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

[2008] AATA 1097

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 1097

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/1269

GENERAL ADMINISTRATIVE DIVISION		)
Re		Vasilka Trajkovski

Applicant

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

Respondent

DECISION

Tribunal Mr G L McDonald, Deputy President

Date9 December 2008  

PlaceMelbourne

Decision The decision under review is affirmed.

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Deputy President

CATCHWORDS

SOCIAL SECURITY – Social Security Act – whether applicant had a physical impairment – whether the applicant’s physical impairment had a rating of 20 or more points under the Impairment Tables – whether the introduction forms part of the Impairment Tables – decision under review affirmed

Acts Interpretation Act 1901 s 13

Administrative Appeals Tribunal Act 1975 s 37

Social Security Act 1991 ss 23, 94, Schedule 1B

REASONS FOR DECISION

9 December 2008 Mr G L McDonald, Deputy President

1.      Mrs Vasilka Trajkovski is a non English speaking former unskilled factory worker.  On 11 April 2007, then aged 58 years, she lodged an application with Centrelink for payment of Disability Support Pension.  A decision to reject her application was affirmed by an internal review officer and subsequently by the Social Security Appeals Tribunal.  She is now appealing the decision of the Social Security Appeals Tribunal.

2. This Tribunal has before it the documents filed for the purposes of s 37 of the Administrative Appeals Tribunal Act 1975 (the T documents and ST documents). The applicant was self-represented and was accompanied by her husband. The respondent was represented by Mr Andrew Carson of Centrelink Legal Services Branch.

3.      Mrs Trajkovski’s application was supported by a report in the standard form issued by Centrelink dated 5 April 2007 completed by her general medical practitioner, Dr Jim Ristevski.  Dr Peter Tutton examined the applicant and prepared a report dated 6 August 2008 on behalf of the respondent.  Both Drs Ristevski and Tutton gave oral evidence via telephone in the presence of each other, each being given the opportunity of commenting on the evidence of the other.  Additionally, Mr and Mrs Trajkovski gave oral evidence.

4. The criteria necessary in order to qualify for Disability Support Pension are set out in s 94 of the Social Security Act 1991 (the Act) and relevantly are as follows:

(a)The person must have a physical impairment;

(b)The person’s impairment must be 20 points or greater under the Impairment Tables in the Act; and

(c)The person must have a continuing disability to work.

5.      The Tribunal will address each criterion in as far as it is relevant to do so to reach a determination.

The Person Must Have A Physical Impairment

6.      The respondent accepted, and the evidence discloses, that Mrs Trajkovski has a physical impairment.

The Person’s Impairment Must Be 20 Points Or Greater

7. The respondent does not accept the applicant has 20 points or more under the Impairment Tables. In fact, the respondent claims that her condition is not rateable because it was not a “…fully documented, diagnosed condition which had been investigated, treated and stabilised” at the time the applicant applied for Disability Support Pension, 11 April 2007. Clause 4 of the Introduction to the Impairment Tables (the introduction) requires the condition to be fully documented and diagnosed as well as being fully investigated, treated and stabilised. Section 23(1) of the Act defines ‘Impairment Tables’ to mean the Tables in Schedule 1B of the Act. Schedule 1B of the Act consists of the introduction followed by the Impairment Tables. The introduction is not a table because it is not incorporated by the definition in s 23(1) of the Act which refers only to the Tables. In ordinary parlance the introduction could not be regarded as a Table, more particularly so, when regard is had to content of that part of Schedule 1B which is headed ‘Tables’.

8. The question then arises as to the status of the introduction and its relationship to the definition of ‘Impairment Tables’ contained in s 23(1). Section 13(2) of the Acts Interpretation Act 1901 provides that schedules form part of an Act. It follows that the introduction is part of the Act. The fact that the definition in s 23(1) refers only to the Tables (and not the schedule as a whole), whilst it may be seen as constituting awkward drafting, does not detract from the fact the introduction forms part of the legislation and effect must be given to it.

9. The awkwardness of the drafting is highlighted by the content of the clauses which constitute the introduction. Some of the clauses do much more than introduce or provide guidance as to the use of the Impairment Tables. The clauses expand the requirements which are to be met by applicants beyond those nominated in s 94 of the Act. For example, s 94 makes no reference to any requirement that a person’s condition must be rateable before the Impairment Tables can be applied, yet that is the effect of Clause 4 of the introduction. It states that before an applicant’s condition can be rated it must be “…a fully documented diagnosed condition, which has been investigated, treated and stabilised.” These concepts are further expanded in Clause 6. The result in the instant case presents grave difficulties for this particular applicant, and, no doubt, to others similarly situated. Those difficulties are both cost and the lack of awareness by medical practitioners as to the requirements.

