Vidovic and Secretary, Department of Family and Community Services

[2004] AATA 1062

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1062

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V03/1374

GENERAL ADMINISTRATIVE  DIVISION		)
Re		NENAD VIDOVIC

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr John Handley, Senior Member

Date12 October 2004

PlaceMelbourne

Decision The decision under review is affirmed.

(Sgd)  John Handley

Senior Member

SOCIAL SECURITY – applicant received disability support pension – cancelled on review – suffers back pain, depression and alcoholism – injuries not treated or stabilised – not permanent per Schedule 1B – decision affirmed

Social Security Act 1991 (Cth) s94

REASONS FOR DECISION

12 October 2004 Mr John Handley, Senior Member           

1.      This is an unfortunate application and the background to it may be briefly described as follows.

2.      Mr Vidovic qualified for Disability Support Pension (“DSP”) in 2000 but payment of that pension was cancelled in 2002 upon review.  An authorised review officer (“ARO”) affirmed the decision to cancel on 30 December 2002 (T20, p97).

3.      It would not appear that Mr Vidovic challenged that decision but in fact made a new application for DSP on 9 May 2003 (T23, p108).  That application was ultimately rejected and the decision to refuse DSP was affirmed by an ARO.  Mr Vidovic lodged an appeal against that decision to the Social Security Appeals Tribunal (“SSAT”) who on 3 November 2003 affirmed the decision of the ARO.  Mr Vidovic applies to this Tribunal to review the decision made by the SSAT.

4.      Mr Vidovic is presently 41 years of age having been born on 25 August 1963.  He is married with two teenage daughters.  His wife is a DSP recipient.  Subsequent to the cancellation of the DSP that was being paid to him, Mr Vidovic has been in receipt of parenting payment at the single rate.

5. Qualification for DSP is to be found at s94 of the Social Security Act 1991 (“the Act”) which is relevantly reproduced as follows:

94(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; 

(ii)the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and 

(d)the person has turned 16; and 

(e)       the person either: 

(i)is an Australian resident at the time when the person first satisfies paragraph (c); or 

(ii)has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or 

(iii)is born outside Australia and, at the time when the person first satisfies paragraph (c) the person: 

(A)     is not an Australian resident; and 

(B)     is a dependent child of an Australian resident;

(iii)is born outside Australia and, at the time when the person first satisfies paragraph (c) the person: 

(A)     is not an Australian resident; and 

(B)     is a dependent child of an Australian resident; 

and the person becomes an Australian resident while a dependent child of an Australian resident. 

Note 1:For Australian resident, qualifying Australian residence and qualifying residence exemption see section 7. 

Note 2:for Impairment Tables see section 23(1) and Schedule 1B. 

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. 

Note:For work see subsection (5). 

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) . . .

94(5) . . .

94(6) . . .

6.      In evidence Mr Vidovic said that he suffers from back pain, depression, nightmares and alcoholism.  He said that he feels “more bad than I did in 2000” because he feels worse now than he did previously (when he qualified initially for DSP).  It was his belief that he should again qualify for DSP.

7.      Mr Vidovic said that he is presently treated by Dr Nallaratnam a psychiatrist and Dr Pjesivac a general practitioner.  He said that both doctors had advised him that he should not undertake any employment in the next two years.

8.      Mr Vidovic had been employed as a process worker with a company that manufactured car parts for Holden and Toyota.  He suffered back injury in that employment and was provided with lighter work.  Ultimately he lost that employment and was unsuccessful in attempts he made to seek employment elsewhere.  It was his belief that potential employers were not prepared to engage him by reason of his request to be provided with lighter type work.

9.      In cross-examination Mr Vidovic said that the extent of his back pain, the quantity of alcohol consumed and the frequency and intensity of his nightmares and depression are all greater now than in 2000.  He said that he attends Dr Nallaratnam on a monthly basis for treatment of his depression.  Whilst his alcoholism has been discussed no specific treatment plan or program has been implemented or suggested.  Additionally Mr Vidovic said that Dr Pjesivac had suggested treatment for his back injury which he understood to be in the nature of surgery.  Mr Vidovic rejected that suggestion because doctors were not prepared to guarantee that he would become pain free.

10.     Mr Vidovic obtained a truck licence in 1999 and initially thought that he might obtain employment in that industry but found that repeated periods of sitting caused an exacerbation of his back pain.  He acknowledged that doctors he had attended at the request of Centrelink had suggested that he could undertake lighter duties for example as a car park attendant or in light courier work.  However the applicant said that the extent and worsening of his back pain, his depression and nightmares precipitating daytime drowsiness and the extent of alcohol consumption prevent him from undertaking any employment.

