. On 8 November 2002, the Respondent determined that neither Mr Todoroski nor Mrs Todoroska were severely disabled.

EVIDENCE

N2003/499

10.     Mr Todoroski gave extensive oral evidence as to his various medical conditions. Mr Todoroski was cross-examined primarily on the conditions as specified in the report of Dr Talic dated 26 August 2003. In her report, Dr Talic noted that Mr Todoroski suffered from the conditions of coronary heart disease, non-insulin dependent diabetes mellitus, recurrent dizziness and vertigo, gastro-oesophageal reflux and intermittent dysuria and passing sand.

heart disease

11.     In her report, Dr Talic noted that Mr Todoroski “had an acute inferior myocardinal infarction (AMI) and a rescued angioplasty to the mid circumflex artery in 2001” and that Mr Todoroski remains free of dyspnoea and chest pain and feels reasonably well.  In oral evidence, Mr Todoroski said that he is taking three different types of medication for his heart including ‘aspirin’.. He said that he experiences slight chest pain constantly and intense chest pain from time to time. When asked how he felt on the hearing day, Mr Todoroski said that he felt very bad, suffering dizziness and left shoulder and neck pain.  Dr Talic in her report stated that “on examination the heart was normal and there were no signs of heart failure…He remains at increased risk of further heart attacks. It seems that this condition is currently stable.” Mr Todoroski told the Tribunal that his heart conditions are “not too bad” and that “I get problems now and again”. He said that recently when he felt bad he was instructed by Dr Vogl, cardiologist to take medication and now he takes tablets for his heart daily. Mr Todoroski said that he visits Dr Vogl every three months and that his next visit is on 29 May 2004. Mr Todoroski could not recall the date of his last visit to Dr Vogl.

12.     In discussing his heart condition, Mr Todoroski referred to pain in his left shoulder and neck. He told the Tribunal that Dr Talic referred him to a muscular specialist, Dr Manohan, who has prescribed him a new cream to treat this pain. He said he will visit Dr Manohan the following week in order to determine whether the cream is an appropriate treatment.

diabetes

13.     Dr Talic stated in her report that Mr Todoroski has had non-insulin dependent diabetes since 1992 and is currently under the care of Dr Slobodniuk, an endocrinologist.  Dr Talic noted that the blood tests done in the last three years show that his diabetes control varies from good to suboptimal. Dr Talic observed, inter alia, that Mr Todoroski’s diabetes needs better control.  Mr Todoroski told the Tribunal that he takes Metformin twice a day and sometimes three times a day.  When asked if he thought his diabetes was under control he said that it is “up and down, sometimes high, sometimes low.”  Mr Todoroski told the Tribunal that these fluctuations make him feel dizzy and that he has nearly collapsed a number of times.  Mr Todoroski takes nexium and losec, prescribed by Dr Tamhane ENT surgeon, for his dizziness.  Mr Todoroski also told the Tribunal said that one month ago he developed problems with his eyes and visited an eye specialist who will probably prescribe him glasses. He said he believes he has lost sight in his right eye because of his diabetes and that when the specialist checked his eyes they discovered he was almost blind in his right eye.

reflux problems

14.     Mr Todoroski told the Tribunal that he experiences reflux problems everyday. He said that “acid comes into my mouth” and that he experiences dryness and infection in his lips and mouth as a direct result of this acid. Mr Todoroski went on to say that he complains to his doctors about the number of tablets that he takes each day as he is suffering negative side effects.  He said that if he takes all of the tablets at once he develops headaches and stomach problems. Mr Todoroski told the Tribunal that he took no medication on the day of the hearing, as he didn’t have time for breakfast. Mr Todoroski said that each day he takes a lot of medication and spaces it out in an attempt to control the side effects.

intermittent dysuria and passing sand

15.     Dr Talic stated in her report that Mr Todoroski has been passing sand in his urine intermittently since 1998.  She noted that this is a recurrent, intermittent but continuing problem. Mr Todoroski told the Tribunal that this is a big problem for him and causes him much pain. 

daily activity

16.     Mr Todoroski goes for a walk every morning, for anywhere between 20 and 50 minutes.  He then has breakfast and takes his tablets. Mr Todoroski said that he spends the rest of the day sitting or resting at home, going to the shops, which are only a 5km distance away, and infrequently he visits friends and family.  Mr Todoroski also spends time with his 15 year old son. Mr Todoroski told the Tribunal that he wants to visit Macedonia because he wants to see whether his health problems improve with the changed environment. Mr Todoroski also mentioned that his son has allergies, which living in Macedonia may alleviate.

