Tolj and Department of Family and Community Services [1999] AATA 75 (10 February 1999)

Last Updated: 1 March 1999

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [1999] AATA 75

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N97/1247

GENERAL ADMINISTRATIVE DIVISION )

Re NIKOLA TOLJ

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal R P Handley, Senior Member

Date 10 February 1999

Place Sydney

Decision The Tribunal affirms the decision under review.

(Sgd) R P Handley

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

SENIOR MEMBER

CATCHWORDS

SOCIAL SECURITY - disability support pension - diabetes - arthritis - hypertension - enlarged heart - abnormal liver function - whether Applicant has a 20% impairment

Social Security Act 1991 - ss 94(1), 94(2), 94(5), Schedule 1B

REASONS FOR DECISION

10 February 1999 R P Handley, Senior Member

1. This is an application by Nikola Tolj ("the Applicant") for a review of a decision of the Social Security Appeals Tribunal ("the SSAT") made on 21 August 1997, which affirmed a decision of the Secretary of the Department of Social Security, now the Department of Family and Community Services ("the Respondent"), and an authorised review officer, to reject the Applicant's claim for a disability support pension ("DSP").

2. At the hearing, the Applicant was self-represented and the Respondent was represented by Cheryl Collis of Centrelink. The Tribunal had before it the documents provided pursuant to s 37 of the Administrative Appeals Tribunal Act 1975. The following documents were admitted in evidence:

Exhibit R1 A bundle of medical reports

Exhibit R2 A bundle of further medical reports and the Respondent's computer printouts of file notes and a summary of the Applicant's medical conditions.

Background

3. The Applicant, who was born on 4 March 1944 and is aged 54, migrated to Australia from Croatia, arriving on 11 August 1967. In Croatia, he served in the Army for 18 months and worked in a variety of casual jobs. In Australia, he worked as a bricklayer until 9 February 1995 when he injured his left ankle in an accident at work. He has not worked since.

4. On 7 March 1997, the Applicant lodged a claim for DSP (T3). He was examined by an Australian Government Health Service (AGHS) doctor who assessed the Applicant as having a 10% impairment in respect of arthritis in his left ankle and varicose veins (T10). The doctor also noted the Applicant's diabetes, hypertension and enlarged heart, but made 0% impairment assessments in respect of these conditions. While the doctor said the Applicant was not fit for his previous work as a bricklayer or work requiring "heavy lifting, climbing, squatting, prolonged walking or standing", he said the Applicant was capable of sedentary work (T10, p 58).

5. On 10 April 1997, the Respondent decided to reject the Applicant's claim for DSP (T12). This decision was affirmed by an authorised review officer on 3 June 1997 (T17) and by the SSAT on 21 August 1997 (T2). On 16 September 1997, the Applicant lodged an application for a review by the Tribunal (T1).

6. On 29 June 1998, the Applicant lodged a new claim for DSP. The Applicant was examined by the same AGHS doctor who assigned the Applicant's left ankle a 0% impairment rating but assigned a 10% impairment rating for his diabetes (R1).

Applicable Legislation and Issues

7. The qualifications for DSP are set out in s 94(1) of the Social Security Act 1991 ("the Act"). Section 94(1) states in part:

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% or more under the Impairment Tables; and

(c) one of the following applies:

(i) the person has a continuing inability to work;

...

8. There is no dispute that the Applicant has a physical impairment. The issues for the Tribunal are whether the Applicant's physical impairments should be assessed at 20% or more under the Impairment Tables set out in Schedule 1B of the Act, and, if so, whether the Applicant has a "continuing inability to work". "Continuing inability to work" is defined in s 94(2).

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. Further relevant definitions are included in s 94(5):

94 (5) In this section:

"educational 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.

The Applicant's Oral Evidence

10. The Applicant said he walks three to four kilometres on the flat at a normal pace on most mornings which takes 45 to 50 minutes. After this, his left ankle feels bad and begins to swell, and he needs to sit down and rest. He usually only uses a walking stick if he has pain which he experiences with changes in the weather, particularly if it is cold. The Applicant said he only ever walks on the flat. If he goes shopping or to the club, he goes by bus.

11. The Applicant said he experiences pain in the ankle on using steps, including getting on and off the bus. There are no steps in his house. If he sits for 30 minutes, for example watching television, his ankle is stiff and painful when he gets up and he has to move around the house to get the circulation going. If he experiences pain in his ankle, he takes the pain killers prescribed by his doctor. Generally, this is about two or three times a week - one tablet per day - but when the weather is bad, he often takes a tablet every day.

12. The Applicant lives alone and therefore only needs to do minimal housework. If he has to carry something, for example a shopping bag, he carries it in his right hand: to carry it in his left hand would put further pressure on his ankle and cause pain. The Applicant said he can kneel slowly, leading with his right knee. He cannot run nor climb a ladder. He is very careful of his left ankle. He noted that the circulation in his left leg is bad and he has swollen veins.

13. The Applicant also suffers from non-insulin dependent diabetes mellitus. He said he has a machine for testing his sugar levels which he does twice a day. He takes the medication prescribed by his doctor: six years ago he took half a tablet; now he takes one and a half tablets a day. The Applicant said if he eats the wrong food, his sugar level shoots up. If his sugar level is high, he gets dizzy. His doctor has given him a diet to follow - for example, avoiding red meat and eating more vegetables.

14. The Applicant's doctor has also told him not to drink alcohol but the Applicant cannot give it up. He drinks about one litre of wine a day - a four litre cask lasts four to five days. If he has enough money, which is not always, he has two or three schooners of beer at the club. He is aware that the alcohol is not good with his medication. He has never fainted but sometimes his feet get cold and he puts them in hot water. If he injures himself - for example, if he cuts a finger - the injury takes a long time to heal.

