Vukic and Secretary, Department of Family and Community Services

[2000] AATA 932

DECISION AND REASONS FOR DECISION [2000] AATA 932

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  N1999/1900

GENERAL ADMINISTRATIVE DIVISION          )                  
           Re      VIOLETA VUKIC    
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES  
  Respondent

DECISION

Tribunal       Dr JD Campbell       

Date26 October 2000

PlaceSydney

Decision      The Tribunal affirms the decision under review.           

Dr JD Campbell
  Member
CATCHWORDS

SOCIAL SECURITY – disability support pension – application – multiple conditions – assessment – continuing inability to work

Social Security Act 1991, sections 94, 100, schedule 1B

REASONS FOR DECISION

Dr J D Campbell, Member.

1. Mrs Violeta Vukic ("the Applicant") in this matter seeks a review of the decision of the Social Security Appeals Tribunal ("the SSAT") dated 10 November 1999 which affirmed the decision of a Centrelink delegate of the Secretary, Department of Family and Community Services ('the Respondent") dated 9 January 1999 to reject the Applicant's claim for disability support pension. This decision had been further reviewed and affirmed by an authorised review officer in a decision dated 20 June 1999.

2. A hearing was held before the Tribunal on 28 June 2000 at which the self represented Applicant gave oral evidence. The Respondent was represented by Ms Smith, an advocate from the Advocacy and Administrative Law Section of Centrelink.

3. The following material was placed in evidence before the Tribunal:
   Exhibit No.   Description  Date  
   T1-T12          pp 1-106           Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.
   A1      Treating doctors report (Dr Bajpe).          4 March 2000           
   A2      Medical report of Dr Bajpe. 19 April 2000
   R1      Respondent's statement of facts and contentions.       20 April 2000
   R2      Extract of letter re sole parent pension. 20 April 2000
   R3      Letter from the Respondent to Mrs Vukic.         9 January 1999       
   R4      Letter from the Respondent to Mrs Vukic.          24 April 1999
   R5      Whole person assessment report. 3 April 2000  

Issues:

1. The relevant issues in this matter are:

   (1) whether, for the purposes of subsection 94(1) of the Social Security Act 1991, the Applicant has a physical, intellectual or psychiatric impairment and whether that impairment is 20 points or more under the impairment tables in Schedule 1B; and
   (2) if so, whether the impairment is of itself sufficient to prevent the Applicant:

   ·     from doing any work within the next two years; and

   ·     from undertaking educational or vocational training or on-the-job training during the next two years; or

   ·     whether such training is unlikely (because of the impairment) to enable the Applicant to do any work within the next two years.

Legislation:

1. The relevant legislation in this matter is the Social Security Act 1991 ("the Act") and in particular sections 94(1), (2), (3), (4), (5), 100(3) and the Tables for the assessment of work-related impairment for disability support pension (Schedule 1B Impairment Tables).
   Background:

2. The Applicant made a claim for disability support pension on 1 October 1998 (T3). An accompanying treating doctors report was also lodged on 1 October 1998 (T4). A medical assessment report was undertaken by Dr S Ryerson on 7 January 1999 (T5). The Applicant's claim was refused on 9 January 1999 (Exhibit R3). A further treating doctor's report was lodged on 20 January 1999 (T6). An authorised review officer affirmed the rejection of the claim on 20 June 1999 (T11). A further medical report from the treating doctor was received on 1 November 1999 (T12). The SSAT affirmed the decision to reject the Applicant's claim on 10 November 1999 (T2).
   Applicant's Evidence:

3. The Applicant informed the Tribunal that she was born on 26 February 1959 in Macedonia and left school after eight years of schooling at age 14. The Applicant indicated that on leaving school she wished to be a machinist, but instead became a waitress, marrying at age 17 and coming to Australia in 1976 with her husband, who was twenty years older than her. Her children were born in 1976 and 1979, during which time the Applicant remained at home, having little external social contact. She stated that she divorced her husband in 1982 because of significant marital difficulties. In 1990 the Applicant stated that she remarried, had a further child and was separated/divorced in late 1991.

