Predescu and Department of Family and Community Services [2000] AATA 829 (18 September 2000)

Last Updated: 12 October 2000

DECISION AND REASONS FOR DECISION [2000] AATA 829

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1998/1069

GENERAL ADMINISTRATIVE DIVISION )

Re PETRE PREDESCU

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Dr J D Campbell

Date 18 September 2000

Place Sydney

Decision The Tribunal affirms the decision under review.

[Sgd] J D Campbell

Member

CATCHWORDS

Social Security - disability support pension - impairments assessment - claim rejection - review - continuing inability to work

Social Security Act 1991, sections 94,100, Schedule 1B

REASONS FOR DECISION

Dr J D Campbell

1. Mr P Predescu ("the Applicant") in this matter seeks a review of the decision of the Social Security Appeals Tribunal ("the SSAT") dated 26 June 1998, which affirmed the decision dated 10 November 1997 of the delegate of the Secretary, Department of Family and Community Services ("the Respondent") that the Applicant did not qualify for disability support pension. This decision was reviewed and, while altered, was affirmed in a decision by an authorised review officer dated 12 March 1998.

2. A hearing was held before the Tribunal in Sydney on 8 May 2000 at which the Tribunal was assisted by an interpreter fluent in the Romanian language. The self represented Applicant presented oral evidence to the Tribunal, and the Respondent was represented by Mr Lozynsky, an advocate from the Administrative Law Section of Centrelink.

3. The following material was placed in evidence before the Tribunal:

Documents prepared pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975 T1-T26 Pp1-80

Medical Report of Dr Mahony dated 15 July 1999 Exhibit A1

Bundle of Workers' Compensation certificates Exhibit A2

Bundle of documents relating to the Applicant's referral to Dr Mahony and Royal Prince Alfred Hospital Exhibit A3

Medical Report, undated, re Applicant Blacktown/Mt Druitt Health Service Exhibit A4

Radiology Report of Dr Dreverman dated 9 December 1997 Exhibit A5

Referral for physiotherapy dated 28 June 1999 Exhibit A6

Medical Certificate re Applicant dated 20 April 2000 Exhibit A7

Letter re cancellation of Newstart Allowance dated 28 April 2000 Exhibit A8

Respondent's statement of facts and contentions dated 16 February 2000 Exhibit R1

issues

4. The relevant issues in this matter are:

(1) whether the Applicant has a physical, intellectual or psychiatric impairment and that impairment is 20 per cent or more under the impairment tables in schedule 1B to the Social Security Act 1991; and

(2) if so, whether or not the Applicant has a continuing inability to work because of the impairment because:

(a) the impairment of itself prevents the Applicant from doing any work for at least 30 hours per week at award wages within the next two years; and either

(b) the impairment of itself is sufficient to prevent the Applicant from undertaking educational or vocational training or on the job training during the next 2 years; or

(c) such training is unlikely (because of the impairment) to enable the Applicant to do any work for at least 30 hours per week at award wages within the next two years.

legislation

5. The relevant legislation in this matter is the Social Security Act 1991 ("the Act") and in particular subsections 94(1), (2), (3), (4) and (5), 100(3) and the tables for the assessment of impairment for disability support pension ("Schedule 1B Impairment Tables").

background

6. The Applicant lodged a claim for disability support pension on 22 October 1997. Two treating doctors reports were submitted on behalf of the Applicant by Dr Ciardi and Dr Day on 21 October 1997 (T8, T9). A whole person medical assessment was completed on 7 November 1997 (T11). Rejection of the claim was notified to the Applicant on 10 November 1997 (T14). Following receipt of further information from Dr Day on 27 January 1998 (T16), and a further review by the Commonwealth Medical Adviser on 5 February 1999 (T18), an internal review by Centrelink affirmed the earlier decision on 17 February 1998 (T19). This decision was affirmed, but for a different legal reason, on 12 March 1998 (T24). Further medical material was received on 11 May 1998 from Dr Dave (T25) and a medical certificate from Dr Ciardi dated 6 August 1998 (T26). The SSAT affirmed the decision not to grant a disability support pension to the Applicant on 26 June 1998 (T2), for a legal reason consistent with the delegate's decision of 10 November 1997.