17.     Mr Todoroski told the Tribunal that he can not work at all as he has too many problems including his heart, shoulder, blood, breathing, dizziness, and arthritis in his right knee for which he takes Naprosin. It should be noted that Dr Talic made no note of arthritis in her report. Mr Todoroski also emphasised that he has degeneration in his bones, which causes further problems in his shoulder. Mr Todoroski told the Tribunal in cross-examination that he can not work eight hours per week. 

18.     Following cross-examination, the Tribunal asked Mr Todoroski questions about his depression.  Dr Talic makes no note of depression in her report. When asked how he felt, by the Tribunal, Mr Todoroski stated that he feels anxious about what will happen to his son in the future as he has no relatives in Australia.  He said that he only sleeps two to three hours per night and while he is awake he worries.  He stated that he takes no medication to treat his depression as his doctor advised him that he is already taking too many tablets and it would thus not be sensible to prescribe him further medication.  Mr Todoroski said that he had seen a psychiatrist many years ago after asking Dr Boksic, his previous General Practitioner, to refer him to one.

N2003/500

19.     Mrs Todoroska gave evidence relating to her medical conditions. She was asked questions by both the Tribunal and Mr Thistlethwaite based on the medical report provided by Dr Talic, dated 11 September 2003. 

low back pain

20.     Mrs Todoroska told the Tribunal that the last time she worked was in 1983 or 1984 and she stopped working due to left leg strain caused by using a machine pedal. She said that after developing this pain she visited Dr Vial. She recalled that around 1983/1984 she was referred to hospital and was given an injection.  Mrs Todoroska is no longer seeing a specialist for her leg pain.  She said that sometimes the pain still affects her and that at times she can barely walk due to pain in both legs.  She said that whilst walking she experiences pain and must stop and rest until the pain subsides.  Mrs Todoroska also told the Tribunal that she experiences regular back pain. She said that Dr Boksic advised her to get an injection but that it wouldn’t solve her problem and was very painful.  Mrs Todoroska takes panadol tablets for her leg and back pain. 

bilateral tinnitus

21.     Dr Talic, in her report, stated that in 1995, Dr Tamhane, ENT specialist, examined Mrs Todoroska and reported that her nasal passages were both partially obstructed by swollen inferior turbinates and congestion of the nasal mucous membrane and that her ears were normal.  Mrs Todoroska confirmed that she visited Dr Tamhane in 1995 and stated that she had not seen him since then. She told the Tribunal that currently she hears ringing in her ears every night, which causes headaches.  Mrs Todoroska is not taking any medications for her hearing problems.

laparoscopic cholecystectomy

22.     Dr Talic noted in her report that Mrs Todoroska had a laparoscopic cholecystectomy performed by Dr Mason in December 1994.  Mrs Todoroska sad that “I get a lot of acid” and that she is currently taking no medication.

hypertension

23.     Dr Talic stated that Mrs Todoroska has had hypertension for several years, which needs better control and that she does not have any complications of hypertension at this stage.  Mrs Todoroska said that she measures her blood pressure regularly and she visits the doctor who also measures her blood pressure.  She said that she takes Noten twice a day, even though the packet instructs that the medication should be taken once daily; the reason for this being that the doctor advised her to take an extra tablet if her blood pressure feels high.  Mrs Todoroska told the Tribunal that when her blood pressure is high she develops a headache, experiences a strong pain in the base of her skull and feels nauseated.  She said that this happens regularly, perhaps once every two days.

bilateral breast cancer

24.     In her report, Dr Talic sets out an extensive medical history relating to treatment of bilateral breast carcinoma. Dr Talic stated that the condition is currently stable but as there is always risk of recurrence Mrs Todoroska needs continuous monitoring and follow-up.  The Tribunal asked Mrs Todoroska how this medical condition affects her now. She answered that she is scared that it may recur and feels bad.  She said that she is unable to sleep, thinking of what will happen.  Mrs Todoroska told the Tribunal that she was last reviewed by Dr Harvey on 27 January 2004 and sees Dr Harvey every three months. There are no reports from Dr Harvey.  Mrs Todoroska presently takes Tamoxifen for stress and Genox 20 prescribed by Dr Robinson, surgeon.