10.     It cost the applicant $220 to obtain the report from Dr Ristevski dated 30 May 2008[1].  As stated earlier, Dr Ristevski is a general medical practitioner and the Tribunal is aware generally that specialist medical practitioners charge a greater amount for examining patients and the provision of reports.  Dr Tutton, in his analysis on behalf of the Department stated, in part, that since Mrs Trajkovski had not been assessed by “…a rheumatologist, orthopaedic surgeon or neurosurgeon” her condition could not be considered as fully diagnosed[2].  He also commented that since her treatment consisted of dietary supplements, non prescription analgesics and Voltaren and she had not been referred to a pain management clinic, had not received hydrotherapy and had only received minimal physiotherapy she could not be considered to have been “fully diagnosed”.  It was accordingly submitted by the respondent that Mrs Trajkovski did not even qualify for consideration under the Impairment Tables.

[1] ST documents, ST5.

[2] Report of Dr Peter Tutton, page 1.

11.     The barriers presented by these requirements are onerous and, as in this case, are insurmountable.  Dr Ristevski made the point several times in his oral evidence that cost was a factor in limiting his ability to carry out investigations as to the applicant’s condition.  The same factor permitted only minimal physiotherapy.  Cost of medications and obtaining medical reports was a concern commented on by both Mr and Mrs Trajkovski in giving their evidence.  Yet it is a requirement as set out in the introduction and is apparently expected by the Department having regard to Dr Tutton’s evidence that specialist reports should be obtained to confirm the diagnosis and advice on treatment.  Mr Carson pointed out that Medicare would cover a percentage of the costs associated with specialist medical consultation and treatment.  However, that does not extend to the completion of medical reports.  There are additional difficulties with waiting times to access specialists serving the public health system.  Time and expense would be highly likely to provide too high an access barrier for the applicant and those in similar circumstances.

12. Cost and time are two factors. Another factor is the extent to which medical practitioners are aware of what may be required on behalf of their patients who seek their assistance. In the instant case Dr Ristevski completed the standard claim form issued by the Centrelink. The form makes no mention of the additional requirements imposed in the introduction to Schedule 1B. The Act is long and complicated enough without it being expected that medical practitioners be aware of the provisions contained in a schedule without the contents expressly being drawn to their attention.

13.     In this case there is another factor and that arises from a lack of clarity, confusion and incompleteness in the answers provided on the standard application form completed by Dr Ristevski.  Dr Ristevski nominated two conditions, those being cervical and thoracic spondylosis and ticked the box in answer to the question whether the conditions were confirmed.  He nominated in the section dealing with Mrs Trajkovski’s history that she suffered “chronic neck pain” along with the back pain she suffered. Although there is room and instruction on the form to do so, Dr Ristevski did not provide any details about her neck pain.  Mrs Trajkovski, when giving her evidence to the Tribunal, indicated by pointing to her neck and upper arm that she was still suffering from pain.  The fact that Dr Ristevski did not provide details as to the diagnosed neck and upper arm condition indicated to the respondent that Mrs Trajkovski was not suffering any functional disability from that condition.

14.     While in his oral evidence Dr Ristevski stated that even at April 2007 the applicant was suffering ‘anxiety’, he did not mention this as a condition from which she may possibly suffer impairment.

15.     Dr Ristevski indicated on the form (and confirmed in his oral evidence) that Mrs Trajkovski had suffered the spondylosis conditions for more than two years prior to April 2007.  Despite ticking the form indicating that he expected Mrs Trajkovski’s condition to remain unchanged in the coming two years, he informed the Tribunal that it was a progressive disease and that it had worsened between the time he wrote his report in 2007 and the further report of May 2008.

16.     Dr Ristevski omitted any description of the clinical features of the spondylosis condition in the section dealing with her ability to function.  Given the form was designed to assist in the determination of a person’s disability, the lack of information stood to inhibit an accurate assessment of the applicant’s impairment being made.

17.     The form asked whether Dr Ristevski wished to provide medical certificate details if the patient had a temporary (less than 24 months) reduction in ability to function because of their medical condition[3].  In answer to that question he ticked ‘No’.  Ticking ‘No’ should have moved him on to the next question.  However, he proceeded to answer a secondary question that was required only if the answer to the first question was ‘Yes’.  The secondary question asked whether the patient could work 8 hours or more per week.  Dr Ristevski indicated Mrs Trajkovski could not.  By answering the secondary question Dr Ristevski left open the possibility that Mrs Trajkovski suffered a temporary, rather than a permanent, condition.  In his oral evidence Dr Ristevski stated that her condition was permanent and had been since April 2007.

