Zanic and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1713

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1713

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V 200600468

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		MIROSLAV ZANIC

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Miss E.A. Shanahan, Member

Date30 August 2007

PlaceMelbourne

Decision In accordance with s 42D of the Administrative Appeals Tribunal Act 1975, the Tribunal remits the matter to the Respondent for further consideration of the medical evidence, the obtaining of further medical evidence where appropriate and the correction of the erroneous Centrelink entries that the Applicant had been undertaking paid work.

(sgd) E.A. Shanahan

Member

SOCIAL SECURITY ‑ disability support pension – back injury dating from 1995 – off work since 1995 – other medical conditions – incorrect Centrelink data coding – administrative error – remit to Respondent for reconsideration.

Social Security Act 1991 s 94

Administrative Appeals Act 1975  s 42D

REASONS FOR DECISION

30 August 2007 Miss E.A. Shanahan, Member      

1. Mr M. Zanic applied for the disability support pension (DSP) on 19 December 2005. His claim was rejected on 23 January 2006 on the basis that he did not satisfy s 94(1)(b) of the Social Security Act 1991 (the Act) as his back pain and lumbar spine arthritis attracted only 10 impairment points. An Authorised Review Officer (ARO) confirmed this decision on 21 February 2006. On 5 May 2006 the Social Security Appeals Tribunal (the SSAT) assessed his impairment at 20 points thus satisfying s 94(1)(b) but found no medical barrier preventing Mr Zanic from working 30 hours per week or retraining. Thus he failed to satisfy s 94(1)(c). This conclusion was based on the functional capacity assessment on 7 February 2006. Mr Zanic applied to the Administrative Appeals Tribunal for a review of this decision on 5 June 2006.

2. Mr Zanic was represented by Mr H. Streager, a solicitor. The Secretary to the Department of Employment and Workplace Relations (the Respondent) was represented by Mr F. Bakhtiar, a Centrelink Advocate. Centrelink is a service provider for the Respondent. The Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T-Documents).  The Applicant tendered the following documentation:

·Job Capacity Assessment Report of 17 January 2007 – Exhibit A1

·Report of Dr L. Morris dated 1 March 2007 – Exhibit A2

·Report of Mr M. Anderson dated 14 March 2007 – Exhibit A3

The Tribunal has included the report of Dr L. Morris dated 21 September 2006 and for convenience has marked it as Exhibit A4.

The Respondent tendered the following documentation:

·   Report of Mr D. Addlem dated 10 July 2007 – Exhibit R1

·   Report of Mr J. Brennan dated 31 May 2007 – Exhibit R2

Mr and Mrs I. Zanic gave evidence at the hearing.

BACKGROUND

3.        Mr Zanic arrived in Australia as a migrant from Croatia at the age of 12 years.  He did not speak English.  He left school in 1973 aged 15 with limited abilities to read and write in English and commenced work as an apprentice bricklayer.  On completion of his apprenticeship he was self-employed and during this period was in receipt of unemployment benefits on two occasions for a period of a few weeks.  From mid-1994 he was employed by Demo Bricklaying Pty Ltd.  On 24 October 1995 he suffered acute onset of right shoulder pain radiating down his back after lifting a 16 foot brickies plank.  His back pain persisted.  Investigation in the form of a CT scan on 12 December 1995 revealed an L5/S1 right lateral disc protrusion.  He was referred to several medical specialists for Workers Compensation assessment and received WorkCover payments from October 1995 until December 2000.  In December 2000 he received a lump sum settlement of his claim.  He was made aware that the settlement precluded him from accessing Social Security income support payments until 19 December 2005. 

4.        On 2 July 1996 Mr R. Southby, neurosurgeon, diagnosed L5/S1 disc prolapse with sciatica unresponsive to conservative treatment.  Mr Southby was of the opinion that lumbar spinal surgery would eventually be required and in the meantime Mr Zanic was effectively permanently incapacitated for manual work (T10).  A whole person impairment of 19 per cent was assigned.

5.        A subsequent MRI scan in late 1996 reported no disc protrusion.  The only abnormality noted was L4/5 facet joint pathology and a minor disc bulge at this level.  Mr Southby maintained his opinion.  Mr I. Jones, orthopaedic surgeon, on 9 February 1999 assigned a whole person impairment of 26 per cent based on Mr Zanic’s back pathology.

6.        Mr Zanic’s back pain persisted, severely limiting his physical activity.  He became depressed and anxious and two psychiatrists subsequently diagnosed an adjustment disorder due to chronic pain.  Dr J. Honey assessed the whole person impairment due to psychiatric factors alone at 13 per cent and Dr P. Grainger-Smith a psychiatric whole person impairment of 20 per cent.