evidence: the applicant

7. The Applicant informed the Tribunal that he had applied for a pension in 1991 and had seen ten doctors as part of that process. In 1995 Centrelink tried to pressure him to find a light duty job and as a result he, in conjunction with his family, ran a small stall at Flemington Markets, from which he earnt $60 on Saturdays and $70 on Sundays. In February 1996 Centrelink stopped all payments to him. On 27 February the Applicant was involved in a car accident and was admitted to hospital with a broken upper left arm. He also has problems with his heart (admitted to Fairfield Hospital for three days) and his back (for which he has had physiotherapy). He stated that he sees his cardiologist every two months for medication (Dr Day) and has been attending Dr Mahony.

8. The Applicant told the Tribunal that he was born on 28 June 1950, enjoyed 11 years of schooling, that he worked as a carpenter from age 19, married at 20, and undertook furniture making for the next 12 years prior to working with his father-in-law in his small business in plastics to 1980. He moved to Austria and Australia in October 1981. The Applicant stated that he had two children, one of whom, aged 26, lives at home.

9. The Applicant stated that in 1981 he worked in a furniture factory at Matraville for four months and then moved to Melbourne to learn English and for one year worked delivering cleaning products. In October 1984 the Applicant stated he had a car accident and was admitted to the Alfred Hospital with head injuries and a heart attack. He stated that he was unconscious for three weeks, may have had shock therapy and was a handicapped person for six years. The Applicant indicated that his last employment prior to this accident was in February 1984, delivering cleaning materials, and that after ceasing that work he had returned to Sydney. He had returned to Melbourne on holiday prior to the accident in October 1984.

10. The Applicant indicated that he had undertaken no work from February 1984 until 1995 when he commenced the activities at Flemington Markets and which lasted to 1997. During this period (February 1984 - February 1997) the Applicant described the following car accidents in which he was involved:

* October 1984 - accident in Melbourne; no compensation;

* 1986 - passenger; broke two ribs; compensation of $8000;

* 1988 - broke four ribs; hurt back; no compensation; and

* 1997 - passenger; fractured left arm; compensation of $69000.

11. The Applicant indicated that while his wife did have a car she now does not and his daughter has a car which he drives, when he has the need. He can drive for a half to one hour, but normally uses the bus and train. He notices that he gets tired and short of breath when he is walking. He hoses the grass and path, but does not mow the lawn. He sometimes goes shopping and can boil an egg. He does no home cleaning, although seven years ago he painted the housing commission home in which they live. He sleeps poorly, getting up three to four times a night. He watches television, and often meets people at Blacktown/Fairfield and sometimes in coffee lounges, to talk.

12. The Applicant informed the Tribunal that he was right handed and that he suffered from the following conditions:

(a) Heart Condition: He believes he was taking anginine in 1992. He got confused with which tablets he was taking when he collapsed in 1997 and Dr Ciardi sent him by ambulance to Fairfield Hospital.

(b) Hiatus hernia with oesphageal reflux: Retro sternal chest pain; issue of an operation. No medication.

(c) Left shoulder: No strength; can elevate to horizontal; difficulty with abduction; pin and plate to be removed soon. No trouble picking up a glass; good manual dexterity.

(d) Back condition: Central posterior lumbar pain. No mention of pain in the leg. Pain in neck posteriorly. Uses Voltaren tablets and ointment as well as Panadeine.

13. The Applicant indicated to the Tribunal that he would like to get a job, but does not think he could work more than a few hours per day and feels that no-one would give him a job. He finds that he is able to communicate more freely in English, but he finds he has no patience, becomes nervous (head injury), and while he does "not stop talking all day" he is fighting with everyone; he would appreciate a rehabilitation assessment.