4. The Applicant further stated that she lives in a housing commission house with her two sons (one is 24 and works as a carpenter, the other is 21 and works as a mechanic) and her daughter. She does most of the cleaning, cooking and washing, although experiences some difficulty with vacuuming and hanging out large items of washing. Her sons help her with larger shopping activities. The Applicant stated that she is able to understand and speak in English, but cannot write in English. She stated that she is fluent in Russian, Greek and Macedonian, and that she has been attending English classes three days a week, which she enjoys.

5. The Applicant told the Tribunal that she no longer drives a car, because the doctor said it was not advisable because of the amount of medication that she was taking. She stated that she walks to where she does her shopping and to the train station to catch public transport, but experiences pains in her leg and where she underwent surgery for varicose veins. She also experiences pain when sitting for long periods and stated that she has more difficulty descending stairs than ascending stairs. The Applicant indicated that both sons were on income support payments, one of whom pays to have the grass cut. The Applicant stated that she experiences difficulty with sleeping, does not like going out (although goes to clubs once a month), visits neighbours, occasionally watches television and reads books for short periods.

6. The Applicant described the history and clinical features of her various medical conditions in the following terms:

   (a)Leg pain: operation for varicose veins in 1994; thrombosis occurred in two places in 1997 at which time she was treated in hospital for five days with bed rest and Warfarin (anti-coagulant); constantly experiences pain in her toes which goes up her leg even when lying down and worse when walking; takes Panadeine Forte and Panamax for the pain.

   (b)Low back pain: has experienced pain in low back posteriorly for more than ten years; experiences a gripping pain when sitting for a long period.

   (c)Neck pain: for the last three to four years has experienced pain in back of neck which radiates to shoulders; pain extends to back of head causing headaches.

   (d)Stomach pain: generalised abdominal pain all the time, which is worse when she has more pain in the legs; often wants to vomit after eating food.

   (e)Hypertension: always high; takes no medication for this condition.

   (f)Anxiety and depression: occurred since her operation; cannot sleep or rest; sometimes locks herself in a room.

1. In answers to questions in cross examination, the Applicant stated that she has headaches everyday for three to four hours, and that they become worse when the weather changes. Further she stated that she could walk for fifteen to twenty minutes and that her English studies were for three hours three times a week.
   Medical evidence:

2. In a treating doctor's report dated 10 October 1998, Dr Bajpe described the Applicant's medical conditions in the following terms:

   (a)Venous claudication of the left leg: claudication in left leg with pain due to compression of left common iliac vein by aortic bifurcation; stint placement in August 1997; long term and fluctuating.

   (b)Cervical spondylosis: painful neck and shoulders since 1998; long term and stable; physiotherapy and analgesics.

In comment Dr Bajpe believed that the Applicant would not be able to return to her usual job of process worker or any other full-time job for more than two years, but may be able to return to part-time work in one to two years. Dr Bajpe also considered that the Applicant's work ability would be affected by the following factors:

·absences from work for four or more days per month

·inability to work a full day because of a lack of endurance

·inability to understand and follow instructions more than half the time

·inability to communicate

·inability to travel or move around independently

·substantially diminished dexterity

·behaviour that would pose serious risk to herself or others safety

·would not be able to alternate between tasks

·inability to lift, carry or move objects  (T4).

1. Dr S Ryerson, a medical adviser with Health Services Australia, in a whole person assessment of the Applicant concluded in a report dated 7 January 1999:

