Tsikritsakis and Secretary, Department of Family and Community Services

[2002] AATA 761

DECISION AND REASONS FOR DECISION [2002] AATA 761

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2001/186

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      JIM TSIKRITSAKIS
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal       Ms J A Shead, Member    

Date5 September 2002    

PlaceSydney

Decision      The decision under review is affirmed.  
  ..............................................
  [SGD]J A Shead
  Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether applicant has physical, intellectual or psychiatric impairment – whether applicant has impairment rating of 20 points or more – relevant time-frame – whether applicant has continuing inability to work 

Social Security Act 1991 - ss 94; 100(3)
Administrative Appeals Tribunal Act – s 43

Re Sylvia and Secretary Department of Social Security (AAT 10165, 3 May 1995)
Re Pirie and Secretary, Department of Social Security (AAT 11505, 20 December 1996)

REASONS FOR DECISION

Ms JA Shead, Member                  

1. This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") by Jim Tsikritsakis ("Mr Tsikritsakis") of a decision of the Social Security Appeals Tribunal ("the SSAT") dated 11 January 2001. The SSAT affirmed a decision made by a Centrelink delegate of the Secretary of the Department of Family and Community Services ("the Department") on 24 July 2000 to refuse Mr Tsikritsakis' claim for a disability support pension. This earlier decision was reviewed and affirmed by an Authorised Review Officer ("ARO") on 22 November 2000.

2. Mr Tsikritsakis gave oral evidence to the Tribunal.  An interpreter competent in the Greek language assisted the Tribunal during the evidence of Mr Tsikritsakis. A departmental advocate, Mr George Lozynsky, represented the Department.  

3. The Tribunal took into evidence documents submitted pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents", T1 – T21). Mr Lozynsky provided the Tribunal with the Department's Statement of Facts and Contentions dated 12 September 2001. The following exhibits were also tendered to the Tribunal:

Exhibit          Description  Date  
A1      Dr George Deacons report 4 June 2001 
A2      Dr John Parissis letter        9 March 2001           
R1      Dr Rose Medical Assessment Report     15 August 2001       

1. By way of background, the Tribunal extracts the history of the matter from the SSAT decision:

   "1. Mr Tsikritsakis lodged a claim for disability support pension on 3 March 2000. He was examined by a medical adviser with Health Services Australia on 27 March 2000 and was found to have a total impairment rating of 10 points under the Impairment Tables contained in schedule 1B of the Social Security Act 1991 (the Act). Mr Tsikritsakis presented a further report from his treating doctor dated 29 June 2000 which showed a further two conditions – plantar fasciitis of the left heel and hypertension. A file review was conducted by the medical adviser from Health Services Australia on 17 November 2000 to see if those conditions affected the total impairment rating previously given to Mr Tsikritsakis. As a result of the review, Mr Tsikritsakis' impairment rating was not increased as the plantar fasciitis was considered to be temporary and the hypertension to be controlled.
   2.  Mr Tsikritsakis requested a review of this decision on on 22 November 2000 an authorised review officer reviewed and affirmed the decision. The authorised review officer stated that whilst Mr Tsikritsakis suffered from neck pain, low back pain, plantar fasciitis in the left heel and hypertension, he was only given an impairment rating of 10 points for his neck pain and no points for low back pain, plantar fasciitis or hypertension. In addition, the authorised review officer considered that he was fit for light manual work or sedentary duties of 30 hours per week. As a result, he did not qualify for disability suppoprt pension.  On 30 November 2000, Mr Tsikritsakis lodged an appeal with the Social Security Appeals Tribunal. " (T2)

2. The SSAT did not alter that decision, for the reasons set out in paragraphs 25 to 29 of its decision:

   "25. The tribunal first considered Mr Tsikritsakis' lower back pain. Table 5.2 refers to lower back;
   TABLE 5.2 THORACO-LUMBAR-SACRAL SPINE
   Rating              Criteria
   NIL                   Normal or nearly normal range of movement
   FIVE                 Loss of one-quarter or normal range of movement

   TENLoss 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

  The tribunal considers that Mr Tsikritsakis has a loss of a quarter of normal range of movement as well as back pain associated with many physical activities and sitting or driving for more than 30 minutes and standing for about 30 minutes. He therefore attracts an impairment rating of 10 points for this impairment.

  26.      The tribunal next considered Mr Tsikritsakis' neck pain. Table 5.1 refers to the cervical spine and states that a loss of quarter range of movement attracts 5 points.

  27.      The tribunal next considered Mr Tsikritsakis' hypertension. As it is controlled with medication it attracts a nil rating under table 20.