14. In response to questions from the Respondent the Applicant confirmed that his accident in 1984 was a result of him driving into a tree while under the influence of alcohol. He was unconscious for three days with a closed head injury and his heart was restarted. Further the Applicant confirmed that he had received compensation sums in excess of what he had earlier disclosed and that there had been two preclusion periods as a result of these compensation payments.

15. The Applicant confirmed that his worst condition was his left shoulder and arm; that he is right handed and that his left hand swells in hot weather. He stated that he has difficulty in lifting with two hands; that he likes to drink, but currently is not smoking or using drugs. He finds that he is "too nervous", he is facing more operations, he gets upset and argues and quarrels with people.

medical evidence

16. In a radiology report dated 17 March 1997, Dr Steinberg, a consultant radiologist noted that there was some minor age related intravertebral disc space thinning and anterior osteophyte formation in the lower dorsal spine; and that there were no abnormalities detected in the cervical spine (T5).

17. In a radiological report of the left shoulder dated 1 May 1997, Dr Steinberg noted a plated fracture of the proximal one third of the humerus, and no significant focal abnormality in the glenohumeral joint or any evidence of soft tissue calcification (T6).

18. In a treating doctor's report dated 21 October 1997, Dr Ciardi nominated the Applicant's particular condition as fractured left humerus with internal fixation resulting in the Applicant being unable to use his left arm to do normal things. He considered the condition long term and stable and that he would not be able to return to any work for at least two years. He further considered the Applicant's work ability to be affected in the following ways:

* absence from work on four or more days a month;

* unable to work full days because of endurance problems;

* substantially diminished dexterity;

* constrained mobility in some situations; and

* unable to lift, carry or move objects. (T8)

19. In a treating doctor's report dated 21 October 1997, Dr Day, a consultant physician, nominated the Applicant's conditions as:

(a) Shoulder pain: Left shoulder pain with reduction of movement since 1991. Date of onset 1997. Long term and stable.

(b) Chest pain: Chest pain with no particular pattern, central in location. Long term and stable.

(c) Lumbar spondylosis L4-5-S1 disorder.

Dr Day considered the Applicant unfit for any form of work for more than two years and believed the Applicant's work ability to be affected in the following manner:

* absence from work for four or more days a month;

* could only persist at tasks for between 20 and 90 minutes;

* instructions occasionally need to be repeated;

* communication requires frequent repetition;

* substantially diminished dexterity;

* would not be able to alternate between tasks; and

* unable to lift, carry or move objects. (T9)

20. In a whole person assessment dated 7 November 1997, Dr Murray, a medical adviser with Health Services Australia, summarised his findings with the following comment:

"This client presented for DSP new claim assessment. He last worked in casual market work 1995-1/97 until the business was poor. He worked as a carpenter for six months in 1982. He arrived in Australia in 1981. Overseas he worked as a machinist.

The medical conditions according to the client and TDR are:

1. Left (non-dominant) shoulder pain since a fracture in 3/97 requiring surgery. He is still attending physiotherapy.

2. Chest pain which on history is consistent with reflux oesophagitis/peptic ulcer. He takes an acid-suppressant and has intermittent symptoms.

3. Back pain which he notices mostly after driving or lifting furniture. He easily moved and transferred and had minor restriction to movement only on examination. He reports ability to sit for one hour, stand for 30 minutes and walk for 30 minutes. He drives a car, waters the garden and does occasional handyman repairs at home.

The combined impairment rating is 15%. He is not fit for work requiring repetitive lifting or use of the left arm above shoulder height. He is not fit for heavy work requiring bending, twisting or prolonged standing because of the back pain. Thus he is permanently unfit for his usual work of carpenter. He does however retain full function of his dominant arm and neck and has no difficulties in transfers with a long sitting tolerance and he should therefore be fit for lighter sedentary work with the above restrictions. Suitable occupations include light process work, cashier or clerical work etc.

