ZBIGNIEW DABROWSKI and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2012] AATA 599

[2012] AATA 599

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2011/4691
Re	ZBIGNIEW DABROWSKI
APPLICANT
And	Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT

DECISION

Tribunal	M D Allen, Senior Member
Date	1 June 2012
Date of written reasons	6 September 2012
Place	Sydney

For the reasons given orally at the conclusion of the hearing, the Tribunal affirms the decision under review.

...........................[SGD].............................................

M D Allen, Senior Member

CATCHWORDS

SOCIAL SECURITY.  Disability support pension.  Physical, intellectual or psychiatric impairment.  Degree of impairment.  13 week qualification period.  Whether fully documented, diagnosed condition treated and stabilised.  Impairment rating less than 20 points under Impairment Table.  Decision affirmed.

LEGISLATION

Social Security Act 1991, Ss 94(1); Schedule 1B

Social Security (Administration) Act 1999, Schedule 2, s 4

REASONS FOR DECISION

M D Allen, Senior Member

6 September 2012

1. At the conclusion of the hearing of this matter, the terms of the decision intended to be made and the reasons therefore were stated orally. After service upon the Applicant and Respondent of a copy of the decision that was in fact made, the Applicant and Respondent, pursuant to section 43(2A) of the Administrative Appeals Tribunal Act 1975, requested that the Tribunal furnish to them a statement in writing of the reasons of the Tribunal for the decision.

2. The oral reasons for decision were set out in the course of the hearing of this matter and have been transcribed by Auscript, the Commonwealth Report Service.

3. The said transcript is annexed hereto and furnished to the Applicant and to the Respondent as it is the reason for the Tribunal’s decision.

I certify that the following paragraphs are a true copy of the reasons for the decision herein of M D Allen, Senior Member

...........................[SGD].......................................

Associate

Dated 6 September 2012

Date(s) of hearing	1 June 2012
Applicant	In person
Solicitors for the Respondent	Ms G Heggen, DHS Legal Division

MR ALLEN:  Mr Dabrowski, now, I’m going to read a decision.  Please sit down.  Now, there is a lot to go through, and I am not going to ask Mr Lewicki to interpret it, because we would be here for too long, but you are entitled to a copy of my reasons, and we will make a note now that the reasons will be reduced to writing and you will be sent a copy of the reasons which you can then sit down and peruse.  Again, if you are dissatisfied with my decision, you can take it to a solicitor.  Very well.

By application made 1 November 2011 the applicant sought review of a decision by the Social Security Appeals Tribunal dated 13 October 2011 affirming a prior determination not to grant him a Disability Support Pension. The qualifications for Disability Support Pension are set out in section 94 of the Social Security Act 1991. Subsection 94(1) of the Social Security Act provides, inter alia, that the applicant must have “a physical, intellectual or psychiatric impairment”. It is not disputed in this matter that the applicant does have such impairments. The subsection also provides that those impairments must rate at “20 points or more under the Impairment Tables” which are to be found at schedule 1B of the Social Security Act.

In particular, the notes at the commencement of the Impairment Tables state, inter alia, that:

A rating can only be assigned for a fully documented, diagnosed condition which has been investigated, treated and stabilised.

A further restriction upon the applicant’s right to a Disability Support Pension is imposed by Schedule 2 of the Social Security (Administration) Act 1999, which provides in section 4 that:

The assessment of the degree of impairment is to be restricted to a period commencing on the day when the claim is made and extending for a period of 13 weeks thereafter.

The result in this matter is, therefore, that one must look at the applicant and his degree of impairment as he was in the period 13 April 2010 to 13 July 2010.  If the applicant considers that his condition has deteriorated since making that original claim, his remedy is to make a new claim supported by the new material.

At the time the applicant made his claim, his then general practitioner, a Dr Napik, listed two conditions which compromised the applicant’s ability to work, namely, head injury and leg injury.  These injuries were occasioned to the applicant as the result of a motor vehicle accident on 13 June 2007.  A more detailed and medically specific description of the applicant’s injuries and consequent disability is given in the report of surgeon Dr Ellis dated 2 April 2008.  In that report Dr Ellis states that the applicant, after being hit by a motor vehicle, suffered multiple injuries to his head and face and a fractured right tibia and fibula.  The history obtained by Dr Ellis states:

Headaches occur frequently and are severe, from which he did not suffer previously.  They are frontal in situation, and occipital to a lesser degree.  He has insomnia.  His vision is not impaired.  There is numbness in the distribution of the infraorbital nerve and the supraorbital nerve on the right side, affecting his forehead and upper lip on the right side.  His dental occlusion is restored.  He is able to eat solid food.  Taste sensibility is still reduced.  Sense of smell is normal.  There is no tinnitus or hearing defect.  There is some dizziness, but he suffered this prior to the accident.  His memory and concentration are impaired, particularly short‑term memory.  He forgets why he went to the refrigerator, forgets appointments and commitments, and keeps a memory chart on the wall to assist him.  There is pain at the fracture site in the proximal third of the right tibia, aggravated by walking for more than half an hour.  There is slight pain in the right knee, but no instability and no swelling.  His neck, back, left leg and upper limbs are not affected.