   "Ms Violeta Vukic, aged 39, has been on sole parent pension for 5 years. She has never worked outside the home and left school at 14. However, she can speak and read Macedonian, Russian and Serbian. She is unable to read and write English, saying she has not had time to learn. Her spoken English is accented but easily understood.
   Her main problems for work are related to her limited ability to stand or walk for prolonged periods. In addition, she found the pains in her leg and stomach not helped by surgery last year for varicose veins and slowed circulation in the veins on the left leg. She is self caring except her son does the shopping. She can manage public transport. She lives in a townhouse with 12 stairs and does some of the housework and cooking.
   She has pain in her neck and across her shoulders but is fearful of the exercises prescribed for treatment. She takes analgesics daily although she was alert and oriented. She needs to avoid prolonged positions with her neck and be able to move about as needed. She needs to avoid heavy lifting and carrying and pushing and pulling heavy objects also.
   Her treating doctor, despite having a Master's degree in psychotherapy did not mention that she had a reactive depression and anxiety about her leg problem although that was apparent today. She says she is not interested in treatment for the anxieties and fatigue.
   The treating doctor was unavailable when I had time to ring. However, I had no difficulty understanding her accented English, she had no problems concentrating for 45 minutes and understood what I was saying. There was no evidence of serious and severe mental illness such that she posed a danger to herself and others and she showed no confusion in alternating between tasks in the short term. Her manual dexterity showed precision and normal power although she needs to avoid high impact and prolonged repetitive fast movements because of the neck pain. She came to the interview by herself and had a normal gait.
   Her impairment rating today is 15%.
   She is temporarily unfit for full-time work but hopefully she can access training courses for English literacy and work readiness. I feel she needs to start on a part-time basis and work up from there. She should be able in 6 to 12 months to do some light sedentary part-time work and eventually be an interpreter or telephonist after becoming literate in English." (T5)

1. In a further treating doctor's report dated 20 January 1999, Dr Bajpe described the Applicant's medical conditions and their clinical features in the following terms:

   (a)Venous claudication left leg: atypical claudication of left leg causing pain; long term and constant; present since 1994.

   (b)Chronic gastroesophageal reflux: persistent epigastric pain with reflux since July 1994; long term and fluctuating; treated with long term H2 receptor antagonists.

   (c)Cervical and lumbar spondylosis: painful neck and shoulder; painful lower back; present since April 1998; long term and fluctuating; treated with analgesics.

   (d)Migraine headaches: frequent episodes of moderate to severe migraine with nausea and photophobia since 1978; long term and fluctuating.

In general commentary Dr Bajpe did not alter his view on the Applicant's ability to work nor on the effect of the Applicant's disabilities on her ability to work (T6).

1. In a further whole person assessment report dated 19 April 1999 Dr Reading, a medical adviser with Health Services Australia, summarised her findings and gave the following opinion:

   "This 39 year old woman has never worked.
   She was originally examined for a disability support claim on 7 January 1999.
   She has asked for reassessment today in regards to her application.
   Her assessment was difficult due to marked functional overlay. Her symptoms grossly exceeded the available clinical signs.
   Combining my clinical assessment today with telephone evidence from her other GP, her medical problems are clearly:

   ·     Minor venous disease of the lower (L) leg

   ·     Controlled reflux

   ·     Mild cervical spondylosis

   ·     Minor lumbar spondylosis

   ·     Mild frequent headaches that do not affect the client's normal activities

   Her GP stated that there were no other health problems and that the client coped well with her normal activities.
   With assistance from the client's GP, the permanent impairment rating should be adjusted to that of 5.
   Both the client's GP and myself were in complete agreement that the client was currently fit for full-time light work.
   Her GP felt that the only real issue was a lack of  motivation by the client and he firmly supported moves to encourage her to enter the workforce." (T7).

1. A further treating doctor's report was lodged on 1 March 2000 in which Dr Bajpe detailed the Applicant's conditions as:

   (a)chronic pain syndrome due to cervical and lumbar spondylosis and disc pathology;

   (b)chronic non ulcer dyspepsia;

   (c)migraine headaches;

   (d)chronic anxiety state and depression;

   (e)left iliac vein compression syndrome;

   (f)obesity  (Exhibit A1).

1. In a separate report dated 19 April 2000, Dr Bajpe again details the Applicant's medical condition which is similar to his treating doctor's report of 1 March 2000. He indicates that the Applicant had also been examined by a psychiatrist in early 2000 (Exhibit A2).

