Nasteski and Department of Family and Community Services [1999] AATA 61 (5 February 1999)

Last Updated: 11 February 1999

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [1999] AATA 61

ADMINISTRATIVE APPEALS TRIBUNAL )

) N o N97/1562

GENERAL ADMINISTRATIVE DIVISION )

Re KIRILO NASTESKI

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Ms S M Bullock, Member

Date 5 February 1999

Place Sydney

Decision The decision under review is affirmed.

(Sgd) S M BULLOCK

..............................................

Member

CATCHWORDS

SOCIAL SECURITY - Disability Support Pension - physical impairment - continuous inability to work - vocational and educational training.

Social Security Act 1991 - ss.94(1), 94(2), 94(3), 94(4) and 94(5)

REASONS FOR DECISION

5 February 1999 Ms S M Bullock, Member

1. This an appeal by Mr Nasteski against a decision of the Social Security Appeals Tribunal (SSAT) made on 13 October 1997, in which the SSAT decided that while Mr Nasteski had a physical impairment, his impairment rating was not 20% or more and therefore he did not satisfy subsection 94(1)(b) of the Social Security Act 1991 (the Act). Mr Nasteski therefore did not qualify for a Disability Support Pension (T2). The SSAT's decision affirmed the decision of an Authorised Review Officer (ARO) of the Department of Family and Community Services (the Department) made on 6 June 1997 (T24). While the ARO agreed that Mr Nasteski had a physical impairment, which prevented him from undertaking his usual occupation, the ARO concluded that Mr Nasteski could undertake suitable light work as recommended by a medical officer of the Australian Government Health Service. The original decision to reject Mr Nasteski's claim for Disability Support Pension was made by a delegate of the Department on 24 April 1997 (T21).

2. Mr Nasteski had previously claimed a Disability Support Pension on 12 April 1994 (T6) which was rejected on 6 May 1994 (T9).

3. A hearing was held before the Administrative Appeals Tribunal (the Tribunal) on 30 October 1998. The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T documents T1 - T25). Mr Nasteski represented himself at the hearing. The Tribunal was assisted by an interpreter in the Macedonian language, Mr B Petrusev. The Department was represented by Ms C Collis, Departmental Advocate.

4. The Tribunal admitted into evidence the following exhibits:

Exhibit No R1 R2 R3 R4

Description Memorandum from Mr Ian Hood, Review Officer, to Mr G Duffy, Departmental Officer, Cabramatta Region Medical Impairment Assessment of Mr Nasteski by Dr V Jakovac, General Practitioner Health Services Australia Whole Person Assessment of Mr Nasteski Medical report by Dr V Jakovac

Date 6 June 1997 10 October 1997 16 April 1998 30 March 1998

5. The Tribunal noted that a number of the exhibits were repeated in the T documents.

ISSUES

6. The issues for the Tribunal to decide are:

* whether or not Mr Nasteski's physical impairment is 20% or more under the Impairment Tables contained in Schedule 1B to the Act;

* whether or not Mr Nasteski has a continuing inability to work;

* does the impairment of itself prevent Mr Nasteski from undertaking educational, vocational training or on the job training during the next two years; and

* whether or not Mr Nasteski's age can allow the Tribunal to disregard his local employment market.

LEGISLATION

7. A determination of this appeal requires consideration of the provisions of section 94 of the Act. Section 94 deals with the qualification for Disability Support Pension and 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

..."

8. Subsection 94(2) of the Act defines "continuing inability to work" and states:

"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."

9. The age of a claimant for social security benefit may be taken into account in some instances. In this regard, subsection 94(4) of the Act states:

"94(4) For the purposes 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."

10. Subsection 94(5) of the Act defines "vocational and educational training" and "work" and states:

"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."

FACTS NOT IN DISPUTE

11. The following information is provided by way of background:

* Mr Nasteski came to Australia from Macedonia on 4 November 1971.

* In Macedonia, Mr Nasteski attended primary school for approximately eight years and attended one year of secondary school, completing this in or about 1951.

* Mr Nasteski undertook a three year apprenticeship in carpentry, working in a carpentry position during the day and attending lectures in the evening from 4pm to 7pm. Mr Nasteski then worked for a period of approximately 11 years as a carpenter. He also undertook training as a salesperson, completing a one year course and worked also as a storeman before coming to Australia.