15. The Applicant said he has an enlarged heart and it sometimes feels as if it is beating too fast. He also suffers from high blood pressure but this is currently under control. He takes Isoptin, prescribed by Dr Donnelly. Various tests have shown that he has liver damage. He is seeing Dr Donnelly again for a review mid-February.

16. The Applicant said his overall condition varies from day to day. He might be okay for two to three days, and then have some bad days.

17. The Applicant is receiving job search allowance, but he is not currently required to look for work, pending the outcome of his appeal to the Tribunal. His workers compensation claim was settled for about $47,000 two years ago. He would try light bench work if somebody could find him such work - his hands are okay. While the Applicant's spoken English is moderate (he was assisted by a Croatian interpreter during the hearing), his written English is poor.

The Respondent's Submissions

18. In her written submission, Ms Collis states the Respondent does not accept the SSAT's attribution of a 5% impairment rating in respect of abnormal liver function since this condition had not been diagnosed, treated or stabilised at the date of claim.

19. Ms Collis pointed out that the reports of the Applicant's treating doctor, Dr Cywinski, lacked detail and were unhelpful. However, it was clear that Dr Cywinski had allowed non-medical factors such as age, education and non-English speaking background to influence his opinion, which was not permitted by s 94(1) of the Act.

20. While the Respondent accepted the Applicant could not return to his previous work as a bricklayer, in the Respondent's view, the Applicant was capable of suitable light work. Although Dr Cywinski has consistently maintained that the Applicant is unfit for all work, he has failed to explain how the Applicant's disabilities prevent him from performing suitable light work.

21. Ms Collis noted the Applicant's second claim for DSP, rejected on 13 August 1998, was not the subject of this appeal.

Consideration of Law and Findings

22. The issues for the Tribunal to decide are, first, whether the Applicant's physical impairments should be assessed at 20% or more under the Impairment Tables set out in Schedule 1B and, if so, second, whether the Applicant has a continuing inability to work. The Tribunal notes that the Tables for the assessment of work-related impairment for DSP, set out in Schedule 1B of the Act, were revised in 1997 and that the new Tables have been in use since 1 April 1998. The Tables used to assess the Applicant's impairment for the purpose of the decision under review were the old, pre 1 April 1998, Tables.

23. In his report dated 10 April 1997 (T10), the AGHS doctor, Dr A Casolin, assessed the Applicant's left ankle and varicose veins at 10% under Table 4. In the Tribunal's view such an assessment is reasonable. The Tribunal accepts the Applicant's evidence that although he can walk up to three or four kilometres on the flat, he experiences pain on weight bearing, avoids uneven surfaces, experiences difficulty with steps, is unable to run, uses caution when kneeling, and experiences pain and stiffness after sitting for 30 minutes. The Tribunal finds the Applicant has experienced a loss of strength and mobility, and regularly experiences pain in his ankle, especially in colder weather, for which he takes pain killers prescribed by his doctor. The Tribunal also notes that a 10% assessment is reasonable according to the new Impairment Tables in use since 1 April 1998.

24. In his report dated 10 April 1997 (T10), Dr Casolin assessed the Applicant's non-insulin dependent diabetes mellitus as a 0% impairment under Table 24. This appears to be reasonable given the 0% impairment in Table 24 for "Diabetes mellitus satisfactorily controlled by diet and/or tablets", and Dr Casolin's opinion that the Applicant's diabetes was well-controlled. However, the Tribunal notes that in his later report dated 11 August 1998 (R1), Dr Casolin stated that the Applicant's "main problem is diabetes" which, while reasonably controlled with oral medications, "does have some early complications". On this occasion, Dr Casolin made the following comment on assessing the impairment:

It could easily be argued that this condition rates 0% on table 19, however in view of the fact that he does have some early complications, it would be reasonable to assign 10% instead.

25. At the time of this assessment on 11 August 1998, the new Impairment Tables were in use. Endocrine disorders are assessed under Table 19 which appears to be a little more liberal than the assessment of diabetes under the equivalent Table 24 in the old Tables.

26. The Tribunal finds the Applicant also suffers from atrial fibrillation and hypertension which appear to be currently well-controlled. As Ms Collis noted, the Applicant's abnormal liver function had not at the time of the decision, and has not yet, been diagnosed, treated and stabilised. No impairment rating should, therefore, be attributed to this condition. In a report dated 11 November 1997 (R1), Dr Connelly suggests abnormalities in the Applicant's liver function tests may be due to his high alcohol consumption, which he has advised the Applicant to reduce.

27. In summary, Dr Casolin's assessment of the Applicant on 10 April 1997 at 10% in respect of his left ankle, 0% in respect of his diabetes and 0% in respect of hypertension and cardiomegaly is, in the Tribunal's view, reasonable. Thus, the Applicant did not meet the 20% threshold for DSP under s 94(1)(b) of the Act and was not, at that time, qualified for DSP. The SSAT decision dated 21 August 1997 must, therefore, be affirmed.

28. Whilst not relevant to the current review, the Tribunal notes that had it been reviewing Dr Casolin's assessment of 11 August 1998, it would have assessed the Applicant's left ankle at 10% under Table 4 and his diabetes at 10% under Table 19, thereby satisfying the 20% threshold required by s 94(1)(b).

I certify that this and the 8 preceding pages are a true copy of the decision and reasons for decision herein of Senior Member R P Handley.

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

Associate

Date/s of Hearing 28 January 1999

Date of Decision 10 February 1999

Unrepresented Applicant Nikola Tolj

Advocate for the Respondent Cheryl Collis