Zivotic and Department of Family and Community Services [2000] AATA 649 (2 August 2000)

Last Updated: 28 August 2000

DECISION AND REASONS FOR DECISION [2000] AATA 649

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/387

GENERAL ADMINISTRATIVE DIVISION )

Re ACA ZIVOTIC

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr B. H. Pascoe, Senior Member

Date 2 August 2000

Place Sydney

Decision The Tribunal affirms the decision under review.

........(Sgd) B. H. Pascoe..........

Senior Member

CATCHWORDS

SOCIAL SECURITY - disability support pension - whether impairment of 20 points - whether continuing inability to work - cervical spine - lumbar spine - depression

Social Security Act 1991 s. 94

REASONS FOR DECISION

2 August 2000 Mr B. H. Pascoe, Senior Member

1. This is an application to review a decision of the Social Security Appeals Tribunal ("SSAT") of 9 February 2000 which affirmed a decision of an authorised review officer of the respondent dated 23 September 1999 that the applicant was not eligible for disability support pension ("DSP").

2. At the hearing the applicant, Mr A. Zivotic, was unrepresented and assisted by an interpreter. The respondent was represented by Mr G. Lozynsky, an advocate with Centrelink. The Tribunal had before it the documents provided by the respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T33). Prior to the hearing the applicant had provided several medical reports and on the day of the hearing provided one further report. These were accepted into evidence and were:

Exhibit A1 Report of Dr D. Kecmanovic, psychiatrist, dated 7 March 2000

Exhibit A2 Report of Mr N. Dan, neurosurgeon, dated 3 May 2000

Exhibit A3 Report of Dr J. Shah, general practitioner, dated 13 March 2000

Exhibit A4 Report of Dr P. Tomasevic, general practitioner, dated 2 may 2000

Exhibit A5 Four radiological reports relating to abdominal and renal investigations

Exhibit A6 Report of Dr M Houang, radiologist, dated 3 May 2000.

3. Mr Zivotic was born on 12 July 1948 and migrated to Australia on 8 December 1986. He ceased work as a fitter on 4 August 1997 as a result of a back injury. He has claimed workers' compensation but this matter has not been finalised. On 16 January 1998 he was involved in a minor motor vehicle accident and received some compensation. He had been in receipt of weekly compensation which ceased on 8 February 1999. On 26 July 1999, Mr Zivotic lodged a claim for DSP and listed his disabilities as "lower back, neck, legs, r. index finger". A treating doctor's report completed by his general practitioner, Dr M. Benjamin, was attached which showed the diagnosis of his condition as "severe lower back pain related to musculo ligamentous injury to back". The report stated that Mr Zivotic was permanently unfit for his pre-injury work, likely to be able to return to other type full-time work within 12-24 months, could do part-time work and would benefit from vocational training or rehabilitation.

4. A number of other medical reports were attached to the claim for pension. All of these reports appeared to have been prepared in connection with his workers' compensation claim. These included a long report from Dr Benjamin, dated 19 December 1998 and addressed to a solicitor. Dr Benjamin reported limited movement of the lumbar and cervical spine due to pain and muscular spasm. The report concluded:

"In my opinion Mr Zivotic is permanently unfit to re-enter his pre-injury duties as Fitter and Welder. He requires Panadeine Forte tablets for analgesia and Ducene 5mg tablets as a muscle relaxant and for insomnia due to his back symptoms. He may require these medications intermittently and on a daily basis during acute exacerbations of his symptoms. In view of Mr Zivotic taking these tablets and also his ongoing symptoms I would be extremely hesitant for him to perform duties operating welding and other machinery.

I have certified him fit for light duties with a lifting restriction of 5kg, with additional restrictions placed on bending, squatting and trunk twisting.

It is my opinion that Mr Zivotic will continue to suffer from back pain and radicular symptoms on a long term basis. Exacerbations of his symptoms are to be expected from time to time, the nature and severity of his symptoms can vary depending upon the aggravation factor."

A report dated 14 January 1999 from a psychiatrist, Dr P. Morse, to whom Mr Zivotic had been referred by his solicitors stated that it was not considered "that psychologist or emotional factors are playing a significant part in the causation, continuation or severity of his physical symptoms and disability". Dr Morse concluded:

"He is not suffering any major psychiatric or emotional disturbance. He has general feelings of agitation, irritability and mild depression in response to the on-going pain and disability, inactivity and inability to work. I would make a diagnosis of adjustment disorder with depressed and anxious mood.

