Tsiknis and Secretary, Department of Family and Community Services

[2005] AATA 808

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 808

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/1442

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		ANDREAS 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 affirmed

.........................................

Ms N Bell
  Senior Member

SOCIAL SECURITY - Application for Disability Support Pension - Back and Neck Conditions - Applicant Found to have an Impairment Rating of 15 Points - Decision Under Review Affirmed

Social Security Act 1991, section 94.

REASONS FOR DECISION

23 August 2005 Ms N Bell, Senior Member

1.Mr Andreas Tsiknis is a 61 years old and currently unemployed.  He has applied to this Tribunal for review of a decision of the Social Security Appeals Tribunal dated 30 September 2004, that affirmed the decision of the Respoendent, that he is not eligible to receive a Disability Support Pension under the Social Security Act 1991 (the Act).

issue

2.To be eligible to receive a disability support pension, Mr Tsiknis must have an impairment rating of 20 points under the Act (s.91(1)(b)) and a continuing inability to work (s.91(1)(c)).

3.Mr Tsiknis contends he suffers from back, neck and hernia conditions and states these conditions are permanent and prevent him from working.

evidence of mr tsiknis

4.It was Mr Tsiknis’ evidence that his back condition is more painful than his neck condition.  He said that he is constantly in pain and that his lower back and buttocks on both the left and right hand sides hurt him.  Mr Tsiknis said that he is able to bend slightly but is not able to tie his own shoelaces and needs to sit down when bathing.  He is able to help his wife with the shopping, noting that they each lean on a shopping trolley to make this task easier.  He is also able to help his wife with household chores such as vacuuming and dusting but is not able to tend to the garden and relies on his son to do this. 

5.Mr Tsiknis said he can drive for one or two hours with some discomfort.  He can sit comfortably for about 30 minutes and stand for about 15 minutes, but does need to change his position regularly.  He said that he is able to walk about two kilometres but does not feel confident enough to lift his 18 month old grandchild for fear that he will hurt his back.  Mr Tsiknis said his neck is sore all of the time to the extent that, when driving, he relies on the mirrors in his car because it hurts to turn his head.

6.An average day for Mr Tsiknis involves getting up between 7:00am and 9:00am and having breakfast.  He said that he generally tried to keep himself busy and might help his wife with some household chores; watch television; go for a walk around the block as recommended by his doctor; go to the local shopping centre to meet and sit with his friends, and read the paper or a book.  Mr Tsiknis will take medication when he is in pain and does have some days when he does not need to take any medication.  For pain relief he relies on over-the-counter type medication. 

7.The hernia condition from which Mr Tsiknis suffers some symptoms causes occasional discomfort but does not prevent him from doing anything.  Mr Tsiknis had the condition operated on twice.  The second operation was to correct aspects of the first procedure, causing him significant upset at the time.

8.Mr Tsiknis explained to the tribunal that his back condition is the main reason why he feels he is unable to continue in his profession as a painter.  He worked as a painter for approximately 20 years and was a truck driver for 9 years before that. 

impairment tables for assessment of mr tsiknis’ conditions

9.Schedule 1B to the Act, provides a range of tables to be used when attributing impairment ratings to conditions that are diagnosed, treated and stabilised.  In Mr Tsinknis’ circumstances, the relevant tables are tables 5.1, 5.2 and 11.2.

10.Table 5.1 is relevant to Mr Tsiknis’ neck condition, it provides the following:

TABLE 5.1 Cervical Spine Rating Criteria

NIL	Normal or nearly normal range of movement.
FIVE	Loss of quarter of normal range of movement.
TEN	Loss of half of normal range of movement and frequent/constant neck pain or loss of three quarters of normal range of movement with infrequent neck pain.
TWENTY	Loss of three-quarters of normal range of movement and constant neck pain.
THIRTY	Loss of almost all movement, or complete ankylosis in position of function.
FORTY	Ankylosis in an unfavourable position, or unstable joint.