other medical problems

25.     Dr Talic did not specify any other medical problems but in the hearing Mrs Todoroska was given an opportunity to tell the Tribunal about any other medical problems she was experiencing.  Mrs Todoroska complained of pain in the right arm as a direct result of surgery performed in relation to her bilateral breast cancer treatment. She said that she can’t do anything with her right hand as it gets red and swollen. She can not grasp and pick up heavy items; for example, she can pick up an empty glass but not a glass full of liquid. 

daily activity

26.     Mrs Todoroska told the Tribunal that she walks only 15 to 20 minutes each day in the evenings with her husband but can not walk a longer distance due to very strong pain in her feet. She said that she does the housework slowly using her left arm only. She is unable to do certain domestic chores. For example, she cannot undertake elements of food preparation and cooking such as cutting, so her husband helps with these chores. Her son does the vacuuming and some of the cleaning. Mrs Todoroska says that in addition to taking a short walk and doing some chores, she does “nothing much” for the rest of the day. She stays in the house and rests and does not drive.  From time to time Mrs Todoroska visits her neighbour or her neighbour will come to her house.  Mrs Todoroska says that she feels dizzy when travelling on public transport.

27.     Mrs Todoroska said that she can not work as she can not do anything with her right hand. She said that in addition to right arm pain, she also experiences headaches, which cause her to have to sit down and rest.  Mrs Todoroska said that whilst sitting she must keep her arm in a certain position and that whilst sleeping she must rest her arm on a pillow or she can not sleep.  Mrs Todororska thought that if she didn’t have medical problems she would be able to do more housework and that she is not capable of doing eight hours of work a day.

SUBMISSIONS

28.     Mr Todoroski told the Tribunal that neither he nor his wife are capable of working or participating in training for eight hours a week over the next two years.  Mr Todoroski said that he feels too bad due to his medical conditions to work. Mrs Todoroska stated that her right arm pain prevents her from doing any work and her headaches prevent her undertaking training.

29. Mr Thistlethwaite for the Respondent stated that there was no reason to doubt the evidence given by either Mr or Mrs Todoroski and that they were both credible and honest witnesses. However, the Respondent submitted that neither application can succeed as both the oral and documentary evidence demonstrate that in fact both Mr and Mrs Todoroski are capable of work or training within the next two years, thus neither are ‘severely disabled’ as defined under the Act.

30.     Mr Thistlethwaite submitted that the Respondent relies primarily on the reports of Dr Wassenaar, treating medical doctor of Heath Services Australia (“HSA”), which assert that neither Mr nor Mrs Todoroski are ‘severely disabled’. Mr Thistlethwaite submitted that the reports of Dr Wassenaar must be relied upon in determining the main issue of whether Mr and Mrs Todoroski can work for at least 8 hours a week for the next two years. The Respondent asserted that Dr Talic, in her medical reports did not address the issue of whether the Applicants could work.  In the Respondent’s view, this limits the value of the reports in this regard. 

31.     Mr Thistlethwaite pointed out that Mr Todoroski gave evidence that he manages his own affairs, drives to the shops, cares for his child and undertakes domestic chores.  The Respondent acknowledges that Mrs Todoroska suffers from a severe arm condition, which was correctly assessed at 20 impairment points.  However, the Respondent submits that the evidence does not adequately demonstrate that as a result Mrs Todoroska is not capable of working or training at least eight hours per week.

CONSIDERATION

32. Mr and Mrs Todoroski are both currently in receipt of DSP. Mr and Mrs Todoroski’s eligibility to DSP is not in issue before this Tribunal. Mr and Mrs Todoroski plan to travel back to their native country, Macedonia and want to continue to receive DSP while overseas. However, those in receipt of DSP can only receive payments while overseas for 26 weeks, as specified under section 1217 of the Act. In order to receive unlimited DSP payments, a person must be ‘severely disabled’ as defined in the Act. The main issue before this Tribunal is whether Mr and Mrs Todoroski are ‘severely disabled’ for the purposes of being paid DSP for more than 26 weeks whilst absent from Australia.