* In Australia, Mr Nasteski did not undertake any further education apart from an English language course undertaken over three months during 1980/1981. Mr Nasteski claims to have limited English reading, writing and oral language skills. Mr Nasteski estimates that he understands 40 to 50% of English conversation.

* Mr Nasteski has been a widower since 23 December 1989 and has two married sons (T6).

* Within four days of arriving in Australia, Mr Nasteski obtained processing work in a plastics factory.

* On 10 January 1972, Mr Nasteski started work as a carpenter with Stegbar at Lansdowne and continued to work there until February 1982.

* While working full-time as a carpenter at Stegbar, Mr Nasteski sustained a work injury and received workers' compensation from February 1982. He had pain in his right arm which eventually transferred to his left. This pain was manifested by dull aching pain. Eventually, Mr Nasteski received a worker's compensation settlement of approximately $15,000 in August or September 1998.

* In about 1979, Mr Nasteski started a milk run business with his two sons and his wife. He worked in this business until about February 1997.

* In August 1982, while Mr Nasteski was on workers' compensation, he was involved in a motor vehicle accident and after this, the pain in his neck and arms became stronger and sharper.

* Mr Nasteski lives alone, following the death of his wife, but has visits from his sons and daughters-in-law from time to time and a friend who visits and also cooks and assists him with other domestic duties.

EVIDENCE OF MR NASTESKI

12. Mr Nasteski told the Tribunal that after his motor vehicle accident in August 1982, the pain in his neck he had experienced while working at Stegbar had become worse. In the last two or three years, he has also developed pain in his lower back.

13. Mr Nasteski told the Tribunal that he worked in the milk run up until about March 1996, although records show that this date may have been a year later. Mr Nasteski stated that while working on the milk run he would work one or one and a half hours each morning. Mr Nasteski's main duties included him driving the milk truck and occasionally delivering the milk from the truck to the consumer. Mr Nasteski described a situation in which his son and wife for the most part delivered the milk to individual houses and, on occasions, he would assist to lift or slide the milk crates from the depot loading dock onto the tray of the truck. After Mr Nasteski's wife died, he thought that it was possible that he may have carried the milk more frequently. Mr Nasteski told the Tribunal that he was able to cope with the duties of the milk run by doing a bit at a time. However, three years ago he was experiencing great pain but not to the extent that he is now. Mr Nasteski told the Tribunal he subsequently sold the milk run business as he was simply unable to cope physically with the duties of the business and the associated pain. Mr Nasteski denied that the sale of the milk run business was because of declining profits rather than because of his declining health.

14. In relation to the earning capacity of the business, Mr Nasteski told the Tribunal that the business earned $250 gross per week and agreed that this was not a great deal.

15. Before the Tribunal was evidence that Mr Nasteski was the principal worker in the business (T2, para. 9, page 4), and that subsequent to his wife's death five years ago, his son only occasionally helped him when required, for example because of ill health and further that he had worked as a labourer for one month in 1991 for Driclad. In response, Mr Nasteski told the Tribunal that the SSAT "had got it wrong". Mr Nasteski denied that he was the principal worker and sought to explain it as a situation where everyone works together and that he did not work for Driclad in 1991 but rather 1971.

16. In relation to Mr Nasteski's physical condition, Mr Nasteski told the Tribunal that he had pain in both hands and had poor grip strength. Mr Nasteski is right hand dominant. Mr Nasteski told the Tribunal that after using his hands in ordinary daily activities, he would experience pain after approximately 10 minutes. He gave the example occurring during the previous week when he had trouble even touching his neck with his hands and also difficulty in raising his arms above his shoulder. He could not do this for more than 10 minutes, Mr Nasteski told the Tribunal.

17. In relation to his neck, he stated that he had trouble rotating his neck, experiencing great pain and a "cracking" noise. Mr Nasteski stated that he experienced pain every day and tried to obtain relief by changing his position and noted that this usually helps. Mr Nasteski was unable to estimate for the Tribunal how often he experienced the pain stating, "it comes and goes". Mr Nasteski explained that sometimes the pain is "mild" and sometimes it is "very strong".