Perhaps in the TDR of Dr Day, lighter alternative duties were not considered in finding him unfit for all work. Dr Ciardi had indicated possible benefit from vocational retraining or rehabilitation for work not requiring use of the left arm. In finding him unfit for all work, it appears, then that Dr Ciardi also has not considered lighter alternative duties." (T11, P64)

21. In a medical report dated 27 January 1998, Dr Day confirmed the Applicant's impairments as:

(a) chronic left shoulder, upper arm and elbow pain with limitation of movement (reduction to 30 degrees), arising because of pain. Pain in elbow on flexion/extension movement;

(b) chest pain due to a sliding hiatus hernia with gastro oesphagal reflux, with symptoms being controlled in part by medication; and

(c) lower thoracic spine pain - degenerative disease at T10, 11/-12. (T16)

22. In a medical report dated 21 April 1998, Dr Dave, a consultant orthopaedic surgeon, stated that he had been attending to the Applicant since 18 March 1997 in relation to his left shoulder. Dr Dave undertook the internal fixation of the fractured humerus on 22 March 1997, and during his post-operative, noted that the Applicant had always complained of aches and pains around the shoulder, elbow and neck, as well as complaining of functional limitations of movement with day to day activities with no hard clinical findings being found at examination to support such symptomology. Particularly, Dr Dave stated that he examined the Applicant on 21 October 1997 and his findings were as follows:

"At the visit on the 21^st October 1997 Mr Predescu was apprehensive of having the scar palpated lightly on the back of his humerus. He demonstrated full shoulder and elbow movements. There was no evidence of neurological loss in the upper limbs. There was normal thenar and hyper thenar bulk. There was normal radial nerve function. At that stage he was having physiotherapy twice a week. He was on Voltaren as required. He did not take any Panadeine or Panadol tablets. Elbow range of motion was from 0-150 comparable to the opposite side. Shoulder abduction and flexion was 170 degrees compared to about 180 on the opposite side. There was normal strength on the various muscle groups and there was no evidence of wasting of the supra or infraspinates muscles. Some scapula thoracic movement was present indicating stiffness. All the movements were performed with a cog-wheel type of jerky movements due to voluntary spasm."

In further opinion Dr Dave stated:

"I have found him fit to continue working as a salesman at the last visit. He would have some difficulty returning back to work as a carpenter which he states was his previous occupation. His condition as of the last visit had stabilised." (T25)

23. In a radiological report dated 9 December 1997, Dr Dreverman, a consulting radiologist, confirmed that the Applicant demonstrated a small sliding hiatus hernia with minor reflux and no changes of oesphagitis at barium meal examination (Exhibit A8).

24. In a radiological report of a MRI scan of the lumbar sacral spine dated 23 June 1999, Dr Adler, a consultant radiologist, opined that dessication affects the L4/5 and L5/S1 discs and several lower thoracic discs including T11/12. There is a tiny annular tear at L5/S1, with a shallow postero-central herniation without accompanying neurologic compromise. Also a postero-central disc herniation of moderate size at T11/12 without evidence of associated compromise of the neural structures (Exhibit A1).

25. Ultrasound of the Applicant's left shoulder and surrounding musculature was undertaken on 13 January 1999 and Dr Ruut, a consultant radiologist, reported the absence of any abnormality (Exhibit A1).

26. As a result of examination of the Applicant on 8 January 1999 and again on 1 March 1999 and 28 June 1999, Dr Mahony, a consultant orthopaedic surgeon, in a report dated 15 July 1999, opined:

"He also has symptoms referable to a capsulitis of his left shoulder which I would consider to be a complication of the fracture of the left humerus.

He has evidence of a left radial nerve lesion which would be a complication of the injury to the left upper limb.

He has symptoms referable to a low lumbar back strain in association with degenerate changes and there is some evidence of discogenic lesions at the T11/T12 and the lumbo sacral level.

It is consistent that the road traffic accident he described has produced such lesions aggravating a potentially irritable back.