On examination Dr Ellis reported:

He walked with a normal gait.  The right thigh was four centimeters less in circumference than the left, calf circumference the same on each side.  Weakness noted in the flexors and extensors of the right knee.  No effusion, internal derangement could be demonstrated.  Flexion and extension were fully in range of movement.  Light touch sensibility in the right leg intact –

and opined:

I think it is likely that he will eventually be able to return to manual work in which he has previously worked and has experience.

The history taken by the jobs capacity assessor on 13 April 2010 stated, inter alia:

Mild impairment of memory.  Can learn, although at a slower rate than previously.  Impairment has little impact on everyday activity because of compensation through reliance on written notes, schedules, checklist and colleagues –

and added:

The treating doctor’s report states that the client suffers from right leg and knee pain and reported being unable to stand and walk for more than one hour without having to rest.

In evidence to the tribunal today, the applicant stated that he could walk for one kilometre, although he cannot squat or kneel.

In November 2010 the applicant was referred to psychiatrist Dr Kashava. In his report of 18 November 2010 to the applicant’s general practitioner, Dr Kashava opined that the applicant suffered post‑traumatic stress disorder with comorbid depression. Paragraph 4 of the introduction to schedule 1B of the Social Security Act 1991 reads, inter alia:

For a rating to be assigned, the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised.

As at the 13^th day of July, 2010, that is to say, the close of the period during which the applicant’s disabilities could be considered for Disability Support Pension purposes, the applicant’s post‑traumatic stress disorder and depression had not been diagnosed, much less treated and stabilised.  This disability cannot, therefore, be taken into account in assessing the applicant’s degree of permanent impairment.

Table 8 of schedule 1B refers to “neurological impairment”. A job capacity assessor made a determination that the applicant had a 10 per cent incapacity pursuant to table 8, and I do not disagree with that assessment. The applicant, in evidence, said that he copes by writing notes which he places on the refrigerator, and also that he can function relatively well, for example, he gave evidence that he is able to utilise public transport and does not get lost. He is able to find his way around the city, for example, he was able to attend the Social Security Appeals Tribunal by making reference to a street directory and then finding his whereabouts in the city.

He was able to complete the Disability Support Pension claim by himself, and that claim also included a history and the date of his former wife’s birth and the date of final separation.  He was also able to give instructions to his solicitor in a common law action for damages.  For a rating of 10, the applicant must show a mild impairment of problem‑solving and ability to concentrate, but appropriate use is made of accumulated knowledge and reasonable judgment is shown in routine daily activities most of the time, and there is mild memory impairment.  I won’t detail the full list of the criteria under a rating of 10, but, as stated, I am satisfied that the job capacity assessor was correct in allowing a rating of 10 impairment points for this particular condition.

I was more concerned regarding the applicant’s leg injury. Table 4 of schedule 1B refers to function of the lower limbs. The applicant’s evidence today was that he can walk up to one kilometre. Dr Ellis, in his report, stated that the applicant has full flexion and extension of range of movement in the right leg and further stated it was likely the applicant would be able to return to manual work. Looking at the criteria under table 4, to obtain a rating of 10, the applicant must show:

Demonstrable loss of strength, mobility, stability, balance, coordination and/or sensation such as to cause moderate interference with walking and one or more of the following:  climbing, squatting, sitting or kneeling.

It is uncertain what is referred to as “moderate interference with walking”, but for a nil rating, it must be shown that an applicant:

Walks without difficulty on a variety of different terrains and at varying speeds for distances of more than 500 metres.

It seems to me, therefore, that if the applicant, as per his evidence, can walk up to one kilometre, then he comes squarely within a nil rating, and that is the rating which I allocate.

For completeness, I will mention two other disabilities suffered, or alleged to be suffered, by the applicant.  The first of those is referred to in the report by a job capacity assessor and is referred to as “alcohol dependence”.  I am not satisfied that the applicant is alcohol dependent or abuses alcohol.  It can be said, initially, that the diagnoses of either alcohol dependence or abuse is a psychiatric diagnosis, but in any event there is no evidence that the applicant has been adversely affected by alcohol, as opposed to being a person who regularly drinks alcohol.  There is also reference to the applicant suffering hypertension.  As I understand his evidence today, that although his treating general practitioner had prescribed medication for this condition, he is no longer taking that medication.  It seems to me, therefore, that two situations exist, one that the condition was under control with the medication, but in any event, if it is no longer under control, that is the choice of the applicant and as such should not incur an impairment rating.

I fully understand and sympathise with the applicant’s evidence that he would work if he were able to, but finds he cannot work in his normal trade of a painter because he cannot squat, kneel or climb ladders. However, before one can reach the stage of assessing the applicant’s ability to engage in employment, it must be demonstrated that he has an impairment of 20 points or more under the Impairment Tables in schedule 1B to the Social Security Act. As I understand the evidence which is before me today, the applicant does not incur a rating of 20 points, and therefore the first hurdle has not been crossed and the decision under review must be affirmed.