18. Mr Nasteski described for the Tribunal the condition of "stomach problems" where he has gastric pain and occasionally reflux. Mr Nasteski stated that he is only able to eat certain foods and must avoid eating meals which include baked meat. Mr Nasteski has two daughters-in-law who cook for him as does a friend who visits regularly. Mr Nasteski told the Tribunal that he takes Zantac tablets for his stomach problems.

19. Mr Nasteski states that his back was the most serious of his health problems. He complained of almost constant pain in his lower back, often accompanied by pain and numbness in his left leg, triggered by prolonged sitting, walking or sudden movement.

20. Mr Nasteski has consulted an Orthopaedic Surgeon, Dr J Bannister, and was subsequently referred to another Orthopaedic Surgeon, Dr White. Mr Nasteski told the Tribunal that Dr White was "not very interested in him". Mr Nasteski considered that he may have visited Dr White on perhaps three occasions, last seeing him approximately one year ago. Mr Nasteski stated that he had seen many doctors over the years for reports about his various conditions, but had not received any treatment. Mr Nasteski stated that he used to take prescribed medication for his back pain but has stopped in recent times because the medication upsets his stomach. He now prefers to use two types of creams for both his back and neck and rubs these creams into the problem areas regularly.

21. Mr Nasteski also complained of stress and anxiety, stating that he was always anxious, depressed and feeling sad. He stated he had taken Aropax for depression, but currently is not taking any medication as it also upsets his stomach.

22. Mr Nasteski stated that he tries to keep himself active but this is difficult as his life is far from "normal".

23. Ms Collis suggested to Mr Nasteski that, despite his physical and emotional problems, he was still able to operate a milk run. Mr Nasteski replied that he always gave 100% of himself but he just had to give up work because he was unable to cope.

24. In relation to medication, Mr Nasteski stated that he generally tries to avoid taking tablets because they mostly upset his stomach. Mr Nasteski stated, however, that he does take Panamax, an analgesic, for pain relief. He might take two tablets, two or three times per day but noted that there are some days he does not require any medication. Mr Nasteski also received pain relief from injections administered by his local doctor, Dr V Jakovac, on five or six occasions. After this treatment, Mr Nasteski's pain could be reduced by up to 50% for a short time. Mr Nasteski stated he does not have any physiotherapy now because of the costs, although he used to attend physiotherapy when in receipt of Workers' Compensation. Mr Nasteski attends his General Practitioner, Dr V Jakovac, when he needs medical attention, he told the Tribunal. Mr Nasteski was unable to give a precise estimate of the frequency of consultation but indicated that during the last month he had visited Dr Jakovac on two occasions.

25. Mr Nasteski told the Tribunal he is not able to undertake any physical activity or activity that is slightly physical and, in fact, tried to avoid most activities. If he starts something, he usually has to stop and rest before proceeding to completion of the task, Mr Nasteski stated.

26. Mr Nasteski stated that he still drives his car but his limit is half an hour to an hour. He is still able to undertake his own shopping and is able to carry "light" things. Mr Nasteski also is able to walk short distances and is able to walk to his friends' homes. He regularly visits or is visited by his sons and their families and he is able to drive himself from his home in Canley Vale to his son's home in Campbelltown, a drive that takes him approximately an hour, "sometimes more, sometimes less".

27. The SSAT had recorded that:

"He performs all domestic manual tasks inside and outside the house, for example, fixing the fence, gardening, house cleaning, etc., on his own. For painting the house he obtained help from a friend. He has observed that over the past few years he experiences back pain when he straightens his back after being in a bent position for one hour or more. Mr Nasteski takes two Panamax tablets for the relief of pain when he requires it. This may be every second or third day." (T2, page 5)

When Mr Nasteski was questioned about the SSAT's beliefs in relation to his abilities, Mr Nasteski told the Tribunal that the statement was made three years ago and did not relate to the present time. It was pointed out to Mr Nasteski by Ms Collis that the SSAT's decision was written in October 1997 after he attended the hearing on 13 October 1997. An interpreter was present at this hearing. Ms Collis also noted that the SSAT's statements were written in the present tense, thus referring to the current situation in relation to Mr Nasteski's restrictions and activities. Mr Nasteski then stated that he would always try to undertake tasks. He stated that he does like gardening and his sons do the planting. He mows the lawns if he feels all right but would find difficulty in fixing a fence.