  28.      With regard to Mr Tsikritsakis' plantar fasciitis documentation of this condition has only occurred from May 2000. The tribunal is therefore unable to consider it as a permanent condition.  The introduction to the Impairment Tables states that a condition must be considered to be permanent in order to attract a rating.  It states that "once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it si more likely than not that it will persist for the foreseeable future.  This will be taken as lasting for more than two years. A condition maybe considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next two years". The tribunal considers that at this stage, Mr Tsikritsakis' plantar fasciitis has not been treated and stabilised such that, on the available evidence, it will persist for the foreseeable future.  As a result, it attracts nil points.
  29. The tribunal therefore has determined that Mr Tsikritsakis's impairments attract a total of 15 points under the Impairment Tables. He therefore does not satisfy section 94(1)(b) of the Act; that is, his impairments do not attract 20 or more points under the Impairment Tables. As a result, he does not qualify for disability support pension."

1. In the Application for Review to the Tribunal for review of the SSAT decision, Mr Tsikritsakis' reasons for the Application were (T1):

   "Original decision of review officer."

1. In his opening remarks, and in response to the Tribunal's question as to why he disagreed with the decision, Mr Tsikritsakis reiterated that he disagreed with the impairment ratings and he did not agree with the Department's decision that he was able to work.

2. On behalf of the Department, Mr Lozynsky advised the Tribunal that for the purposes of subsection 94(1)(a) of the Social Security Act 1991 ("the Act") it was conceded that Mr Tsikritsakis had back pain, neck pain, plantar fasciitis and hypertension conditions. However, it was contended that Mr Tsikritsakis did not have an impairment rating of 20 points or more and consequently failed to satisfy section 94(1)(b) of the Act.
   ISSUES BEFORE THE TRIBUNAL

3. The issues in this matter relate to whether or not Mr Tsikritsakis is qualified to receive a disability support pension, and in particular:

• whether Mr Tsikritsakis has a physical, intellectual or psychiatric impairment; and if so

• whether Mr Tsikritsakis has an impairment rating of 20 points or more under the Impairment Tables in Schedule 1B of the Act, as required by subsection 94(1)(b) of that Act; and if so,

• whether Mr Tsikritsakis has a continuing inability to work as required by subsection of 94(1)(c)(i) of the Act.

1. To qualify for a disability support pension all three subsections of section 94 of the Act must be satisfied. Also, pursuant to section 100 of the Act, the Tribunal has to consider Mr Tsikritsakis' conditions on the day on which his claim was lodged and for a period of three months starting immediately after the day on which his claim was lodged.
   LEGISLATION

2. The legislation relevant to the Tribunal's determination of this matter is section 94 of the Act, which sets out the qualification for a disability support pension. It relevantly provides:

   "94. Qualification for disability support pension
   (1) A person is qualified for disability support pension if:

   (a) the person has a physical, intellectual or psychiatric impairment; and
   (b) the person's impairment is of 20 points or more under the Impairment Tables; and
   (c) one of the following applies:

   (i) the person has a continuing inability to work;

   …
   (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 form 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.

   Note: For 'work' see subsection (5).

   (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.

   (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 the work, have regard to the likely availability to the person of work in the person's locally accessible labour market.
   (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.…"

3. In general terms, the impairment rating is determined under Schedule 1B of the Act and the "continuing inability to work" is determined by reference to subsections 94(2), (3) and (5) of the Act.

4. Section 100 of the Act (effective at the time of the original decision), deals with the commencement day for disability support pension and relevantly states:

   "100. Early claim
   …
   (3) If:

   (a) a person lodges a claim for a disability support pension; and
   (b) the person is not, on the day on which the claim is lodged, qualified for a disability support pension; and
   (c) the person becomes qualified for a disability support pension sometime during the period of 3 months that starts immediately after the day on which the claim is lodged;

   the person's provisional commencement day is the first day on which the person is qualified for the pension and is an Australian resident and in Australia."

EVIDENCE

1. Mr Tsikritsakis was born 18 October 1948.  He last worked in May 1999 in a take away food shop business which he operated with his brother-in-law.  The Tribunal was told that business had operated for about 18 months and Mr Tsikritsakis had worked in it about 2 – 3 hours a day for 7 days a week.  He made salads and rice dishes.

2. On 3 March 2000 Mr Tsikritsakis had lodged a claim for a disability support pension for incapacity from lumbar and cervical spondylosis (T5) which diagnosis had been made by Mr Tsikritsakis' doctor, Dr George Dracos.  Dr Dracos stated that Mr Tsikritsakis would be unable to return to any kind of full time work within two years and that he would not benefit form vocational (work) training or rehabilitation.

3. Mr Tsikritsakis told the Tribunal he had neck and back pain and took Feldene for the pain.  He had those conditions since about 1993.  He also stated he had plantar fasciitis and it was very painful.  Since about 1997 he had been treated for blood pressure.  He had stopped taking prescribed medication because it made him sleepy and dizzy.  Asked how he filled in his day, Mr Tsikritsakis stated he did nothing.  He lay down for about half an hour at about 2 o'clock each day. 