2. In a further whole person assessment dated 3 April 2000, Dr Chew, a medical adviser with Health Services Australia concluded that the Applicant had two significant impairments, namely neck pain and back pain (Exhibit R5).
   Submissions:

3. The Applicant submitted that she suffers from particular impairments which on proper assessment would have a combined impairment rating of 20 points or greater. Further the Applicant contends that she has a continuing inability to work, and in this regard relies upon the various reports of Dr Bajpe. As a consequence the Applicant contends that she qualified for disability support pension at the time of application.

4. The Respondent contends that upon proper examination and assessment of the Applicant's various medical conditions, the Applicant has a combined impairment rating of less than 20 points. Further the Respondent contends that the Applicant does not have a continuing inability to work and in so stating relies upon the various medical assessments of the medical adviser from Health Services Australia. As a consequence the Respondent submits that the Applicant did not qualify for disability support pension at the time of application.  
   Considerations and findings:

5. The Tribunal in considering this matter notes the following relevant legislation, namely subsections 94(1) in part, (2), (3), (4) and (5):

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

   (a)the person has 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;

   …

   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 purpose 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.

6. The Tribunal, in further preliminary observations, notes that subsection 100(3) of the Act focuses the Tribunal's attention and deliberation on material adduced during the period commencing with lodgement of the claim for disability support pension and for a period of three months thereafter, commencing the day after lodgement. Material either before or after this period ("the operative period") may be used only where it assists the Tribunal in gaining a better understanding of the Applicant's impairments, her clinical features and their effect on the Applicant's work ability during the operative period.

7. The Tribunal has carefully detailed the Applicant's medical conditions, their clinical features and their effect on the Applicant's work ability as described by the Applicant, her treating doctor and the medical advisers from Health Services Australia. The Tribunal observes that the reports relating to March and April 2000 are well outside the operative period and would appear to relate to a further claim. The Tribunal does note that the Applicant has been referred for psychiatric assessment in early 2000, and that a course of therapy prescribed has caused the Applicant difficulty. As a consequence it is evident that the Applicant's condition of anxiety and depression, while having been assessed, and for which no report has been provided, remains to be satisfactorily treated.

8. In further preliminary comment, the Tribunal notes that the relevant treating doctor's reports are lacking in diagnostic detail (no relevant x-ray reports of lumbar or cervical spinal) and in definition of clinical features (range of loss of movement). Further the Tribunal comments that while Dr Bajpe's assessment of  the Applicant's medical conditions upon her work ability have been consistent, they are clearly at odds with those of the medical advisers, and would appear to reflect a particularly negative assessment of the Applicant's work capacity. 

9. The Tribunal, having made a careful assessment of all the underlying material finds that the Applicant had the following impairments/disabilities during the operative period with the following associated clinical features:

   (a)Venous claudication left leg: suffers pain in left leg arising from intermittent pressure on left common iliac vein; does not interfere with gait and can walk for 20 minutes before stopping because of pain; can drive a car; can do most household tasks; uses public transport; fully investigated; anti-coagulated; uses analgesics for pain.

   (b)Neck pain: neck pain; some radiation to shoulders and head (headaches); no diagnostic x-rays available; loss of one quarter of normal range of cervical spine movement; uses analgesics.

   (c)Low back pain: low back pain posteriorly; no radiation; no diagnostic x-rays; loss of one quarter normal range of thoraco lumbar sacral spinal movement; uses analgesics.

   (d)Epigastric pain: intermittent; worse with stress; no diagnostic evidence of reflux or ulcer ; diagnostic endeavour continuing.

   (e)Hypertension: no evidence of hypertension or medication.

   (f)Anxiety and depression: difficulty with sleeping; onset after operation; no medication.

   (g)Headaches: frequent; associated with tension; no defined associated symptomology; no diagnostic work-up.

1. As a consequence of these findings the Tribunal finds that the Applicant satisfies subsection 94(1)(a) of the Act.

2. In turning to the assessments of the various impairments, the Tribunal makes the following findings for each impairment in accordance with the appropriate Schedule 1B impairment nominated:

   (a)Venous claudication left leg: the Applicant is able to walk for twenty minutes; normal gait; able to use public transport; can drive a car. Nil rating under table 4.