28. Dr T Rogers, Medical Officer with the Australian Government Health Service, in his statement of 17 April 1997 (T20), stated inter alia that:

"The claimant is medically fit for light work such as light process work, driving work or work as a ticket collector or gate attendant."

In response Mr Nasteski advised the Tribunal that he could not perform light duties work for one hour, let alone eight hours. Further, he stated that if he did complete a day's work he would probably not be able to work for the next day or longer.

29. Mr Nasteski stated that he would be willing to undertake rehabilitation/vocational training and asked the Tribunal why no one had offered such strategies to him.

MEDICAL EVIDENCE

30. Dr Veronika Jakovac provided a written report on 30 March 1998 (Exhibit R4) and also oral evidence to the Tribunal by conference telephone. Dr Jakovac told the Tribunal she did not have Mr Nasteski's papers with her, despite the fact that telephone evidence was arranged in advance. Dr Jakovac informed the Tribunal that she was relying on her memory.

31. Dr Jakovac informed the Tribunal that she has been Mr Nasteski's General Practitioner since 4 March 1980. Mr Nasteski may consult Dr Jakovac twice a month and then may not visit her for two to three months. She stated she has treated Mr Nasteski over the years for various conditions, namely:

* recurrent sinus and shoulder problems;

* since February 1982 for right forearm injury;

* since 11 June 1982 treatment for injuries as a result of a motor vehicle accident, neck pain, increased headaches and arranged physiotherapy;

* right arm pain and numbness;

* since 1997 left arm pain and worsening neck problems;

* since mid 1997 low back pain, left leg pain with numbness.

32. On 10 October 1997, in a treating doctor's report for Mr Nasteski's claim for a Disability Support Pension, Dr Jakovac wrote that Mr Nasteski could not stand or sit for long because of cervical and lumbar disc lesions. Because of a right cervical nerve root irritation, Dr Jakovac sent him to a neurologist, Dr Shepherd, but was unable to provide the Tribunal with any details about the result of this consultation including whether or not there was any treatment. Dr Jakovac in her report indicated that Mr Nasteski could not push, pull or twist or lift repetitiously any weights above five kilograms. She also reported that he had recurrent stomach problems since 1991 and because of this condition suffered the inability to concentrate. At that time, Mr Nasteski was taking Zantac tablets for this condition. Dr Jakovac told the Tribunal that she would like Mr Nasteski to have another endoscopy but he is unwilling to undertake this procedure at present. Finally, in her report of 10 October 1997, Dr Jakovac reported that Mr Nasteski has chronic "neuro-depression" which he has suffered since 1982 and which, like his peptic ulcer problem, affected his concentration. In relation to Mr Nasteski's depression, Dr Jakovac told the Tribunal that she used to give Mr Nasteski "samples" of anti-depressants but he is not currently taking any medication for this condition.

33. In her most recent report of 30 March 1998, Dr Jakovac reported the Mr Nasteski was not able to continue his milk run due to pain on walking, climbing steps, nor was he able to carry the milk. Dr Jakovac concluded:

"Mr. Kirilo Nasteski has on going condition affecting the neck and both upper limbs paticularly (sic) the right. There is permanent loss of use of the neck 25%, back 30%, right upper arm 10%, right forearm 15%, right hand 10%, left upper arm 5%, left forearm 10% and left hand 5%.

History, symptoms and findings are quite consistent."

34. Dr Jakovac was asked how she arrived at the impairment ratings for Mr Nasteski. Dr Jakovac told the Tribunal that she used the Impairment Tables provided to her by the Government. Dr Jakovac stated that she was not familiar with the use of these tables and in fact had not previously applied them. Dr Jakovac was asked whether or not she might have become confused in applying the various tables and replied only that this was the first time she had used them.