4. In response to Mr Lozynsky as to which condition most affected him, Mr Tsikritsakis stated that it was the neck and back conditions.  He stated that the pain was always there.  He stated he could not lift more than 2 – 3 kilograms.  He sometimes drove to and from the shopping centre and could use a trolley for the shopping.  He relied on his children to lift the shopping.  His wife had been ill for 5 – 6 years and their children undertook most domestic chores.

5. In response to Mr Lozynsky's questions, Mr Tsikritsakis did not feel he could work.  He disagreed with Dr Dracos that he could work.  Mr Tsikritsakis stated he was in pain all the time.  In response to further questions, Mr Tsikritsakis stated he could not do office work because he had little reading and writing English.  He stated that he had not served customers in the take away shop.  He stated he could not work for an accommodating employer because he could not sit down or stand up for long periods of time.  He had not considered a training programme saying words to the effect "If I could go to work, I would go back to the same work."  
   CONSIDERATION OF THE ISSUES

6. The Tribunal has reached a decision in this matter, taking into account the oral and documentary evidence, the submissions and the legislation.

7. The Tribunal is only able to consider the condition disclosed in Mr Tsikritsakis' original claim for disability support pension. 

8. On behalf of the Department, Mr Lozynsky submitted that the impairment rating for Mr Tsikritsakis' neck and back condition warranted 10 points under Table 20 based upon the report of Dr Ying (T7), and Dr Thomas (T16).  It was submitted that the Tribunal should place little weight on the recent report of Dr Dracos (Exhibit A1) where he reported Mr Tsikritsakis had 50% of loss of range of movement of the cervical spine because at the time of the claim, Mr Tsikritsakis was reported as having near to normal range of movement of the back.  Also Mr Lozynsky noted that Dr Wong when examining Mr Tsikritsakis on 23 October 2001, reported he was unable to detect the severity of clinical symptoms claimed by Mr Tsikritsakis.   Having regard to the reports of those doctors at about the time of the claim, the Tribunal considered that Mr Tsikritsakis' neck and back conditions impairment rating was 10 points under Table 20.

9. In relation to hypertension, the report of Dr Thomas (T16) was that Mr Tsikritsakis' blood pressure was controlled by medication.  On behalf of the Department it was conceded that his blood pressure had subsequently determined as warranting 10 points under Table 20 but at the time the claim there was no evidence that it was difficult to control or that it impaired Mr Tsikritsakis.  The Tribunal noted it was not mentioned by his treating doctor Dr Dracos in the medical report in relating to the claim for disability pension.  In the absence of evidence at that time, the Tribunal considered that it was then appropriate to rate the hypertension condition as warranting a nil rating.

10. In relation to plantar fasciitis, again Dr Dracos did not report this condition (T5), Dr Ying makes no mention of it (T7) and Dr Wong reported it had resolved significantly following cortisone injections (T15) and the report of Dr Rose (Exhibit R1) did not assign a rating.  On balance, the Tribunal concluded that the condition had resolved and did not warrant an impairment rating.

11. Consequently the Tribunal considered the combined impairment rating for Mr Tsikritsakis' conditions was 10 points which was insufficient to satisfy eligibility under sections 94(1)(b) of the Act for disability support pension. As such, at the time of his claim for disability support pension, or within 3 months of the claim, Mr Tsikritsakis did not satisfy the requirements of subsection 94(1)(b) of the Act, in that he had not reached the requisite 20 points.

12. In relation to the further submission whether Mr Tsikritsakis had a continuing inability to work under section 94(1)(c) of the Act, Dr Dracos stated that Mr Tsikritsakis was likely to return to full-time work within 12 to 24 months (T5). Also the reports of Doctors Ying (T7), Thomas (T16) and Rose (Exhibit R1) confirm that Mr Tsikritsakis' conditions would not have prevented him from undertaking work, albeit with some limitations, and training. The Tribunal accepted those reports.

13. The Tribunal's determination in relation to Mr Tsikritsakis' 2000 claim is that at that time Mr Tsikritsakis did not satisfy the requirements of subsection 94(1)(b) of the Act in that his back pain, neck pain, plantar fasciitis and hypertension conditions did not reach the requisite 20 points. In such circumstances, as one of the requirements to satisfy section 94 of the Act was not met, the section as a whole was not met. Therefore, the Tribunal determines that Mr Tsikritsakis was not qualified for a disability support pension at the time of his claim.
    CONCLUSION

14. The Tribunal's determination in relation to Mr Tsikritsakis' claim is that at the time of the claim for disability support pension he did satisfy the requirements of subsection 94(1)(a), however he did not satisfy the requirements of subsection 94(1)(b) of the Act.

15. Accordingly, in all the circumstances and for the reasons set out above, pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal determines that the decision under review is affirmed. This means that the decision under review is unchanged.

I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Ms JA Shead, Member.

Signed:         .....................................................................................
  Associate

Date of Hearing  17 September 2001
Date of Decision  5 September 2002

Representative for the Applicant   Self

Advocate for the Respondent       G Lozynsky