7.        All of the above assessments were made for WorkCover Victoria purposes using the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA2).

8.        Occupational health physician Dr C. Baker concluded Mr Zanic’s depression to be the major factor and assessed the physical condition as causing five per cent whole person impairment.

9.        Mr Zanic was referred to the Geelong Hospital Pain Clinic in August 1996 and was cared for by Dr M. Gray–Thompson, pain consultant, for many years.  On 25 January 1999 Dr Gray-Thompson certified Mr Zanic as having no capacity for gainful employment. 

10.      Mr Zanic, upon receipt of his WorkCover lump sum settlement and as his father was seriously ill, went to Croatia in late 2000 and stayed for 12 months.  During this period he met his now wife and they married in Australia in 2002.  In late May of 2007 their daughter Anna was born.

11.      Since 2003 Mrs Zanic has worked up to 30 hours per week in a pizza shop.  Mr Zanic is in receipt of newstart allowance (NSA) and has always met his activity statement requirements as well as reporting, on a fortnightly basis, his wife’s earnings.

12.      Mr Zanic has continued with conservative treatment and attends the Geelong Hospital pain management clinic weekly for physiotherapy, massage and psychological counselling. 

13.      On 27 July 2006 Mr Zanic was admitted to Geelong Hospital with urticaria believed to be allergic in origin.  He was discharged home on phenergan and prednisolone to be taken for three and two days respectively.  He was also supplied with an Epipen for emergency use.  His general practitioner Dr Morris reports that there was an episode of anaphylaxis on 19 December 2005 and an onset of asthma from 27 July 2006.  Dr Morris, in a letter of referral to a psychologist (Exhibit A2), provides a list of medication totalling in all twelve drugs.  While it might be a typographical error, Mr Zanic is said to be taking 100 milligrams of prednisolone daily.  At the medical assessment of 19 January 2006 (T34) Dr P. Tutton recorded that Mr Zanic was on no drug treatment and in the job capacity assessment of 17 January 2007, Mr Zanic’s medication is described as medication for allergies.

14.      Following the job capacity assessment of 17 January 2007, Mr Zanic was referred for vocational rehabilitation and while he attended his appointments he refused to actively participate as he believed that he didn’t have the capacity to do any work (Exhibit R1).  The Commonwealth Rehabilitation Service (CRS) closed his programme with the provider Konekt on 31 May 2007. 

15.      Centrelink records contain entries indicating Mr Zanic was working part-time for Pizza Express in 2006.

EVIDENCE BEFORE THE TRIBUNAL

Mr Zanic

16.      In his evidence Mr Zanic confirmed that he had not worked since 1995 and in particular had never worked in a pizza shop at any time, let alone in 2006.  He said that he declared his wife’s earnings as part of his NSA requirements and she had worked from 2004 to 2006 on a part-time basis.  His wife hoped to return to work in the near future, although their baby was only 6 weeks old. 

17.      Mr Zanic said his schooling had finished at the age of 15, having completed Form 3 but failed Form 4.  He then commenced a bricklaying apprenticeship and had never worked in any other capacity than as a bricklayer.  He estimated his ability to read and write in English as 30 to 40 out of 100.

18.      Mr Streager asked him to describe his current symptoms.  Mr Zanic said he went to bed between 9.00 p.m. and 10.30 p.m. and always awoke at 3.00 a.m. due to pain, would make coffee, walk around the house but more commonly go to his garage so as he would not wake his family and after an hour or two he would return to bed.  His broken sleep resulted in him feeling very tired in the mornings.  He was able to drive for 30 to 40 minutes but usually only drove for a period of 15 minutes, his ability to stand varied according to how he felt, and generally he could stand for 15 to 30 minutes.  Each morning he walked a short distance to purchase the paper and bread and on occasions he would walk around the block.  His ability to sit varied but was usually of the order of 30 minutes, sometimes more.  The only manner in which he could relieve his back pain was to lie down, preferably on the floor. 

19.      Over the years Mr Zanic has seen several back specialists, undergone chiropractic treatment, physiotherapy, massage and had cortisone injections into his back which had in fact made his pain worse.  He said he wanted to undergo surgery but the specialists had advised conservative treatment.  He continues to attend Geelong Pain Clinic once a week and to undertake physiotherapy.  More recently he had returned to see a psychologist but has only had one or two attendances.  He had previously seen the psychologist, Mr Anderson, from 1996 to 1998.  Mr Zanic did not believe he had the capacity to perform any work because of his level of back pain and his frequent need to lie down.  The latter would obviously interfere with any position such as a car park attendant or sales as suggested by the work job assessment.  Additionally, his reading and writing in English was insufficient for a sales position.  Mr Zanic confirmed he had been diagnosed with asthma in 2006 and said that in the past 12 months he had attended the Emergency Department of the Geelong Hospital thrice with attacks of severe dyspnoea.