35. In relation to the justification of the various ratings she apportioned to Mr Nasteski, Dr Jakovac stated that in relation to the 30% rating of loss of use of Mr Nasteski's back, this was appropriate because Mr Nasteski could not sit longer than 20 minutes and/or stand more than half an hour. Mr Nasteski could not bend repetitively, Dr Jakovac also reported. Dr Jakovac provided the Tribunal with an example of Mr Nasteski having to wait in her surgery for his appointment and how he exhibited extreme discomfort while waiting. Dr Jakovac expressed surprise that at the time of her oral evidence to the Tribunal, Mr Nasteski had been sitting in the hearing room for approximately two hours. Dr Jakovac was also surprised to learn that Mr Nasteski had stated that he was able to mow the lawn on occasions. Dr Jakovac's response to this new information was that he might have been able to do this on one occasion but then he would be in great pain and discomfort for days to come. Dr Jakovac repeated that it was difficult for her to be precise in her answers to the Tribunal's and Ms Collis' questions because she did not have the relevant papers with her.

36. In relation to the 10% loss of use of Mr Nasteski's right upper arm and the same rating for his right hand, Dr Jakovac indicated that Mr Nasteski could not push or pull and could not extend his arm and, further, a 15% loss of use of the right forearm reflected Mr Nasteski's weakening of this arm. Dr Jakovac stated that Mr Nasteski had not had the same degree of problems with his left non-dominant hand and this was reflected in her assessment of 5% loss of use of the left upper arm and left hand.

37. Dr Jane Roberts, Medical Adviser from Health Services Australia, wrote on 16 April 1998 that she had examined the papers in relation to Mr Nasteski's claim for Disability Support Pension and subsequent appeal (Exhibit R3).

38. In relation to Dr Jakovac's use of the Impairment Tables to make an assessment of Mr Nasteski's level of impairment, Dr Roberts wrote:

"I have described the presumed use of the tables as inappropriate because if Dr Jakovac has indeed refrred (sic) to the tables for these figures she has triple-counted for the upper limbs by giving separate figures for the upper arm, forearm and hand, which is specifically warned against in the preface to the tables. The quoted figure of 25% for the cervical spine also appeared to be excessive as there is no clinical or radiological evidence that the customer has bony ankylosis of the cervical spine. The impairment rating of 15% as awarded by the medical examiner was based on her objective evidence of the customer's functional capacity and the rating of 5% under Table 6 is entirely appropriate.

...

Dr Jakovac has stated in her letter that the customer's condition prevented him from carrying out his usual duties on his milk run. This may be so, but no new evidence has been provided to contradict the examining MA's assertion that the customer is fit for light duties with specific restrictions on lifting and bending. In fact, the history as given by Dr Jakovac to me suggests that irrespective of the Xray findings the customer's reported symptoms of back pain bear little relation to the bony pathology described as the treatment given would be best described as having a placebo effect. It is noteworthy that the specialist Dr White apparently did not consider that there was any major problem for which definitive treatment would be warranted." (Exhibit R3)

39. Dr Roberts concluded that as there was no further information or evidence, the original medical assessment by the Medical Officer of the Australian Government Health Service was appropriate and should not be altered in any way.

40. Dr T Rogers, Medical Officer with the Australian Government Health Service, reported on 17 April 1997 that Mr Nasteski complained of intermittent back pain, neck and arm pain which he experienced after 10 minutes of manual activity (T20). Dr Rogers elicited no evidence of nerve root impingement on his examination. On further examination, Dr Rogers reported that Mr Nasteski had normal range of movement and normal mobility in his arms and back. Dr Rogers noted that Mr Nasteski was mildly depressed but that this condition would not preclude him from working.

41. Dr Rogers concluded that Mr Nasteski had a whole body impairment of 15% made up of 5% for intermittent neck/back pain (Table 6); 5% for depression (Table 7); and 5% for Mr Nasteski's peptic ulcer condition (Table 13). Dr Rogers further opined that Mr Nasteski would be able to undertake light duties work as a manager, supervisor or technician, light semi-skilled work as a typist, postal clerk or messenger or light/lesser skilled work such as that of a caretaker, photographic assistant, ticket collector or gate attendant. Dr Rogers noted that the biggest hurdle for Mr Nasteski in obtaining employment was his age.