He has been advised treatment and has been considered unfit for work. In order to minimise an exacerbation of his symptoms, I would suggest he restrict his future activities to activities not involving significant use of the left upper limb, particularly above the shoulder level or significant bending or lifting." (Exhibit A1)

submissions

27. The Applicant submitted that his nominated conditions when appropriately assessed result in a combined impairment rating of greater than 20 per cent. In this regard he relies upon the opinions of Drs Ciardi, Day and Mahony. Similarly relying on the opinions of these doctors the Applicant contends that he has a continuing inability to work. In summary it is his contention that he qualifies for a disability support pension at the time he lodged his application.

28. The Respondent contends that the Applicant's conditions when assessed have a combined impairment rating less than 20 per cent, and that the Applicant does not have a continuing inability to work. In support of their contention the Respondent relies upon the opinions and findings of the radiologists, Drs Murray and Dave.

consideration and findings

29. The following legislation is concerned with the qualification for disability support pension at the time relevant to the Applicant's claim. At that time, subsections 94(1) in part, (2), (3), (4), and (5) of the Act provided:

"Qualification for disability support pension

94 (1) A person is qualified for disability support pension if:

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

(b) the persons impairment is of 20% or more under the Impairment Tables; and

(c) because of the impairment the person has a continuing inability to work; and

...

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 two 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.

94(3) In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:

(a) the availability to the person of educational or vocational training or on-the-job training; or

(b) if subsection (4) does not apply to the person - the availability to the person of work in the person's locally accessible labour market.

94(4) For the purpose 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.

94(5) In this section:

educational or vocational training does not include a program designed specifically for people with physical, intellectual or psychological 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.

on-the-job training does not include a program designed specifically for people with physical, intellectual or psychiatric impairments."

30. In preliminary comment, the Tribunal observes that subsection 100(3) of the Act specifically focuses the Tribunal's attention to issues and circumstances of the Applicant's medical conditions as at the time of the lodgement of the claim and for a period of three months commencing the day after lodgement. Material of an evidentiary nature that has its origins outside this operative period can be considered by the Tribunal in so far as it allows the Tribunal to gain a better understanding of the impairments and the consequences which exist during the operative period.

31. In turning to the issues of this matter the Tribunal has given specific consideration to the evidence of the Applicant and the various medical opinions expressed. Particular attention has been paid by the Tribunal to the medical opinions of Drs Ciardi, Day, Dave, Murray and Mahony as well as the various radiological, ultrasound and MRI reports. The Tribunal does note that the opinion of Dr Mahony is formed as a result of consultations and examinations undertaken one year after the operative period, as indeed are the MRI examinations of the lumbo sacral spine and the ultrasound examination of the left shoulder. The Tribunal, in accordance with the nominated focus places particular attention on the reports and opinions of Drs Ciardi, Day, Murray and Dave, and the various radiological reports in existence prior to the operative period and the barium meal study occasioned during the operative period.

32. As a result of these considerations the Tribunal makes the following findings of fact in regard to the Applicant's impairments and associated clinical features:

(1) Painful left shoulder, with minimal loss of normal range of movement and power:

In arriving at this finding of fact the Tribunal has paid particular attention to the report of the attending orthopaedic surgeon, Dr Dave, who examined the Applicant on 21 October 1997 and found at examination a near normal range of movement of the left shoulder joint, the details of which are clearly nominated in his report. The Tribunal further notes the documented findings of Dr Murray in his report of 7 November 1997 which affirm the findings of Dr Dave with the exception of limitation of abduction. The Tribunal notes that both Dr Ciardi and Dr Day submitted their treating doctor's reports on 21 October 1997, and that both reports are singularly lacking in clinical detail to support the particular statements made by them. Further the Tribunal finds that Dr Day's further report of 27 January 1998 while detailing the existence of pain and limitation of the abduction movement of the left shoulder, is lacking in the necessary clinical detail which would allow the Tribunal to prefer a report from a general physician/cardiologist, over that of a treating orthopaedic surgeon and an independent medical assessment.

In turning to the issue of assessment the Tribunal, in noting that only Dr Murray has provided such an assessment, and that the Applicant's symptoms are essentially non-dominant left shoulder and left elbow, and that the Applicant can use the limb reasonably well in most circumstances including driving, dressing, eating and the daily tasks, finds that at best the Applicant has a five per cent impairment rating under Table 3 of the Schedule 1B Impairment Tables.