20.      In cross-examination Mr Zanic confirmed that he had been in receipt of the job search allowance for a period of 7 weeks in 1994 and for a period of nearly 6 months late 1994 to 1995.  Both of these periods had resulted from a down-turn in work availability in Geelong and had forced him to look for work in Melbourne.  Since December 2005 he has been receiving NSA and satisfied the work requirements looking for two jobs each fortnightly period.  No employer was willing to take him on.  Mr Zanic said he had attended the rehabilitation service Konekt on two occasions, but he did not believe he could undertake rehabilitation.  He had been reluctant to sign papers presented to him by Konekt as he did not understand their content.

Mrs Zanic

21.      Mrs Zanic informed the Tribunal that she commenced work at Pizza Express in December 2003 or early 2004 and had continued working up to 30 hours per week until one month before her daughter was born at the end of May 2007.  She confirmed that her husband had never worked at Pizza Express but had very occasionally visited for a cup of coffee.  She had met her husband in January 2001 in Croatia and they married in Australia on 22 June 2002.  From the time of their meeting she had been aware of the status of his health and the details of his injury in 1995.  She believed her husband was in pain constantly and said he regularly woke at 3.00 a.m. or 4.00 a.m. had some coffee, walked around and came back to bed after approximately one hour.  She mowed the lawns, did the cooking, washed the dishes, washed the clothes etc.  Mr Zanic was unable to help with any household tasks.  She was asked to comment on any changes in his condition since late 2005.  She said she believed he had worsened in that time, as he had become more depressed and more anxious.  She did not believe he was capable of retraining although it was their wish that he might return to work. 

DOCUMENTARY EVIDENCE

22.      The majority of the documentary evidence has already been covered in the section entitled Background. 

Report of Mr Anderson, Psychologist, dated 14 March 2007 (Exhibit A3)

23.      Mr Anderson advised Centrelink that he had treated Mr Zanic shortly after his injury in 1995 with benefit, although Mr Zanic had become so distressed he was admitted to the Swanston Centre psychiatric facility.  Mr Zanic had recently been re‑referred to him for further psychological counselling.  Mr Anderson noted that Mr Zanic had difficulty with his relationships in systems such as WorkCover and Centrelink. 

Medical Assessments Report dated 19 January 2006 (T34)

24.      Dr Tutton performed a medical assessment of Mr Zanic on 19 January 2006.  Mr Zanic’s back condition was regarded as permanent and assigned an impairment point rating of 10, based on a 50 per cent reduction in the range of movement of his back.  Dr Tutton found Mr Zanic suitable for 30 hours per week light work. 

Job Capacity Assessment Report of 17 January 2007 (Exhibit A1)

25.      Ms D. Coull assigned 20 impairment points for Mr Zanic’s back dysfunction and pain and recommended vocational rehabilitation.  She did note Mr Zanic’s psychological condition.  At the time of this assessment a work capacity of 15 to 20 hours per week was considered appropriate and the recommended suitable work was as a car park attendant.  Ms Coull diagnosed what she termed psychological pain and recommended assistance from a psychologist or a psychiatrist to manage this pain.  Ms Coull does not appear to be aware of the fact that Mr Zanic has been attending the Geelong Pain Clinic for over 11 years and at the time she saw him he was attending on a weekly basis. 

Letter from the Respondent received 17 July 2007

26.      As Mr Zanic denied that he had performed any work since 1995, Mr Bakhtiar undertook to check Mr Zanic’s fortnightly applications for payment for NSA in 2006, as Centrelink had documented him as working on a part-time basis for Pizza Express.  As a result of Mr Bakhtiar’s investigation it was found that Mr Zanic had correctly declared his wife’s income on his fortnightly form but these had been incorrectly coded by Centrelink as his earnings.  Mr Bakhtiar undertook to rectify this administrative error. 

RELEVANT LEGISLATION

27. The legislation regarding eligibility for a DSP is contained in s 94 of 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 …

APPLICANT’S SUBMISSIONS

28.      Mr Zanic relied on the evidence presented to the Tribunal and claimed that his back condition and psychiatric condition were either stable or worse than they had been in December 2005 when he first applied for the DSP.  It was submitted he had a continuing inability to work for 30 hours or more per week.

