Aksu and Department of Family and Community Services - [2000] AATA 648

DECISION AND REASONS FOR DECISION [2000] AATA 648

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1891

GENERAL ADMINISTRATIVE DIVISION       )
           Re      YETER AKSU
  Applicant
           And    DEPARTMENT, OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Ms S M Bullock, Member

Date3 August 2000
PlaceSydney

Decision      The decision under review is set aside and in substitution therefor, the Tribunal decides that Mrs Aksu was qualified for a Disability Support Pension from 6 April 1999.
  [Sgd] Ms S M Bullock
  Member
CATCHWORDS
Social Security – Disability Support Pension - physical, intellectual or psychiatric impairment - continuing inability to work.

Social Security Act 1991 s94

Re Raketic and Secretary, Department of Social Security (1985) 8 ALD 123

REASONS FOR DECISION

MS S M Bullock, Member

This is an application for review made by Mrs Yeter Aksu to the Administrative Appeals Tribunal ("the Tribunal") of a decision of the Social Security Appeals Tribunal ("the SSAT") made on 23 November 1999 (T2). The SSAT decided that Mrs Aksu would be able to undertake some form of educational, vocational or on-the-job training, despite her impairments and accordingly, Mrs Aksu was determined by the SSAT not to be qualified for a Disability Support Pension. The SSAT's decision affirmed a decision of an Authorised Review Officer ("ARO") of the Department of Family and Community Services made on 28 April 1999 (T37). The ARO's decision in turn affirmed the original decision of a delegate of the Secretary, Department of Family and Community Services ("the Department") made on 6 April 1999 (T29).
A hearing was held before the Tribunal in Sydney. Mrs Aksu provided oral evidence to the Tribunal and was assisted by an interpreter in the Turkish language. She was self represented. Brief oral evidence was also provided by Mrs Aksu's son, Alex Aksu. The Respondent, the Department, was represented by Ms H Schuster, Departmental advocate. The Tribunal took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T-documents" - T1 – T38) and the following exhibits:

Exhibit Number     Description Date
A1      Medical information Letter from Dr I Kuroz, General Practitioner Letter from Dr C F Chan, General Practitioner List of Mrs Aksu's medications List of Mrs Aksu's doctors from a Health Insurance Commission Medicare Claims History           24 January 2000 29 February 2000 12 February 2000
R1      Respondent's Statement of Facts and Contentions     30 March 2000

LEGISLATION

A determination in this matter must be made pursuant to the Social Security Act 1991 ("the Act").
Specifically, Part 2.3 of the Act deals with Disability Support Pension and section 94 deals with the qualification criteria for a Disability Support Pension. Section 94 as relevant states:
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
(d) the person has turned 16; and
(i) is an Australian resident at the time when the person first satisfies paragraph (c); or
(ii) has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or
(iii) is born outside Australia and, at the time when person first satisfies paragraph (c) the person
(A) is not an Australian resident; and
  (B) is a dependent child of an Australian resident;
and the person becomes an Australian resident while a dependent child of an Australian resident
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.

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.
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.

In this section:
education 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.

issues

The issues in this matter are:
1. Whether Mrs Aksu has a physical, intellectual or psychiatric impairment and that impairment is 20 points or more under the Impairment Tables contained within Schedule 1B of the Act ("the Impairment Tables"); and if so
2.   whether or not Mrs Aksu has a continuing inability to work because:
·     the impairment itself prevents Mrs Aksu from doing any work for at least 30 hours per week at award wages within the next two years; and either
·     the impairment of itself is sufficient to prevent her from undertaking educational or vocational training or on-the-job training in the next two years; or
·     such training is unlikely, because of the impairment, to enable Mrs Aksu to do any work for at least 30 hours per week at award wages within the next two years.