The Tribunal also notes that subsequent ultrasound examinations demonstrate an absence of significant abnormalities in the left shoulder joint and surrounding soft tissue, as indeed did the radiological examination in May 1997.

(2) Hiatus Hernia with Reflux:

The barium meal study of 9 December 1997 is specific in demonstrating a small hiatus hernia with minor reflux and no evidence of oesphagitis. Dr Day reports the symptoms are reasonably well controlled on medication.

In accordance with Table 13 of the Schedule 1B Impairment Tables, the Tribunal finds that the Applicant had a nil impairment rating, which is in keeping with the findings nominated.

(3) Low back pain:

The Tribunal notes the later MRI scan which indicates minor degenerative processes occurring in the thoraco lumbar sacral spine, which was indeed confirmation of what was found in the radiological examination of 17 March 1997. The Tribunal notes the findings of Dr Murray which nominated that there was none or at best minor restrictions of the normal range of movement of the thoraco lumbar spine. Further the Tribunal notes that Dr Ciardi made no mention of this condition and Dr Day was ambivalent as to the site at which the pain was occurring. Again Dr Mahony's finding can be stated as being somewhat less than definitive.

The Tribunal in considering this issue finds that the Applicant does have a mild degenerative process occurring in the thoraco lumbar sacral spine, which at best is characterised by low back pain associated with lifting, carrying or bending.

The Tribunal finds that the Applicant has at best a five per cent impairment rating under Table 6, in that the Applicant has pain in a combination of joints which responds to medication when taken.

33. In summary it is the Tribunal's finding that the Applicant does have particular impairments and the combined impairment rating of these impairments is ten per cent under the relevant Schedule 1B Impairment Tables. As a consequence the Applicant satisfies subsection 94(1)(a) of the Act, but fails to satisfy subsection 94(1)(b) of the Act.

34. In relation to subsection 94(1)(c) as defined in part by subsection 94(2) of the Act the Tribunal, in considering the reports and opinions of Drs Murray and Dave, finds that the Applicant does not have a continuing inability to work. In making such a finding, the Tribunal has assessed the Applicant's impairments and heard as to what he can and cannot do, and how he spends his day. Further the Tribunal, as already indicated, found the report of Dr Ciardi wanting in both clinical detail and appropriate clinical appreciation and the reports of Dr Day inconsistent as regards the site of the degenerative back condition. Further both doctors, while making no detailed clinical assessment of the Applicant's impairments arrive at a conclusion which is inconsistent with that of both the treating orthopaedic surgeon and Dr Murray, both of whom are prepared to detail the clinical findings by which they arrive at their particular conclusions. It is for this very reason that these opinions are preferred by the Tribunal. Further the Tribunal while noting that Dr Mahony's opinions are formed on examinations conducted well outside the operative period, concludes that his opinions are devoid of the necessary clinical detail which would allow the Tribunal to be satisfied that his opinion should be given particular weight, and in any way preferred by the Tribunal at the expense of the opinions expressed by Drs Dave and Murray.

35. As a consequence of the Tribunal's consideration and conclusions the Applicant is found not to have a continuing inability to work, in that the Applicant's impairments do not prevent him from undertaking work for which he is currently skilled as nominated by Dr Murray and that his impairments do not prevent him from undertaking educational or vocational training during the next two years, with such training likely to equip the Applicant within the next two years to do work for which he is currently unskilled.

36. In summary the Tribunal finds that in this matter the Applicant does not qualify for disability support pension, for while satisfying subsection 94(1)(a), he fails to satisfy subsection 94(1)(b) and 94(1)(c) as defined by subsection 94(2).

determination

37. The Tribunal affirms the decision under review.

I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of:

Dr J D Campbell, Member

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

Associate

Date of Hearing 8 May 2000

Date of Decision 18 September 2000

Solicitor for the Applicant Applicant self represented

Advocate for the Respondent Mr G Lozynsky, Departmental Advocate