33. In coming to the correct and preferable decision, the Tribunal took into consideration all oral and documentary evidence provided at the hearing. The key issue to be determined by this Tribunal is whether Mr and/or Mrs Todoroski are ‘severely disabled’ as defined in section 23(4B) of the Act. In reaching a decision the Tribunal assessed each disability suffered by both Mr and Mrs Todoroski, being those disabilities for which each is receiving DSP, and assessed the impact of the combined disabilities on each Applicant’s capacity to work or train for eight hours a week. Both Mr and Mrs Todoroski at certain times during the oral evidence told the Tribunal of medical conditions they suffer, which have not been assessed and for which they do not receive DSP. These medical conditions are not taken into consideration in the determination of this matter.

34.     In assessing whether either Mr or Mrs Todoroski can work eight hours a week over the next two years, the Tribunal favours the opinions of Dr Wassenaar over that of Dr Talic. Dr Wassenaar completed two reports, one for Mr Todoroski and another for Mrs Todoroska, both dated 16 October 2002.  In his reports, Dr Wassenaar opines that Mr Todoroski is likely to be able to his return to his usual workload within the next 6 months.  The report also states that Mr Todoroski is likely to be able to work more than 20 hours a week, able to return to any kind of work both part time and full time, all within 6 months.  Dr Wassenaar opined that Mrs Todoroska would not be able to return to her usual workload or work of more than 15 hours per week for more than two years.  Dr Wassenaar also determined that Mrs Todoroska would be unable to return to any type of work full time for more than two years.  However, Dr Wassenaar opined that Mrs Todoroska could return to any kind of work, not just her latest job, now.

35.     The Tribunal agrees with the Respondent that the reports of Dr Talic is of limited value in determining whether the Applicants can work or train for at least 8 hours a week in the next two years as she fails to address this issue, other than to say at Exhibit A3 “I am not certain”..  Dr Talic also points out that her assessment is totally based on previous medical records and that she is not an expert in impairment ratings.

36. The Tribunal is satisfied that both Mr and Mrs Todoroski gave thorough and honest oral evidence. However, the Tribunal finds that the evidence of both is insufficient to determine that neither person can work or train for eight hours a week for the next two years. Both Mr and Mrs Todoroski sat for the duration of the hearing without visibly seeming uncomfortable or requesting a break. Both Applicants answered all questions effortlessly and communicated for the duration of the hearing without appearing in pain or fatigued. It should be noted that Mr Todoroski had not taken his medication on the day of the hearing. Mr Todoroski and Mrs Todoroska manage all their own affairs, Mr Todoroski drives regularly, he shops, assists in cleaning and cooking and cares for his teenage son. Mrs Todoroska, assists in domestic chores, visits friends, reads and assists in the care of her son. As they manage to conduct their domestic and social lives without assistance the Tribunal is thus unable to determine from their oral evidence that either Mr or Mrs Todoroski are unable to work for eight hours in the next two years. There is no evidence which suggests that in the next two years either Mr or Mrs Todoroski are unable to work or train for 8 hours per week solely due to their disabilities. Mr and Mrs Todoroski’s age and limited English skills may impact on their success in obtaining employment or benefiting from training. However, these factors can not be taken into consideration as the Act sets out clearly that the inability to work and retrain must be based solely on the disability of the Applicant.

37.     Therefore, the Tribunal decides that both Mr and Mrs Todoroski can work or participate in training in the next two years. In coming to this conclusion, it follows that neither Mr or Mrs Todoroski are severely disabled and therefore neither are entitled to unlimited payment of their DSP while overseas

DECISIONS

38.     The decision under review, the subject of application number N2003/499 is affirmed.

39.     The decision under review, the subject of application number N2003/500 is affirmed.

I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of Rear Admiral Horton

Signed:  A. Krilis     .......................................................................................
  Associate

Date/s of Hearing  4 February 2004
Date of Decision  25 February 2004
Representative for the Applicant    Self
Solicitor for the Respondent          Mr Emerson Thistlethwaite