Tsiknis and Secretary, Department of Family and Community Services

[2005] AATA 826

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 826

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/1193

GENERAL ADMINISTRATIVE  DIVISION		)
Re		Mrs Niki Tsiknis

Applicant

And Secretary, Department of Family and Community Services

Respondent

DECISION

Tribunal Ms N Bell, Senior Member

Date23 August 2005

PlaceSydney

Decision The decision under review is set aside and, instead, the Tribunal decides that Mrs Tsiknis satisfies the requirements of section 94 of the Social Security Act 1991 and, in that respect, is eligible to receive disability support pension.

..................[sgd]............

Ms N Bell
  Senior Member

SOCIAL SECURITY - Disabilty Support Pension – Varicose Veins – Bilateral Hallux Valgus Deformity – Bilateral Degenerative Disease of Both Knees – Calcaneal Spurs Bilaterally – Applicant Attracts Rating of 20 Points or More under Impairment Tables – Applicant Suffers Continuing Inability to Work – Decision Under Review Set Aside.

Social Security Act 1991, section 94

REASONS FOR DECISION

23 August 2005 Ms N Bell, Senior Member

1.Mrs Niki Tsiknis is 58 years old and currently unemployed.  She applied to this Tribunal for review of a decision of the Social Security Appeals Tribunal, dated 9 August 2004, that affirmed the Respondent’s decision that she is not eligible to receive a Disability Support Pension.

issue

2.The sole issue for me to decide then is whether Mrs Tsiknis is eligible to receive a Disability Support Pension. To be eligible, pursuant to s94 of the Social Security Act 1991 (“the Act”), to receive disability support pension, Mrs Tsiknis must have an impairment rating of 20 points under the Act as well as a continuing inability to work.

3.Mrs Tsiknis contends that she suffers from the following conditions:

·     Varicose Veins

·     Bilateral hallux valgus deformity

·     Bilateral degenerative disease of both knees

·     Bilateral calcaneal spurs

evidence

4.      Mrs Tsiknis told the tribunal the last time she worked was about three or four years ago, as a kitchen hand, in a take-away food shop.  She attributed not being able to work to the troubles she has with her legs.  Mrs Tsiknis told the tribunal that she wants to work.  She described herself as someone who likes to be busy and said that not being able to do very much anymore makes her depressed. 

5.      Mrs Tsiknis said some days the pain she suffers in her legs is so bad that she “can’t do anything”.  On an average day Mrs Tsiknis will see to household chores such as cooking and ironing – noting that she cannot mop the floors or vacuum.  She told the tribunal that tasks requiring her to stand for any period are very hard and her feet hurt her so much that she can’t wear “proper shoes”.  Mrs Tsiknis said she finds walking just as painful as standing, but she noted that she has never enjoyed walking.  She usually walks around the house and out to the letter box.  When going grocery shopping she leans on the shopping trolley for support.  Mrs Tsiknis described her legs as “weak” saying that she worries about lifting her young grandchildren and estimating that she has fallen over on three or four occasions in the last six months.  The location of the pain in her legs is generally from her knees down.  She feels a throbbing sensation in her legs and attributes that to her varicose veins, and noted that her bunion hurts her a lot. 

6.      When asked about the kind of treatment she may have access to that could address her leg problems, Mrs Tsiknis said that her doctor has advised her to have her bunions operated on, but is far too worried about being operated on to go through with the procedure.  Mrs Tsiknis said that her “phobia” of hospitals has worsened since witnessing her husband’s experiences when having his hernia operated on.

7.      The back condition suffered by Mrs Tsiknis is not as painful as her leg symptoms.  The pain Mrs Tsiknis feels in her back is a dull pain that “does not stop her from doing things”. 

8.      On an average day, Mrs Tsiknis will eat breakfast, watch television, read (but not for long) and do some light housework.  Mrs Tsiknis does all of the cooking for her family and told the tribunal she used to cook every day but this activity became too difficult for her to maintain so she now cooks in bulk and less often.  She also said that her daughter-in-law visits her most days with Mrs Tsiknis’ grandchild and so is often around to help her.  Mrs Tsiknis is able to sit for up to an hour, but if her legs are hurting more than usual, can only sit for about 10 minutes.  She added that sometimes the pain in her legs can be so severe that she has to get up and move around, often causing her more pain.  Mrs Tsiknis described the level of pain further by saying that if she is doing something and the pain starts, she has to stop immediately. 