   (b)Cervical spine pain: pain in neck intermittent posteriorly and across shoulders; loss of one quarter of normal range of movement of cervical spine. 5 point rating under table 5.1.

   (c)Lumbar spine pain: pain posterior lumbar spine; intermittent; loss of one quarter of the normal range of movement of thoraco-lumbo-sacral spine; no radiation. 5 point rating under table 5.2.

   (d)Epigastric pain: epigastric pain intermittent and mild; various treatments with reasonable response; further diagnostic endoscopies to occur. Nil point rating under table 20.

   (e)Hypertension: No evidence of hypertension or treatment. Nil point rating under table 20.

   (f)Anxiety and depression: Difficulty with sleeping; no evidence of interference with everyday function; no evidence of medical therapy at operative period. Nil point rating under table 6.

   (g)Headaches: daily; minor symptoms which are tolerated; uses analgesics. Nil point rating under table 2.4. (Level nil 21.1, resorption medium 21.2 and security grading code A under 21.3).

1. As a consequence of the Tribunal's findings the Applicant has a combined assessment rating of 10 points, and accordingly it is the Tribunal's finding that the Applicant does not satisfy subsection 94(1)(b) of the Act.

2. In considering the Applicant's ability to work, the Tribunal notes the nature of and the effect that each of the Applicant's impairments has on her ability to work. In terms of significant observations, the cervical and lumbar spinal impairments do affect the Applicant's work ability in terms of prolonged sitting and standing, lifting, carrying and repetitive bending, with the venous claudication affecting ability to undertake prolonged walking activities. The Tribunal has already made the observation that the treating doctor's findings on the Applicant's affected work abilities are inconsistent with that of the other medical opinions, and the Tribunal concludes, having listened to and observed the Applicant, that the Applicant's impairments do not interfere with her ability to communicate, nor with her ability to follow instructions. The Tribunal finds that she would be able to undertake a variety of tasks without difficulty, and she would be able to interact with others. The Tribunal also concludes that the Applicant could persist at work tasks for up to 90 minutes, and that her mobility would be constrained in some situations.

3. In reaching these conclusions the Tribunal has relied upon the Applicant's description of her impairments and the limitations they impose upon her as well as the opinions expressed by the two medical advisers given during the operative period (or in the case of Dr Reading at a point in time where particular and appropriate inferences can be drawn). The Tribunal finds that much of the treating doctor's assessment of the Applicant's work ability in the light of her nominated impairments is clearly overstated and not consistent with the clinical features described.

4. The Tribunal, having made particular findings in relation to the Applicant's work ability, further finds that the Applicant does not have a continuing inability to work. In making such a finding the Tribunal has relied upon the nature and effects of the impairments on the Applicant's work ability and the opinions of Drs Ryerson and Reading, where they have stated that the Applicant is able to return to work within two years in a range of light work categories, and that her return to work would be assisted by appropriate educational or vocational training. The Tribunal does not accept the opinion of Dr Bajpe, as has already been stated. It has found that Dr Bajpe's assessment of the Applicant's impairments on her work ability are overstated and inconsistent with the nature and effect of the impairments.

5. In making such a finding that the Applicant does not have a continuing inability to work, the Tribunal did consider whether the Applicant's impairments would prevent her from undertaking vocational or educational or on-the-job training programs within two years and concluded that she would be able to do so. Similarly the Tribunal considered whether the Applicant, having undertaken such activities, would be unlikely because of her impairments to take up work within two years and found that this would not be the case.

6. Thus it is the Tribunal's finding that the Applicant does not satisfy subsection 94(1)(c)(i), in that she does not satisfy subsection 94(2)(a) and either of 94(2)(b)(i) or (ii). In view of the Tribunal's findings the Applicant does not meet the qualifications for the grant of the disability support pension for the claim under consideration.
   Determination:

7. The Tribunal affirms the decision under review.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for the decision herein of Dr JD Campbell

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

Date/s of Hearing  10 July 2000
Date of Decision  26 October 2000
Advocate for the Applicant       Mrs Buckley
Solicitor for the Respondent    Mr Rodney