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 11.2 is relevant to Mr Tsiknis’ hernia condition, it provides the following:

Gastrointestinal: Pancreas, Small and Large Bowel, Rectum and Anus

NIL	Anal disorder: infrequent and minor symptoms, eg, haemorrhoids, anal fissures, controlled by medication Bowel disorder, eg, irritable bowel, diverticulosis: infrequent and minor symptoms such as constipation, or bowel disorder which respond to dietary treatment alone.
TEN	Bowel disorder: frequent moderate symptoms despite optimal treatment Occasional faecal soiling despite optimal treatment Anal disorder: marked symptoms despite regular treatment Colostomy, ileostomy - well controlled Established chronic pancreatic disease with moderate symptoms (pain/steatorrhoea) Large abdominal hernia not easily reduced and resulting in persistent moderate symptoms.
TWENTY	Faecal soiling necessitating frequent changes of underwear and an incontinence pad despite optimal treatment Bowel disorder: marked symptoms, such as regular diarrhoea and frequent abdominal pain, only partially controlled by optimal treatment Colostomy, ileostomy - poorly controlled Large abdominal hernia and/or repeated unsatisfactory hernia repairs resulting in frequent and persistent severe symptoms Established chronic pancreatic disease with severe symptoms (pain/steatorrhoea).
THIRTY	Bowel disorder: diarrhoea and abdominal pain on most days, with poor response to treatment and considerable interference with daily routine Jejunostomy Established chronic pancreatic disease with severe symptoms (pain/steatorrhoea) and with intractable complications.
FORTY	Complete faecal incontinence.

consideration

13.     Turning first to Mr Tsiknis’ neck condition, I accept that he suffers stiffness and soreness as described.  Dr Y S Yiannoukas, Mr Tsiknis’ treating doctor, in his most recent report, dated 29 March 2005, attributed between 5 and 10 points under table 5.1 to this condition and made the comment that he regarded the problem as permanent and likely to continue to deteriorate.  Dr M Stewart, of Health services Australia completed a Medical Assessment Report for Mr Tsiknis on 11 May 2004 and reported a loss of one quarter range of movement in his neck.  An impairment rating of 5 was provided for Mr Tsiknis’ neck condition and regarded by Dr Stewart as permanent.

14.     On the basis of Mr Tsiknis’ evidence and that of Dr Stewart, I consider a rating of 5 points is the appropriate rating in relation to Mr Tsiknis’ neck.  I do not consider the impairment he describes attracts a rating of 10 points.  The only loss of range of movement mentioned is a ¼ loss, as described by Dr Stewart.

15.     With regard to Mr Tsiknis’ back condition, the condition that he says affects him the most, I note the ways in which Mr Tsiknis’ has modified a number of behaviours as a result of back pain and accept his evidence of the symptoms suffered.  Dr Y S Yiannoukas is of the opinion that Mr Tsiknis’ back pain attracts a 15 point rating under table 5.2 and is also permanent.  In a report dated 10 August 2000, Dr J Bentivoglio, Orthopaedic Surgeon, upon examining Mr Tsiknis stated that he had almost a full range of movement in his lower back.  He found tenderness over the L5/S1 region of Mr Tsiknis’ lumbar spine but reported no neurological abnormalities.  Dr Bentivoglio diagnosed Mr Tsiknis with an instability syndrome affecting his lumbar spine region.  Dr M Stewart, on 11 May 2004, reported a loss of one quarter range of movement in his back and noted that Mr Tsiknis had frequent pain.  An impairment rating of 10 was provided for this condition and regarded by Dr Stewart as permanent.

16.     Table 5.2 also determines impairment rating by reference to loss of range of movement.  Again, the only evidence of loss of range of movement is that of Dr Stewart, who noted a one quarter loss.  Less favourably, Dr Bentovoglio noted a full range of movement.  I see no reason to disturb the assessment of Dr Stewart, but I do not consider the assessment of Dr Yiannoukas is justified.  I consider a rating of 10 points is appropriate.

17.     Now considering Mr Tsiknis’ hernia condition, I note that Mr Tsiknis considers this to be the condition that affects him the least out of those suffered and symptoms are mild and occasional.  Dr Yiannoukas reported on 29 March 2005, that Mr Tsiknis “still suffers some discomfort and pain” but did not attribute a rating to this condition, nor did Dr Yiannoukas attribute a rating in his Medical Assessment Report, completed on 3 April 2005.  Dr Stewart in his Medical Assessment Report also described the condition but made no assessment as to impairment rating.   Having regard to Mr Tsiknis’ evidence and to the Table, I consider this to be correct.

18.     These assessments of impairment rating yield a total impairment rating of 15 points.  That is below the 20 points required by section 94(1)(b) of the Act.  It follows that Mr Tsiknis does not qualify to receive disability support pension.

decision

19.The decision under review is affirmed.

I certify that the 19 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