11.     In answer to some questions from me Mr Vidovic said that he is able to sit and walk but there are occasions when he suffers increased pain.  When walking he will frequently rest and if sitting he will either attempt to adjust his posture or he will stand and walk.  He said there have been occasions where he has suffered severe back pain when lifting heavy items at home which has caused him to be incapacitated for two or three days.  Additionally he said he has pain across his lower back which sometimes extends down both legs to both ankles.

12.     Mr Vidovic said that he came to Australia from Bosnia where as a civilian he was exposed to civil conflict.  He said that as a Christian he was beaten and abused and on one occasion imprisoned by Muslim soldiers.  He said he observed “some bad things” and these events are the subject of recurring nightmares which he says occur on two or three occasions per week.  When he has these nightmares he wakes up and is sweating and is scared.  He often sleeps during the day because he is tired which he associates with interrupted sleep.

13.     With respect to his alcohol consumption Mr Vidovic estimated that he would drink an average of half of a bottle of spirits per day, being either whiskey or vodka, and between six to eight stubbies of beer per day.  He said that he commences to drink alcohol within one hour of waking and drinks throughout the day and has his last drink before he goes to bed.  He said that he is drunk daily and he understands that he drinks alcohol to help him cope with his depression.  He said he has spoken to Dr Nallaratnam about the content of his dreams and whilst they continue at the same frequency, he says he now has a better understanding of his nightmares and he is not now as scared as he was initially.  Medication to reduce or eliminate the effects of the alcohol addition had not been prescribed because Mr Vidovic said that he consumed medication of that type before he came to Australia but he suffered an adverse reaction.  Mr Vidovic acknowledged that he was addicted to alcohol and has not attempted to reduce or eliminate consumption of alcohol despite the recommendations of Dr Nallaratnam.

conclusion and reasons for decision

14.     Mr Vidovic submitted that by reason of his injuries and illnesses now being worse than they were in 2000 when he initially qualified for DSP, that he should now qualify for it.  He said that he was unable to work because of the combined effects of his illnesses and injuries and had been advised by his doctors that he would not be able to work within the next two years.

15. Ms King on behalf of the respondent relied on assessments that had been made by Dr Castro (T17, p85) and Dr Bisas who both assessed the applicant as attracting 5 impairment points under Table 5.2 of the Impairment Tables for the back pain and 10 points under Table 6 with respect to the depression. By reason of the sum total of the impairment points being less than 20 it was submitted that the applicant did not qualify under the first limb of s94 of the Act. It was the respondent’s case that the applicant did not attract any impairment points with respect to his alcoholism because it was a condition which had not been treated nor could it be said to be stabilised and therefore it was not a permanent injury (refer introductory Memorandum to the Impairment Tables).

16.     Dr Nallaratnam in a report of 18 February 2004 found that Mr Vidovic suffers from “a major depressive illness” manifested by recurring nightmares, back pain, concern as to his father’s health and his alcoholism.  He concluded that alcohol is consumed excessively which causes Mr Vidovic to be aggressive, that he would be unreliable as an employee and could be “a serious danger to others because of his aggressive tendencies”.  He concluded that Mr Vidovic was incapacitated “to the extent of 30 points”.  Unfortunately Dr Nallaratnam did not refer to the Impairment Tables nor did he apportion impairment points under Tables 5.2, 6 or 7 (being the Table applicable to alcohol abuse).

17.     Dr Pjesivac in a report of 30 January 2004 concluded that the applicant was a chronic alcoholic who did not comply with a medication regime and who had refused detoxification treatment.  He concluded that a combination of his alcoholism, depression and back pain caused Mr Vidovic to have no capacity for work.

18.     It is my view on review of the documents and having observed and listened to Mr Vidovic in the hearing on 4 October 2004 that the decision to refuse DSP should be affirmed.  However, assistance should be made available to him to either treat the illnesses from which he suffers or to provide documented evidence of a quality and type which would demonstrate (if the conditions cannot be treated) that he is qualified for DSP.

19.     The assessment of 5 impairment points under Table 5.2 with respect to the thoraco-lumbar sacral spine has been provided by both Commonwealth doctors (refer earlier) against a criteria of loss of one quarter of normal range of movement”.  10 impairment points would be assessable if it was found that in addition to the loss of range of movement there was also back pain or referred pain with “many physical activities and with standing for about 30 minutes or with sitting or driving for about 60 minutes”.  It would not appear that the Commonwealth doctors have obtained a history (as was the evidence of Mr Vidovic at the hearing) of these features.  Additionally – and probably with more concern – there would not appear to have been any adequate treatment of his back pain and the referred pain into both legs.  I accept that Mr Vidovic is a witness of truth and it would be hoped that those symptoms would have been identified by either the applicant’s treating practitioners or by the Commonwealth doctors who assessed him for the purposes of this appeal.  With that history surely the doctors would have a better appreciation of the extent of his back injury and could either suggest a form of treatment or in the event it was believed that the back injury causing the low back pain and the referred pain was permanent that more than 5 impairment points would be found.  Mr Vidovic did say that he had explored the opportunity of physiotherapy but had rejected it because he had been told that it would cost between $60 and $80 per hour which he could not afford.

