Vrselja and Secretary to the Department of Family and Community S Ervices

[2002] AATA 1348

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2002] AATA 1348

ADMINISTRATIVE APPEALS TRIBUNAL
  Nº V2002/365

GENERAL  ADMINISTRATIVE  DIVISION

Re:         BOJA VRSELJA

Applicant

And:       SECRETARY TO THE
  DEPARTMENT OF FAMILY AND

COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       Miss E.A. Shanahan, Member

Date:             31 October 2002

Place:            Melbourne

Decision:      The Tribunal affirms the decision under review.

(sgd) E.A. Shanahan

Member

SOCIAL SECURITY - disability support pension - cancellation of pension on the grounds of ineligibility

Social Security Act 1991 ss94(1), 94(2), 94(3), 94(5)

Social Security (Administration) Act 1999 s.80

REASONS FOR DECISION

31 October 2002  Miss E. A. Shanahan, Member

1.      This is an application for review of a decision made by a Centrelink delegate on 23 November 2000 to cancel the applicant’s disability support pension (DSP).  This decision was affirmed by an Authorised Review Officer (“ARO”) on 6 September 2001 and was also affirmed by the Social Security Appeals Tribunal (“SSAT”) on 15 March 2002.  The applicant had been in receipt of the DSP from 29 June 1998 and had been advised that this would be paid for a period of 12 months while she resided overseas.  She returned to Australia within the period  of  12 months and her DSP was continued.  The date of recommencement was 23 September 1999 and was again paid for a period of 12 months.  When she did not return to Australia within the 12-month period her DSP was cancelled on 23 September 2000.  The applicant lodged a new claim for DSP on 25 October 2000 and this claim was rejected on the grounds that her impairment rating was 5 points.

2. At the hearing the applicant was represented by Ms M. Kowalski of counsel and the Secretary to the Department of Family and Community Services by Ms P. D’Cunha, a Centrelink advocate. The Tribunal had before it documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act1975 (the T documents).  The applicant tendered a report from her general practitioner Dr D. Pinto, dated 28 October 2002 (exhibit A1) and the translated report of Dr Mihael Pregernig, specialist for neural and mental diseases, in Croatia  (exhibit A2).  This translation was dated 15 September 2002.  The applicant gave evidence in person as did her husband, Mr Zvolko Vrselja, and her son, Mr Ned Vrselja.  Both the applicant and her husband were assisted in the giving of their evidence by Mr Trevor Ballen, an interpreter in the Croatian language. 

Background To The Application

3.      The applicant first received DSP from 29 June 1998.  She had been diagnosed as suffering from degenerative disease of the back, a right rotator cuff syndrome and neck pain.  She had experienced back pain since the mid‑1980s when she injured her back at work when employed in a carpet factory.  She had subsequently worked in a factory manufacturing timers for washing machines but found she was unable to cope with this job which involved sitting in the one position for lengthy periods of time.  In 1998 her treating general practitioner certified that she would be unable to work for the next two years and would not benefit from vocational training.  Six days after the grant of DSP the applicant went to Croatia to live, her husband having moved there some months previously.  She was advised that DSP would be paid to her overseas for a period of 12 months.  She returned to Australia on 1 July 1999 and her DSP was renewed on 23 September 1999.  She returned to Australia again on 29 September 2000, her DSP having been cancelled some six days previously.  A new application was lodged on 25 October 2000.  Her treating general practitioner again certified that she was suffering from degenerative disc disease and would be unable to work for more than two years.  The applicant was then examined by a Health Services Australia Ltd (HSA) Examining Medical Officer who found that the applicant suffered from a thoracolumbar spinal condition, an aching right shoulder, varicose veins, elevated cholesterol levels and occasional dyspepsia.  The latter was found to be a temporary condition.  An impairment rating of 5 points was determined for the back condition and nil points for all the other conditions.  The applicant was found fit for full-time work provided this did not involve heavy lifting, repeated bending, standing for long periods or walking for long periods. DSP was paid for a period of 42 days after the advice of the cancellation was given.  Payment ceased after 2 January 2001.  Review by an ARO was sought and the decision of the Centrelink delegate was affirmed.  The applicant then appealed to the SSAT.  The decision under review was affirmed. However, the Tribunal assessed the impairment at 10 points under Table 5.2 based on a 25% loss of normal range of movement of the thoracolumbar spine.