I do not consider that he would benefit greatly from any psychiatric therapy. What is required is attention to his physical state and rehabilitation and help with activity and work experience."

A report dated 6 April 1999 from Mr W. Patrick, surgeon, addressed to the solicitors for Mr Zivotic, concluded with the opinion:

"... Mr Zivotic has a permanent impairment of the back of 22% in comparison to a most extreme case; and a permanent impairment of the neck of 15% in comparison to a most extreme case; and a permanent loss of efficient use of the left leg (lower limb) at or above the knee, including a loss below the knee of 10%."

Mr Patrick also stated that:

"Mr Zivotic has sustained significant direct trauma to the index finger of the right hand on 1 August 1997 as described. He is left with some symptoms of pain and stiffness, with demonstrable stiffness at the MCP joint. There was apparently no fracture."

5. Dr M. Wright of Health Services Australia assessed Mr Zivotic on 18 August 1999. He assess the permanent medical condition as low back pain, neck pain and sore finger and attributed 10 points for the back, 5 points for the neck and no points for the finger.

6. The psychiatric report from Dr Kecmanovic noted that Mr Zivotic was depressed, uneasy and felt miserable because of his pain and physical discomfort. It stated that he "presents with the symptoms of Adjustment Disorder with Depression." The doctor recommended remaining on medication and a further consultation in four weeks. The report from the neurosurgeon, Mr Dan, noted either normal results of radiological reports or minor changes of the lumbar spine and advised that further diagnostic tests were proposed. Dr Shah stated that Mr Zivotic suffered from "chronic lumbosacral back injury, chronic cervical spine injury and depression" and that each condition was long term with the first two "fluctuating" and the third "stable". He was of the view that it would be more than two years before he could return to full-time work but could return to study within six to twelve months. Dr Tomasevic stated that Mr Zivotic "suffers from chronic neck and back pain and also leg pain" and that, due to that pain, "his mobility is reduced". The doctor continued that "consequently, Mr Zivotic suffers from anxiety, depression". The radiological report showed minor bulging at multiple levels and that the L5 vertebra appears to be sacralised.

7. Mr Zivotic said that, in addition to the lower back and neck pain, he should have considered his permanent impairment of the legs and of the arms, chronic depression and the fact that an ultrasound investigation showed a 1.3 cm diameter cyst arising from the cortex of the right kidney. He maintained that he was permanently incapacitated for work because of his physical and psychiatric condition. He said that he had not included depression in his claim for DSP because he assumed that his physical problems were sufficient to rate the required 20 points. He said that walking, standing or sitting for more than 30 minutes causes pain. Mr Zivotic lives alone and has a woman who has helped him without pay with cleaning, washing and ironing. He owns a car which, he said, he drives when able and, at times, seeks help to carry shopping.

8. It was submitted for the respondent that the applicant's combined impairment rating is below 20 points and that he is capable of performing light duties with a capability of being retrained within two years. It was argued that the impairment ratings for lower back, neck and finger by Dr Wright were appropriate. In relation to depression, it was submitted that no rating could be assigned to this condition as there had been no formal diagnosis or treatment when the applicant lodged his claim nor when the decision which is the subject of this application was made.

9. Section 94(1) of the Social Security Act 1991 ("the Act"), so far as it is relevant, provides that a person is qualified for DSP if:

"(a) the person has a physical, intellectual or psychiatric impairment; and

(b) the person's impairment is 20 points or more under the impairment tables; and

(c) one of the following applies:

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

..."

The impairment Tables are at Schedule 1B to the Act with Table 5.1 dealing with the cervical spine and Table 5.2 with the thoraco-lumbar-sacral spine.

10. The assessment by Dr Wright of 5 points for the neck is based on his assessment under Table 5.1 that Mr Zivotic has a "loss of quarter of normal range of movement. No other medical examiner has found any greater limitation of movement in the neck. Dr Benjamin said that "the movements of the cervical spine were limited due to pain and muscular spasm. The range of movements of the cervical spine were normal". There is no evidence that any higher rating for impairment of the neck is warranted.