RESPONDENT’S SUBMISSIONS

29. The Respondent submitted that the Tribunal should accept the assessment of Dr Tutton and that the impairment point rating under s 94(1)(b) of the Act was 10 points. Even if an impairment rating of 20 points was found, Mr Zanic had a continuing ability to work. It was also noted that Mr Zanic did not participate in the rehabilitation program recommended by Dr Tutton and the Work Capacity Assessor.

THE TRIBUNAL’S DELIBERATIONS

30.      Throughout his evidence Mr Zanic frequently changed his position ‑ standing, sitting and lying down at 10 to 15 minute intervals.  The Tribunal acknowledges that Dr Tutton assessed Mr Zanic’s impairment points at 10 on the basis of his reported standing and sitting, driving and walking time tolerances.  Mr Zanic’s evidence to the Tribunal was that these times varied greatly from day to day but have overall diminished since late 2005. 

31.      Mr Zanic’s evidence regarding his symptoms was the same as that recorded by Dr Gray-Thompson, pain physician, on 25 January 1999 (T25).  Mr Zanic has not reportably been seen or assessed by a psychiatrist or psychologist since 30 March 1998.  He has recently been referred to the past treating psychologist, Mr Anderson.  Mrs Zanic’s evidence was to the effect that her husband was more anxious and depressed in the past 18 months.  The Tribunal notes that Dr Morris commenced psychiatric medication in August 2006 and at Mr Zanic’s request has recently changed him from Avanza to Zoloft, an anti-depressant. 

32.      Of particular concern to the Tribunal was the entry in Dr Morris’ report that Mr Zanic is taking 100 milligrams of Prednisolone daily.  This concern relates to the incidence of osteoporosis associated with long term steroid treatment with even a daily dose of 30 milligrams, let alone 100 milligrams.  (Tribunal Member’s own knowledge derived from 46 years as medical practitioner and as confirmed by MIMS Annual 2006).  The deleterious effect in an individual with existing vertebral disease could obviously be magnified. 

33.      The matter is remitted to the Respondent for re-assessment of the medical evidence and Mr Zanic’s current medication should be reviewed.  The Tribunal accepts and agrees with the SSAT estimation of 20 impairment points relating to Mr Zanic’s back condition.  There has not been any reported expert medical assessment of the status of Mr Zanic’s chronic anxiety and depression for many years, although Mr Zanic continues to attend the Geelong Hospital Pain Management Clinic weekly.  Such clinics are established on a multi-disciplinary basis usually with a psychiatrist or at least a psychologist in attendance and Mr Zanic’s evidence indicates he has seen a psychologist on a regular basis at this clinic.  In 1999 Dr Gray-Thompson, the then Director of the Geelong Pain Clinic, certified Mr Zanic as being incapacitated for any form of work.

34.      Ms Coull in the Job Capacity Assessment of 17 January 2007 diagnosed what she termed psychological pain and recommended psychiatric or psychological management of Mr Zanic’s pain, apparently without knowledge that he had been attending a multi-disciplinary pain clinic for 11 years.  Mr Zanic has recently been re‑referred to a psychologist in private practice, namely Mr Anderson.  At the time of the hearing Mr Anderson had seen Mr Zanic twice.  Given the passage of time, Mr Anderson should now be able to provide Centrelink with a more definitive assessment.

35. The Tribunal acknowledges that Mr Zanic is required to prove his case but s 33(1AA) of the Administrative Appeals Tribunal Act 1975 requires the primary decision maker, to the best of their endeavours, to assist the Tribunal to make its decision.  It is clear that Mr Zanic has a poor relationship with Centrelink (Exhibit R3) engendering a greater onus upon the Respondent to ascertain and assess the relevant medical reports.

36.      The Centrelink conclusion that Mr Zanic was working throughout 2006 was erroneous and due solely to a Centrelink administrative error.  The earnings of his wife were incorrectly attributed to him, when he, in accordance with the NSA requirements, declared Mrs Zanic’s earnings. 

37.      The Tribunal at the hearing advised Mr Zanic to immediately re-apply for the DSP. 

DECISION

38. In accordance with s 42D of the Administrative Appeals Tribunal Act 1975, the Tribunal remits the matter to the Respondent for further consideration of the medical evidence, the obtaining of further medical evidence where appropriate and the correction of the erroneous Centrelink entries that Mr Zanic had been undertaking paid work.

I certify that the thirty‑eight [38] preceding paragraphs are a true copy of the reasons for the preliminary decision herein of

Miss E.A. Shanahan, Member

(sgd)     Olympia Sarrinikolaou
            Clerk

Date of Hearing:  11 July 2007

Date of Decision:  30 August 2007
Advocate for the Applicant:         Mr H. Streager, Victoria Legal Aid
Advocate for the Respondent:      Mr F. Bakhtiar, Centrelink Legal Services Branch