Evidence Before The Tribunal

4.      The applicant gave evidence that she had last worked in 1994 or 1996.  She had been employed in the manufacture of timers for washing machines, but had had to stop because of constant back pain, due to prolonged sitting.  Since that time she had been unable to do any heavy work or lifting because of pain in the back and the right leg.  These symptoms were accentuated by cold weather.  On direct questioning by Ms Kowalski, she also admitted to pain in the right arm and right shoulder and could not carry anything in her right hand because of pain and lack of strength in her arm.  She stated that she could stand for periods of half-an-hour, sometimes less, sometimes more, but would then have to rest because of her back pain.  Sitting was also limited to half to one hour.  When the pain was severe she would lie down, take a Voltaren tablet and apply a hot water bottle until the pain settled.  She had originally been treated with Brufen but was now taking Voltaren and Zantac.  Zantac had been prescribed because of some degree of indigestion.  When asked if the pain affected her ability to concentrate, she answered that it was easier to concentrate when taking her tablets.  For example, she could read a book if she had taken her Voltaren.  The applicant claims she still had problems with her varicose veins, which had been operated on at the Footscray Hospital, in 1984 or 1985.  Whilst residing in Croatia she had consulted a specialist regarding mental or psychological problems.  She stated she was constantly unhappy and not in a good mood. 

5.      Under cross-examination by Ms D’Cunha, the applicant agreed she had relocated to Croatia as soon as her DSP was granted.  Her husband had moved to Croatia in 1997.   She explained her failure to return to Australia before 23 September 2000 as being due to her husband’s ill health at the time and an inability to obtain an aeroplane flight because of heavy bookings for the Olympic Games.  Ms D’Cunha questioned the applicant regarding her activities in the home.  The applicant was able to cook meals provided her back was not too painful.  She was not able to carry any shopping or heavy weights and spent her days sitting, taking little walks, watching television and occasionally being visited by her cousins.  She did not do the house cleaning.  The applicant continued to see her general practitioner in Croatia once every two to four weeks and had also seen a neurologist, Dr Popovic, and a surgeon, Dr Rhimac.  She agreed that the pain in her neck and right shoulder varies and at times she is pain free.  While it was noted she had told the SSAT that her major problem was a pain in the right leg, she disagreed with this and said the pain had always involved her back and her leg.  In 2001, when her son had come to visit her in Croatia, she had been confined to bed for a period of four weeks because of the severity of back pain.  Despite having the Voltaren prescribed on a regular basis, the applicant stated she only took it when the pain was severe because she wished to avoid side‑effects. 

6.      The Tribunal asked the applicant to outline her activities of the day before.  She answered that she had visited the bank, had already cooked the food for the day and had been visited by one friend.  She and her husband were currently living with their son Ned, in Murrumbeena.  She confirmed that she only took her anti‑inflammatory medication when the pain was severe. 

7.      The applicant’s husband, Mr Zvolko Vrselja, gave evidence before the Tribunal and confirmed that he was currently living with his son Ned in Murrumbeena.  Mr Vrselja confirmed that his wife had suffered a back injury while working at a carpet factory in the 1980s.  He stated the current situation was that occasionally she had to be helped out of bed, but she was not so bad that she could not do anything and generally was able to do all the cooking and managed the cleaning when her symptoms were minimal.  However, he was not aware of the frequency with which she could not cook or clean the house.  Her social activities were limited to occasional visiting and attending church.  With respect to the direct question by Ms Kowalski regarding the applicant’s psychological state/moods, Mr Vrselja could not comment accurately stating that when his wife was in pain her spirits were low.  He believed the symptoms have been present for some fifteen to sixteen years and he doubted she would improve with the passage of time.  Under cross-examination, the witness stated he did not really observe his wife’s activity to any degree.  He also advised that his wife was incapable of cooking meals approximately once per month.  In re-examination, Ms Kowalski asked whether during these periods of pain the applicant was limited to cooking a basic meal but Mr Vrselja could not comment on this, as he stated he was no expert in cooking.  The Tribunal asked Mr Vrselja what medication his wife was taking and he stated he had no knowledge of her medication. 