42. On 12 March 1997, Hanh Nguyen, Occupational Psychologist, reported and concluded that:

"At the present stage, Mr Nasteski presents symptomatology of a moderate depression. Given his physical condition which is likely to be permanent and his age, his chance of getting into competitive employment would be extremely poor.

Therefore, it is recommended that his application for DSP be favourably considered." (T18, page 71)

Hanh Nguyen at that time was an Occupational Psychologist with the then Cabramatta Commonwealth Employment Service.

43. Mr Nasteski has had a number of radiological investigations over the years. His most recent x-rays undertaken and received by the Department of Family and Community Services on 14 May 1997 concluded that Mr Nasteski has cervical and lumbar spondylosis and that there is also broad-based protrusion of the L4/5 disc (T22).

SUBMISSIONS

44. Mr Nasteski stated that he was forced by the Department of Family and Community Services to ask for a Disability Support Pension. He believed that he had been advised by a Departmental Officer to apply. Mr Nasteski stated that he felt deeply that he deserved a pension.

45. Mr Nasteski told the Tribunal that he had initially been represented by a solicitor from the Legal Aid Commission of New South Wales, but legal aid funding was subsequently withdrawn when he refused to make a contribution to his legal representation, on account of his means. He also stated he refused to obtain reports from specialist doctors because he did not want to expend monies, in effect, to pay for his pension, and that Dr Jakovac, his General Practitioner, was best able to provide information of his various conditions and the restrictions they placed upon him. Mr Nasteski stated that no-one believed him and he felt that he was being treated like a criminal. He reiterated that his conditions were genuine and that he does not consider he is able to work.

46. Ms Collis submitted that Mr Nasteski does not satisfy subsection 94(1)(b) of the Act in that he does not have a physical impairment of 20 points or more and therefore he is not eligible for a Disability Support Pension.

47. Despite medical information, x-ray and CT reports noting that Mr Nasteski has marked cervical spondylosis and lumbar disc lesions, Ms Collis submitted that in contrast, Mr Nasteski was still able to carry out a milk run until February 1997 after he had ceased work as a carpenter.

48. Ms Collis conceded that Mr Nasteski's physical condition, his age and being from a "non English speaking background", make it difficult for Mr Nasteski to obtain work in his usual occupation. Ms Collis submitted, however, that it was still possible for Mr Nasteski to find light duties work. In any event, Ms Collis submitted that the provisions of the Act did not allow such factors to be taken into account.

49. It was Ms Collis' submission that the SSAT had made a fair assessment in relation to Mr Nasteski's impairment and had reached the correct conclusion and that, notwithstanding the fact that Mr Nasteski suffered pain and had physical restrictions, these were not chronic. Similarly, although there is evidence that Mr Nasteski has a psychological condition manifest in depression and anxiety, it was not so serious as to prevent him from maintaining his friendships and family relationships, and therefore not so serious as to preclude him from working.

50. Ms Collis submitted that Dr Jakovac's impairment ratings could not be considered because they were simply incorrect, as Dr Jakovac had not correctly applied the instructions in relation to the tables. Ms Collis pointed to Dr Jakovac's evidence that she was not familiar with using the tables and in fact had used them for the first time in reaching an impairment assessment for Mr Nasteski.

51. While subsection 94(4) of the Act might have been able to be applied to Mr Nasteski because of his age, Ms Collis submitted that the facts of this case do not satisfy this provision. Ms Collis submitted that Mr Nasteski had demonstrated that he has been able to operate a small business in the past, and therefore there was no reason why Mr Nasteski could not use these business skills in another form of employment more suited to his capabilities, for example a milk bar proprietor/employee or a caretaker.

52. In conclusion, Ms Collis submitted that not only did Mr Nasteski fail to reach the minimum 20% or more impairment, as required by subsection 94(1)(b) of the Act, but he also failed to demonstrate a continuing inability to work pursuant to subsection 94(2) of the Act. Therefore, Mr Nasteski was not qualified for a Disability Support Pension in that he is capable of performing suitable work for 30 hours per week or more.

FINDINGS

53. In reaching a decision in this matter, the Tribunal has taken into account all the available evidence, legislation and relevant case law.