[3] T documents, T5, page 25.

18.     In his oral evidence Dr Ristevski agreed that his diagnosis of neck pain in the section recording Mrs Trajkovski’s history was a presumptive diagnosis and therefore not confirmed.  Two further conditions diagnosed by Dr Ristevski in 2008 are outside the scope of the conditions to be considered in this case (which is limited to those conditions in existence between April and July 2007).

19. Assuming, without accepting, Mrs Trajkovski suffers from confirmed cervical and thoracic spondylosis and that the conditions have been investigated, treated and stabilised, the next question would be whether Mrs Trajkovski qualifies under the Impairment Tables. For example, does she reach the 20 points required for purposes of s 94(1)(b)? Dr Ristevski assessed her as suffering a 5 point impairment as the result of her cervical spondylosis and 10 points from the lumbar spine (thoracic spondylosis). He then included two further conditions, those being “chronic bilateral knee pain” and “chronic right upper limb pain focused on the right elbow”. However, his assessment in respect to the impairment points for the latter two conditions to be attributed is dated 30 May 2008 – well outside the relevant period. The two latter conditions are not identified as existing in his report of April 2007 and cannot be considered as part of Mrs Trajkovski’s claim. When Dr Tutton examined Mrs Trajkovski on 24 July 2008 he determined that she appeared to have greater than 50% movement in her cervical spine, normal movement in her lumbar spine for someone of her age and weight, as well as normal movement in her shoulders, hips and elbows. Dr Tutton stated he would have, on the basis of his examination, assigned a ‘nil’ impairment rating. On the basis of the evidence most favourable to Mrs Trajkovski, being that from Dr Ristevski, but limited to the medical conditions he determined as at April 2007, Mrs Trajkovski’s impairment rating would be 15 points and hence does not reach the 20 points required to qualify for Disability Support Pension.

The Person Must Have A Continuing Disability To Work

20.     Given the above there is no point in the Tribunal considering the work assessors’ job capacity reports regarding the applicant’s continuing ability to work, as Mrs Trajkovski is otherwise unable to meet the necessary criteria to succeed in her application to be paid Disability Support Pension.

21.     Like Dr Tutton[4] the Tribunal agrees that it is unlikely that Mrs Trajkovski would successfully re-enter the workforce given her age, limited English and lack of skills.  This unlikelihood would, of course, be increased if her medical conditions could be established to the level required, that is, 20 points or more under the Impairment Tables.  Mrs Trajkovski could show a copy of these reasons to Dr Ristevski and consider making a fresh application for Disability Support Pension to Centrelink including all of the medical conditions “…fully documented … which [have] been investigated, treated and stabilised”.   

[4] ST documents, ST6, page 69.

22.     The Department may need to consider amending the claim forms which are to be completed by medical practitioners giving them more information to ensure that the legislative requirements necessary to be fulfilled are before them.  The completion of forms by medical practitioners needs thought and attention to the detail as any resulting omissions, lack of clarity and confusion stand to adversely affect a patient’s claim from succeeding.

23.     It is almost inconceivable that the Parliament intended to require claimants for the Disability Support Pension to be examined by, and provide reports from, specialist medical practitioners.  While the suggestions made by Dr Tutton for referrals to specialists would no doubt assist in clarifying the diagnosis, treatment and stabilisation of the applicant’s condition(s) it would be unfortunate and too onerous a requirement if his advice was interpreted to be an administrative mandate that such reports be obtained.  If a person has already seen a specialist for diagnosis and treatment then a request for the provision of a report, subject to cost considerations, may be appropriate.  However, to decline to make an assessment on a form properly completed by a general medical practitioner and require a person at his/her expense to attend a specialist and file a report, in all but the most exceptional of cases, is setting the bar too high for people who do not have private health cover.  Any lack of clarity can surely, at least in most cases, be satisfied by Centrelink contacting the person’s general medical practitioner.

24.     However, the considerable sympathy the Tribunal feels for Mrs Trajkovski in having to deal with the complexity of requirements does not and cannot transmute into a finding in her favour.

Decision Of The Tribunal

25.     For the reasons given above the Tribunal is left with no option other than to affirm the decision under review.

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of

Mr G L McDonald, Deputy President

Signed:         .....................................................................................
  Grace Horzitski        Associate

Date/s of Hearing  26 November 2008
Date of Decision  9 December 2008
For the Applicant  Self represented
Solicitor for the Respondent     Mr A Carson, department advocate