8.      The applicant’s son, Mr Ned Vrselja, gave evidence that he saw his mother approximately once per year and that this had been the situation for the past four to five years.  In July 2001 he had visited his mother in Croatia at which time she was bedridden for the one-and-a-half to two weeks while he visited.  He stated she only got up to wash herself and go to the toilet..  He agreed that his mother’s symptoms have been present for approximately fifteen years and in his opinion her back pain had deteriorated over this period of time.  To his knowledge there were days when his mother was quite well and able to do all things and at other times she was incapacitated by her back pain.  While she had been staying with him in Australia she had been able to do all the cooking but could not do any of the cleaning.  Ned himself did the vacuuming and general cleaning of his home.  He confirmed that his mother could not carry anything more than clothing and that she relied on him or his siblings to carry any shopping or weights of any significance.  Ned felt that his mother’s mental or psychological demeanour was related to her separation from her children, all of whom live in Australia.  On direct questioning by the Tribunal the witness did not know when his mother had developed gastrointestinal symptoms and stated that, to his knowledge, she had always suffered from regurgitation and excessive burping. 

Medical Evidence Before The Tribunal

9.      On 15 July 1997 Dr Pinto provided a medical report to the effect that the applicant had degenerative disc disease dating from 1980 and would not be able to return to work for a period of two years or more.  It was on the basis of this report that the applicant received DSP.  Dr Pinto confirmed his diagnosis on 12 May 1998.  On 5 June 1998 Dr Bisas of HSA accepted Dr Pinto’s report, finding the applicant unfit for all full‑time open market work for the foreseeable future. 

10.     Dr Pinto provided a further report dated 13 October 2000 in which he stated the diagnosis was degenerative lumbar spondylosis giving rise to back pain, restricted movement with X-ray evidence of severe disc degeneration of the lumbosacral spine and right sacroiliac osteoarthrosis. 

11.     At the request of the Department of Family and Community Services Dr T. Poulson (HSA) assessed the applicant.  Dr Poulson noted a history of back pain dating from 1983, the current symptoms of back pain which wax and wane and frequent sciatica.  The applicant also complained of right shoulder pain, which at that time was undiagnosed.  Dr Poulson found that thoracolumbar spinal movement was reduced by 25% and that there were no neurological defects in the lower limbs.  Dr Poulson found the applicant suitable for full-time work, provided this did not involve repeated bending, lifting or excessive standing or prolonged working for example.  She advised the applicant would be fit for work as a light processor/assembly worker, provided this could be performed at bench or table level.  Clerical work was also appropriate.  On the basis of Dr Poulson’s report, DSP was cancelled. 

12.     A further report was received from Dr Pinto dated 27 February 2001.  On this occasion the diagnosis was severe disc degeneration of the lumbosacral discs, chronic back pain, left knee pain of unknown aetiology, varicose veins of both legs present since 1985, although operated upon, chronic neck pain and rotator cuff injury of the right shoulder.   All of this led Dr Pinto to certify that the applicant would not be fit for any occupation for more than two years.

13.     Dr Pinto provided a further report dated 28 October 2002, in which he provided a diagnosis of cervical spondylosis, lumbar spondylosis and facet joint arthritis in the lumbar spine.  He assessed her as being moderately severely limited in daily activities by pain.  He was of the opinion that the applicant’s injuries were permanent with a disability of about 20%. 