54. Mr Nasteski provided evidence in a co-operative manner.

55. The evidence of Dr Jakovac was provided co-operatively. However, Dr Jakovac's evidence was at times disappointing, given that she did not have the relevant case notes or history with her to which she might have referred and provided fuller evidence to the Tribunal about Mr Nasteski and his various conditions and restrictions.

56. There is no doubt that Mr Nasteski has a number of physical and psychological disabilities. The issue is whether or not he has a physical impairment of 20% or more. There is evidence that Mr Nasteski has lumbar spondylosis and cervical disc protrusions and that he suffers from a moderate depression and/or anxiety condition.

57. The difficulty for the Tribunal is that there is conflicting medical evidence, on the one hand between the opinions of Dr Rogers, the original Government Medical Officer assessing Mr Nasteski, Dr Roberts, a medical adviser with Health Services Australia, and Dr Jakovac, Mr Nasteski's treating General Practitioner.

58. Dr Rogers, with whom Dr Roberts concurred, noted Mr Nasteski was depressed, but did not consider it to be to such a degree as to preclude him from work. He concluded that Mr Nasteski's complaint of neck and back pain amounted to an impairment rating of 5% based on Table 6 of the Impairment Tables. He found no rating applicable to his arm pain, a 5% rating for his peptic ulcer based on Table 13, and a 5% rating for his moderate depression based on Table 7.

59. The SSAT, having undertaken its own independent whole body assessment of Mr Nasteski, concluded that 15% was again the appropriate rating and did not consider it appropriate to provide any impairment rating for Mr Nasteski's upper limbs.

60. The Tribunal was satisfied that Dr Jakovac did not apply the tables appropriately, and therefore prefers those numerical assessments as opined by Drs Rogers and Roberts.

61. The Tribunal found Dr Jakovac's evidence, both written and oral, in relation to Mr Nasteski's level of restriction, to be inconsistent with that of Mr Nasteski's own reported degree of restriction. Further, evidence by Mr Nasteski that he could mow the lawn and the fact that he had sat in the hearing for over three hours, was also inconsistent with evidence given by Dr Jakovac.

62. The Tribunal also questions the accuracy of Dr Jakovac's assessments in relation to Mr Nasteski based on Dr Jakovac's erroneous understanding of the work involved in a milk run to be easy.

63. The Tribunal notes that the failure of Dr Jakovac to have available at the time of the hearing her own notes impacted on her evidence before the Tribunal.

64. The Tribunal notes the conclusion of an ARO on 6 June 1997, who wrote "this is a borderline case." (Exhibit R1), and accepts that Mr Nasteski has physical limitations. However, based on the finding that his pain is intermittent, for which he takes analgesics, and is of such a degree that he is able to undertake such activities as driving, shopping, light gardening and mowing the lawn occasionally, the Tribunal is satisfied that the level of disability is not more than 20% of whole person impairment.

65. The Tribunal considers that the following ratings are appropriate in relation to Mr Nasteski's conditions:

Impairment Table Rating

Intermittent pain of the neck, Other Musculo-skeletal 5

back and shoulder Impairment (Table 6)

Depression/anxiety Psychiatric Impairment (Table 7) 5

Peptic ulcer Table 17 5

Combined values of chart rating 15 ______________________________________________________________

66. Accordingly, Mr Nasteski does not satisfy subsection 94(1)(b) of the Act and therefore is not qualified to receive a Disability Support Pension.

67. The Tribunal notes that even if Mr Nasteski had satisfied subsection 94(1)(b), it considers that Mr Nasteski would possibly be able to undertake vocational training or rehabilitation. In coming to this view, the Tribunal notes the positive reaction by Mr Nasteski in relation to discussion of his participation in rehabilitation or vocational training and particularly notes his interest in any assistance he might obtain in terms of pain management techniques. It may well be beneficial to Mr Nasteski if he were to approach his General Practitioner about these issues.

I certify that this and the 18 preceding pages are a true copy of the decision and reasons for decision herein of

Ms S M Bullock, Member

Signed: .....................................................................................

Associate

Date/s of Hearing 30 October 1998

Date of Decision 5 February 1999

Representative for the Applicant Self-represented

Representative for the Respondent Ms C Collis, Departmental Advocate,

Department of Family and Community Services