20.     The Commonwealth doctors assessed 10 impairment points under Table 9.6 with respect to “psychiatric impairment”.  The criteria for 10 impairment points is “moderate and regular symptoms and generally functioning with some difficulty . . . may have received psychiatric treatment which has stabilised the condition.  Minor effects on work attendance and/or ability to work but the impairment would not prevent full time work . . .”.  On the evidence heard in these proceedings 10 impairment points is clearly inadequate.  On the applicant’s own evidence as to the extent of his depression, his nightmares, his broken sleep and his alcohol abuse it would not be hard to envisage in his present state that the combined effects of those illnesses and symptoms would have more than “minor effect on work attendance” but would also suggest that with adequate treatment he may well improve and regain his capacity for employment.  I could not be satisfied on the evidence of Mr Vidovic that the depression could be regarded as being a permanent injury and/or incapable of being treated to the extent of lessening its affect.  Mr Vidovic acknowledged that he had discussed the contents and frequency of his dreams with Dr Nallaratnam and he now has a better understanding and is able to cope with the content of the dreams.  Nonetheless the fact that they occur and cause him distress would suggest that perhaps analysis or other alternative types of therapy could be beneficial.

21.     The Commonwealth doctors did not find any impairment under Table 7 because it was thought that the alcoholism had not been treated and therefore could not be regarded as being a permanent condition.  I should pause at this stage and indicate that the introductory paragraph to Table 7 appears misleading.  It is entitled “Alcohol and Drug Dependence” and initially it refers to the Table being used where there is “Chronic entrenched drug and alcohol dependence”.  Later it refers to the use of “drugs or alcohol” and the criteria against which impairment ratings are to be found refers to “alcohol or drug use”.  In my view if a Table is to have any logical meaning it must refer to either alcohol or drug dependence, not a combination of both.  Application of the criteria would suggest that it was envisaged that only alcohol or drug dependence would attract an impairment rating under this Table.  In the case of Mr Vidovic there is nothing to suggest that he has any drug dependence, in fact, he said in evidence that he does not consume any medication with respect to his back pain or his depression because of his consumption of alcohol.

22.     I would acknowledge that Mr Vidovic said in evidence that he had attempted the consumption of medication in Bosnia to eliminate the addiction he admitted he had to alcohol but it made him ill.  It may be that there are other drugs available in Australia or perhaps more appropriately he could be referred to appropriate institutions or organisations or undertake appropriate therapy to assist him to eliminate his addiction to alcohol.  On balance it would therefore appear that there has not been appropriate treatment with respect to his alcoholism and I could not in the circumstances find that it is a permanent illness.  Such a finding could only be made if there had been an attempt at treatment which had been found to have been unsuccessful.

23.     Mr Vidovic may be in a vulnerable position to the extent that he is a welfare recipient and probably unable to afford the cost of private treatment.  There must however been many other persons in his situation who are able to obtain appropriate treatment.  For example, obtaining physiotherapy as a public patient in a hospital or at a Community Health Centre may be an option.  Additionally if he requires treatment for his back injury he may be able to obtain it by an appropriately qualified specialist in the public hospital system.  Similarly he may qualify for assistance with respect to his alcohol abuse either by a public facility or some other government funded institution.

24.     I would recommend that Mr Vidovic discuss the contents of this decision and my recommendations with his doctors.

25.     I would also recommend that a Centrelink Social Worker interview Mr Vidovic and or meet with his wife and children to discuss these issues.  A Social Worker at the Fountain Gate Office of Centrelink (or at the Dandenong Hospital or Monash Medical Centre, being major hospitals close to the applicant’s residence) being familiar with appropriately qualified persons and hospitals and other treating facilities in the district where he lives may be able to either refer Mr Vidovic or arrange for him to attend suitably qualified persons.  There are many community based organisations which could assist Mr Vidovic, the identity of which can be found on the web site of the Victorian Department of Human Services ( the absence of appropriate treatment for these illnesses I could not find that these conditions have stabilised and therefore become permanent.  Only at that stage could there be an appropriate and proper assessment of the applicant’s entitlement to DSP.  Of course it is to be hoped that with appropriate treatment Mr Vidovic can make a successful return to the workforce.

27.     For the reasons given above, Mr Vidovic does not attract 20 impairment points.  It is not necessary, in these circumstances to consider whether he has a continuing inability to work.

28.     In all of the circumstances the decision under review is affirmed.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior Member

Signed:         Holly Weston
  Associate

Date of Hearing  4 October 2004
Date of Decision  12 October 2004
Solicitor for the Applicant          Self Represented
Departmental Advocate            Ms E King