9.      Mrs Tsiknis also spoke of her depression, stating that she has been prescribed Zoloft.  She takes two doses every day and has done so from July 2004.

impairment tables for assessment of mrs tsiknis’ conditions

10.Schedule 1B to the Social Security Act 1991, provides a range of tables to be used when attributing impairment ratings to conditions that are diagnosed, treated and stabilised.  In Mrs Tsinknis’ circumstances, the relevant tables are tables, 5.2 and 4.

11.Table 5.2 is relevant to Mr Tsiknis’ back condition, it provides the following:

Table 5.2 Thoraco—lumbar-sacral spine

As spinal mobility is a composite movement, this Table measures overall mobility of the trunk including hip movement and is not intended to measure mobility of individual spinal segments.

NIL

Normal or nearly normal range of movement.

FIVE

Loss of one-quarter of normal range of movement.

TEN

Loss of one-quarter of normal range of movement as well as back pain or referred pain:
with many physical activities and
with standing for about 30 minutes and
with sitting or driving for about 60 minutes.

or

Loss of half of normal range of movement.

TWENTY

Loss of half of normal range of movement as well as back pain or referred pain:
with most physical activities and
with standing for about 15 minutes and
with sitting or driving for about 30 minutes.

or

Loss of three-quarters of normal range of movement.

FORTY

Ankylosis in an unfavourable position, or unstable joint

12.     Table 4 is relevant to all of Mrs Tsiknis’ other conditions

Table 4 Function of the lower limbs

Table 4 is used to assess lower limb not spinal function (see Table 5). Assess both limbs together. Determination of lower limb impairments must be based on a demonstrable loss of functions.

NIL	Walks without difficulty on a variety of different terrains and at varying speeds for distances of more than 500m.
TEN	Demonstrable loss of strength, mobility, stability, balance, coordination and/or sensation such as to cause moderate interference with walking and one or more of the following: climbing, squatting, sitting or kneeling or Pain or claudication restricts walking to 250-500m or less, at a slow to moderate pace (4km/h). Can walk further after resting.
TWENTY	Demonstrable loss of strength, mobility, stability, balance, coordination and/or sensation such as to cause major interference with walking and one or more of the following: climbing, squatting, sitting or kneeling or Pain or claudication restricts walking (4km/h) to 50-250m or less at a time. Can walk further after resting or Unable to walk or stand but independently mobile using a self-propelled wheelchair.
THIRTY	Pain or claudication restricts walking (4km/h) to 50m or less at a time. Can walk further after resting or restricted to walking in and around home and: requires quad stick, crutches or similar walking aid, or is unable to transfer without assistance.
FORTY	Unable to walk or stand and mobile only in a motorised wheelchair or wheelchair with an attendant.

consideration

13.     I note at the outset that I found Mrs Tsiknis to be a credible witness and I accept her evidence in full.

14.     With respect to Mrs Tsiknis’ back condition I accept that she suffers the symptoms she described.  I note Dr M Stewart did not attribute a rating to Mrs Tsiknis’ back condition under Table 5.2 and reported on 5 April 2004, that Mrs Tsiknis had a full range of movement.  I am satisfied, on the basis of Mrs Tsikinis’ and Dr Stewart’s evidence, that Mrs Tsiknis does not attract a rating under Table 5.2. 

15.     I turn now to the rating attributable to Mrs Tsiknis under Table 4, concerning her legs.  The advocate for the Department conceded that, based on the evidence given by Mrs Tsiknis, a finding of 20 points under Table 4 is appropriate.

16.     Dr Y S Yiannoukas, Mrs Tsiknis’ treating doctor, assessed her leg conditions, along with her back condition under Table 20.  This table concerns miscellaneous conditions and may only be used when system specific tables have no application.

17.     Dr Quach, of Health Services Australia, completed a Medical Assessment Report in relation to Mrs Tsiknis on 30 September 2003.  He allocated a rating of 10 points under Table 4, noting that there may be a potential surgical correction of Mrs Tsiknis’ hallus valgus deformity in the distant future.  Surgical correction was the recommendation made to Mrs Tsiknis by Dr L J Gray, Vascular Surgeon, in his report of 7 December 2000.  Dr Gray reported that:

“…compression sclerotherapy of large veins in the presence of significant long saphenous incompetence is rarely successful and the best thing would be for her to have the veins treated surgically”

18.     I note, however, Mrs Tsiknis’ deep fear of surgery. 

19.     Dr Stewart also assessed Mrs Tsiknis lower limb conditions as attracting an impairment rating of 10 points under table 4.