background

The following information is provided by way of background and the facts contained within are not in dispute.
·     Mrs Aksu was born on 10 March 1963 in Turkey. She attended school until she was approximately ten years old and later worked on her parents' farm, having left school. Mrs Aksu is illiterate in her own language and in English.
·     Mrs Aksu arrived in Australia on 2 August 1988.
·     Approximately four to five years ago, Mrs Aksu separated from her husband. She has four children, three of whom live with her and her other child, Alex, does not live in the family home but frequently visits and assists his mother.
·     On 11 September 1998, Mrs Aksu suffered a pathological fracture of the right femur (T3).
·     Mrs Aksu claimed Disability Support Pension on 14 February 1999, noting that at that time, she could not walk on her right leg and could not use her right arm following a "big operation on her arm".
·     In a Treating Doctor's Report of 9 February 1989, Doctor G Speldewinde, Rehabilitation Registrar, Royal South Sydney Hospital and Rehabilitation Centre, reported that Mrs Aksu had a polyostotic fibrous dysplasia of the right femur and right humerus (brittle bones) (T5).
· On 1 March 1989, Dr W G Wilson, Commonwealth Medical Officer reported that following Mrs Aksu's fracture of the right femur, she was treated surgically with internal fixation and bone grafting. Dr Wilson opined that Mrs Aksu's condition should gradually improve over a period of months, but there was a risk of further pathological fractures (T7). Dr Wilson concluded that Mrs Aksu had a 30 per cent impairment of the lower limbs from the Impairment Table, 10.5, contained in Schedule 1B of the Act, as current at that time.
·     On 3 April 1989, an Invalid Pension was granted to Mrs Aksu (T8) but was to be reviewed after 12 months.
·     On 12 November 1991, the Disability Support Pension was introduced to replace the Invalid Pension, by the Social Security Disability and Sickness (Amendment) Act 1991 (No. 141/1991).
·     In November 1992, a review of Mrs Aksu's Disability Support Pension was commenced. Dr Y Bulbulia, General Practitioner, reported on 23 November 1992 that Mrs Aksu had a deteriorating permanent disability, which included fibrous dysplasia and a duodenal ulcer diagnosed in 1989 (T10).
·     On 29 June 1993, Dr G Elder, Renal Physician, reported that Mrs Aksu had a probable left-sided vesico-ureteric reflux with possible renal damage (T11).
·     On 4 November 1993, Dr Bulbulia further reported that Mrs Aksu was permanently disabled. While her condition of fibrous dysplasia had stabilised, Dr Bulbulia reported the continued risk of spontaneous fracture of the bone. He noted that Mrs Aksu could not speak English, was unable to undertake heavy work and was not trained for office work (T13).
·     On 29 November 1993, Dr D Keen, Commonwealth Senior Medical Officer, reported that Mrs Aksu at that time, aged 30, had an underlying permanent condition of polyostotic fibrous dysplasia, a condition where bone is replaced by fibrous tissue, making it more susceptible to fracture. The condition was apparently asymptomatic until Mrs Aksu suffered a pathological fracture, in 1988. Dr Keen reported that the fracture healed with good result. At that time, Mrs Aksu was reporting pain on prolonged weight bearing or walking, and also pain when using her right arm although Dr Keen could not understand why this was so. Dr Keen opined that Mrs Aksu rated at that time an impairment of ten per cent because of the problems with walking, but in terms of her condition from the fracture, this had improved significantly. Dr Keen noted, as had other doctors, that Mrs Aksu is more susceptible to fracture and should avoid any activity which may result in trauma and hence, heavy physical work. Dr Keen concluded that Mrs Aksu would be fit for most light or moderate duties. The major barrier to her working, however, was the absence of any preparation for the paid work force, Dr Keen opined, particularly noting Mrs Aksu's lack of work skills, experience, education and English language skills. Dr Keen noted that Mrs Aksu's General Practitioner at that time, Dr Bulbulia was taking these factors into account when he made his opinion that she was unfit for all work (T15). The Disability Support Pension continued to be paid by the Department despite Dr Keen's opinion.
·     Dr E A Wegman, Consultant Gastroenterologist, reported on 5 April 1994 that Mrs Aksu's description of considerable, left-sided abdominal pain was consistent with a diagnosis of an irritable bowel. Dr Wegman was trying to organise Mrs Aksu to have a sigmodoscopy but unfortunately Mrs Aksu did not attend for her follow up visit (T16).
·     On 19 April 1994, Dr O Ali, Consultant Psychiatrist, reported that Mrs Aksu suffered from panic disorder. She presented with sleep problems, sadness and tight chestedness at night. Dr Ali also reported that Mrs Aksu had full blown panic attacks with no history however of clear avoidance or phobia (T17).
·     Further medical examinations were undertaken for Mrs Aksu by various medical practitioners.
·     Dr P Fung, on 22 April 1997, reported of Mrs Aksu's cervical spine that she had a limited range of movement due to soft tissue or muscular lesion rather than bone or joint pathology. Dr Fung further noted in relation to Mrs Aksu's lumbar spine that there was early spondylitic change present mainly in the apophyseal joints at the lumbosacral junction (T18).