14.     The Tribunal had before it reports from treating doctors in Croatia, which had been translated into the English language.  A report was received on 18 February 2002 from a Dr N. Reemak who had performed what would appear to be a gastroscopy as a result of the applicant complaining of epigastric queasiness and nausea.  As a result of this endoscopy a diagnosis of duodenal ulcer was made.  Appropriate medication was given and continues. 

15.     A report (translated by Frank Manier Interpreting Pty Ltd) was also received from Dr Mihael Pregernig, a specialist in neural and mental diseases, dated 15 September 2002.  Dr Pregernig reported a history of spinal pain in the region of the neck and right shoulder, aggravated by movement and associated with numbness of the fingers in her right hand.  In addition, the applicant had reported pain in the sacral area radiating to the right leg with some associated numbness of the right leg.  He noted that she had bilateral varicose veins giving rise to aching in the legs and on a psychological level the applicant continued to suffer from sleeping disorders, low mood, disinterest in any activities and enjoyment of life.  Examination revealed muscle spasm around the spine, painful and reduced mobility of the neck to the right side, paraspinal muscle spasm in the sacral region, straight leg raising limited to 65 degrees on the left and paraesthesia and hyperaesthesia at L4-5 and S1 distribution on the right.  Both knees were painful on movement and the lower limb showed bilateral varicosities.  Dr Pregernig assessed the patient’s psychological status as being of low basic mood with sleep disorder and loss of perspective.  His ultimate diagnosis was cervical discopathy at a C4-5 and C5-6 level and symptomatic lumbo‑sacral radiculopathy with secondary depression.  Voltaren, Tramal and Zoloft were prescribed. 

Relevant Legislation

16. The relevant legislation is contained in s94 of the Social Security Act 1991 (the Act), which states:

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;

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

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.(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.

Section 80 of the Social Security (Administration) Act 1999 states:

80.(1)      If the Secretary is satisfied that a social security payment is being, or has been, paid to a person:

(a)      who is not, or was not, qualified for the payment; or

(b)      to whom the payment is not, or was not, payable;

the Secretary is to determine that the payment is to be cancelled or suspended.

80.(2)      Subsection (1) does not authorise the Secretary to make a determination if:

(a)the payment of a social security payment to a person has been cancelled or suspended by the operation of another provision of the social security law; and

(b)the determination would take effect at or after the time at which the cancellation or suspension referred to in paragraph (a) would take effect.

Application Of Legislation To The Factor Before The Tribunal

17.     The respondent’s medical officer, Dr Paulson, found the applicant to be suffering from varicose veins, raised cholesterol levels and a back condition resulting in pain and limitation of movement.  Dr Paulson assigned an impairment rating of 5 points for the back condition and nil points for the other complaints.  The SSAT determined that the applicant’s back pain attracted an impairment rating of 10 points.  In contrast, the treating general practitioner, Dr Pinto, assessed the applicant's disability at 20 points.  All other conditions for which the applicant had lodged a claim remained to be further investigated, treated and stabilised. 

18. The Tribunal is satisfied that the disability rating is of the order of 10 points and that the applicant satisfies the requirement of s.94(1) of the Act.

19. As Dr Paulson has assessed the applicant as capable of working at least part‑time, s.94(2) of the Act is not satisfied and the applicant is not qualified for DSP. The cancellation of DSP on the basis of s.80(1) of the Social Security (Administration) Act 1999 is correct. 

20.     The Tribunal affirms the decision under review.

I certify that the twenty [20] preceding paragraphs are a true copy of the reasons for the decision herein of

Miss E.A. Shanahan, Member

(sgd)     Catherine Thomas

Clerk

Date of hearing:  31 October 2002
Date of decision:  31 October 2002
Counsel for the applicant:            Mr M. Kowalski
Solicitor for the applicant:            Causovski & Halikopoulos

Advocate for the respondent:       Ms P. D'Cuna, Centrelink Advocate