11. The assessment of 10 points for the lower back under Table 5.2 relates to:

"Loss of one quarter of normal range of movement as well as back pain or referred pain:

* with many physical activities and

* with standing for about 30 minutes and

* with sitting or driving for about 60 minutes"

This accords with the findings of Dr Wright. Dr Benjamin found "tenderness of the muscles attached to the lumbar spine" and "the movements of the lumbar spine were limited due to pain and muscular spasm". Mr Patrick's finding of an impairment "of 22% in comparison to the most extreme case" does not fit comfortably with the words of Table 5.2 but may be interpreted as a loss of no more than one-quarter of normal range of movement. The evidence of Mr Zivotic at the hearing does not indicate that any higher rating under this Table is appropriate.

12. For any points to be assessed for impairment to arms or legs, an applicant must have a demonstrable loss of function. Under Table 3, dealing with upper limb function, nil points are assessed where the person:

"Can use dominant limb effectively and/or

Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of upper limb which causes mild interference with hand function or manual handling."

There is no medical evidence, nor evidence from Mr Zivotic, which justifies any higher rating under this Table. At best, there appears to be some mild interference with hand function. The primary problem with his arm and hand appears to be the effect of the use of the arm on the pain in the neck. Similarly, there is no evidence to support any point rating under Table 4 covering function of the lower limbs. A nil rating applies where a person "...walks with difficulty on a variety of different terrains and at varying speeds for distances of more than 500m."

13. Psychiatric impairment is assessed under Table 6 which applies to permanent psychiatric disorders only. A short term problem, such as adjustment disorder with depression resulting from some external or physical problem, does not come within this Table. The introduction to Schedule 1B provides that a "condition must be permanent" and that, "for a rating to be assigned, the condition must be a fully documented diagnosed condition which has been investigated, treated and stabilised". Dr Morse did not believe that "psychological or emotional distress is playing any part in his inability to earn income but it is purely due to his physical state and this of course causes the emotional stress". Dr Kecmanovic considered the Mr Zivotic presents with the symptoms of adjustment disorder with depression and arranged to see him again. This can not be seen as a fully diagnosed and stabilised permanent condition. He is taking relatively mild medication. While Mr Zivotic said that the Ducene 5mg tablets had been prescribed for his depression, Dr Benjamin refers to that medication "as a muscle relaxant and for insomnia due to his back symptoms". It should be noted that, even if depression could be rated under Table 6, it appears unlikely that a rating above nil could be attributed to the condition.

14. Mr Zivotic referred to a finding of a 1.3 cm diameter simple cyst arising from the cortex of the upper pole of the right kidney. No disability has been diagnosed from this cyst and the ultrasound report by the radiologist concludes "essentially normal findings".

15. Mr Zivotic complained that the respondent had been selective in the quotation of parts of medical reports and in submissions. However, those parts which Mr Zivotic referred to as supporting his case were all from the history described by the doctors as having been given to them by Mr Zivotic. It is their findings, opinions or diagnoses which are the relevant considerations for the Tribunal.

16. It follows from the foregoing that this Tribunal affirms the decision that Mr Zivotic does not satisfy section 94(1)(b) of the Act in that his impairment is less than 20 points under the impairment Tables. For completeness, I am not satisfied that Mr Zivotic has a continuing inability to work even if a reassessment increased the points to 20. Dr Benjamin, in December 1998, certified him fit for light duties and, in July 1999, considered him fit for part-time work with a likely ability to return to full-time work within two years. Dr Wright considered him fit for suitable light work and Dr Shah considered him able to return to study or training within 12 months. It is accepted that he is unable to return to his pre-injury occupation as a fitter and welder, but the Act does not require such an ability, solely an inability to do any work or to undertake educational or vocational training within two years. Mr Zivotic appears to have concentrated his views on his inability to undertake his pre-injury occupation.

I certify that the sixteen (16) preceding paragraphs are a true copy of the reasons for the decision herein of

Mr B. H. Pascoe, Senior Member

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

Personal Assistant

Date/s of Hearing 7 July 2000

Date of Decision 2 August 2000

The Applicant Self-represented

Solicitor for the Respondent Mr G. Lozynsky, Centrelink