20.     In relation to Mrs Tsiknis’ depression, for which she is currently being treated with Zoloft, there is no evidence that this condition has been fully treated and stabilised.  Therefore it cannot be rated under the impairment tables for the purposes of this application.

21.     I am satisfied that the conditions that affect Mrs Tsiknis’ legs are very painful and have had an ongoing and debilitative affect on her day to day life.  I am satisfied that she suffers a demonstrable loss of strength, balance, stability and mobility. I note and accept her evidence that her legs always feel weak, to the extent that she will not pick up her young grandchild and that in the last six months, she has fallen over three or four times.  I also accept her evidence of having to lean on a shopping trolley for support as she undertakes the task of grocery shopping.  Her walking otherwise is limited to movement around her house and to the letterbox at home.  Mrs Tsikinis’ evidence of the difficulties she has in walking, standing and moving around the house, as well as her need to adapt her household chores to accommodate the problems she has with her legs leads me to conclude that an impairment rating of 20 points under table 4 is appropriate.

22. The remaining issue for me to consider is whether Mrs Tsiknis has, pursuant to section 94(1)(c) of the Act, a continuing inability to work. The term “continuing inability to work” is defined in sections 94(2) to (5) as follows:

94.(2)  A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

(a)       the impairment is of itself sufficient to prevent the person from doing any work within the next 2 years; and

(b)       either:

(i)        the impairment is of itself sufficient to prevent the person from undertaking educational or vocational training or on-the-job training during the next 2 years; or

(ii)       if the impairment does not prevent the person from undertaking educational or vocational training or on-the-job training—such training is unlikely (because of the impairment) to enable the person to do any work within the next 2 years.

94.(3)  In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:

(a)       the availability to the person of educational or vocational training or on-the-job training; or

(b)       if subsection (4) does not apply to the person—the availability to the person of work in the person's locally accessible labour market.

94.(4)  For the purposes of subparagraph (2)(b)(ii), if a person has turned 55, the Secretary may, in considering whether educational or vocational training is likely to enable the person to do work, have regard to the likely availability to the person of work in the person's locally accessible labour market.

94.(5)  In this section:

"educational or vocational training" does not include a program designed specifically for people with physical, intellectual or psychiatric impairments;

'on-the-job training' does not include a program designed specifically for people with physical, intellectual or psychiatric impairments;

"work" means work:

(a)       that is for at least 30 hours per week at award wages or above; and

(b)       that exists in Australia, even if not within the person's locally accessible labour market.

23.      Dr Quach, considered that Mrs Tsiknis is capable of working 30 hours per week, provided she is placed in “a light job where she can sit down for the majority of the time”.  He added that Mrs Tsiknis “would need to be retrained for light sedentary work” that did not involve prolonged standing, that is for more than 5 or 10 minutes.  Dr Quach noted that Mrs Tsiknis would also need to be able to change her posture from sitting to standing if required.

24.     I consider this view does not take into adequate account Mrs Tsiknis’ pain and its effect on her notwithstanding her posture.  In her evidence she described a level of pain so severe that, at its worst, it simply stops her from doing whatever she is doing.  She also described the difficulty she can have with simply sitting.  Her mobility is significantly compromised not only by the pain she suffers but also from the instability that has caused her to fall on 3 or 4 occasions over the last 6 months.  I do not consider that she would be capable of working for 30 hours per week, even at a sedentary job.

25.     I also consider that Mrs Tsiknis’ condition would prevent her from undertaking vocational or on the job training, for the same reasons.

26. It follows that Mrs Tsiknis has a continuing inability to work. She therefore satisfies the requirements of section 94(1) of the Act and, in that respect, is eligible to receive disability support pension.

decision

27. The decision under review is set aside and, instead, the Tribunal decides that Mrs Tsiknis satisfies the requirements of section 94 of the Social Security Act 1991 and, in that respect, is eligible to receive disability support pension.

I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member

Signed:         ............[Linda Blue]...................................
  Associate

Date of Hearing  23 June 2005
Date of Decision  23 August 2005
Solicitor for the Respondent     Centrelink, Legal Services