Dr A J Mitterdorfer, Neurologist, reported on 21 January 1998 that there was evidence of left reflux nephropathy (T20).
Dr T G Ecker reported on 22 April 1998 following a thyroid ultrasound that Mrs Aksu had "multi-nodular change" (T21).
Dr R Mansberg, Consultant Physician, reported on 15 May 1998 that Mrs Aksu had features of a moderate goitre with reduced trapping function. This condition was consistent with an early benign "multinodular goitre", however there was no functionally significant nodules identified (T22). Similar reporting of this condition was made by Dr J Marks on 27 May 1998 (T23).
On 8 January 1999, Mrs Aksu's then treating doctor, Dr Y Oner, General Practitioner, reported that Mrs Aksu's medical conditions were osteoporosis, fibrous dysplasia, fracture of the right femur, left vesico ureteric reflux, cervical and lumbar-sacral disc prolapses and multinodular goitre (T25). Mrs Aksu had been Dr Oner's patient since 20 March 1999. Dr Oner opined that Mrs Aksu was unable to work full or part-time within the next two years. Dr Oner noted that Mrs Aksu would not benefit from vocational training or rehabilitation, giving the reason of "poor English".
·     On 13 January 1999, Mrs Aksu noted in a Disability Support Review form that she had constant neck and back pain, and was woken up constantly by this pain. She did not consider that she could work or undertake rehabilitation because of her illnesses. She noted that someone had assisted her to complete the form as she could not read or write English or Turkish (T26).
·     On 11 March 1999, Dr P Thomas, Medical Adviser to Health Services Australia, noted that Mrs Aksu had the medical conditions of cervical disc disease, lumbo-sacral disc disease, vesico ureteric reflux, multinodular goitre and polyostotic fibrous dysplasia. Dr Thomas noted that since a car accident some 18 months ago, the development of the cervical disc and lumbo disc disease had occurred.
Dr Thomas assessed Mrs Aksu's conditions as follows:
Lower limb impairment:  polyostotic fibrous dysplasia with previous right femur fracture; 10 points from Table 20.
Cervical disc disease:   nil points under Table 5.1
Lumbo-sacral disc disease:                 10 points under Table 5.2
Vesico ureteric reflux: nil points under Table 16
Multinodular goitre:   nil points under Table 19
Total combined impairment rating:     20 points.
Dr Thomas found that these impairments of themselves would not prevent Mrs Aksu from undertaking a wide variety of sedentary or semi-sedentary duties (T28). Dr Thomas concluded that Mrs Aksu needed to avoid heavy work because it put her at risk of developing a fracture and she could not therefore undertake moderate to heavy work, work at heights, or operate machinery. Further, Mrs Aksu should avoid carrying or lifting more than 5kg. Dr Thomas concluded:
"However due to her sick role, she seems to have no real motivation to attempt to enter the work force. I doubt if she will ever work." (T28, p99)
·     On 6 April 1999, the Department decided to cancel Mrs Aksu's Disability Support Pension because she no longer had a continuing inability to work (T29).
·     On 28 April 1999, the ARO affirmed the original decision to cancel Mrs Aksu's Disability Support Pension (T38).
·     On 23 November 1999, the SSAT affirmed the ARO's decision finding that while Mrs Aksu had an impairment rating of 20 points, she was able to do light, sedentary work such as clerical work or in sales or as a receptionist.
·     On 15 December 1999, Mrs Aksu applied for review of the SSAT's decision to the Tribunal. Mrs Aksu wrote
"I believe the decision made by the SSAT is wrong. I am not fit for work due to my medical conditions" (T1, p2).

evidence of mrs aksu

Mrs Aksu told the Tribunal that she has pain in her right leg, lower back, neck, knees and right arm. The pain is present everyday and she also experiences headaches from time to time. Walking and sitting also produce increased pain and on occasions, Mrs Aksu finds that when walking, her legs and knees give way. This can happen three or four times per day and she noted that on occasion she will use a walking stick.
To manage her pain, Mrs Aksu takes panadeine forte, one tablet every night. There is some difficulty with her medication however because of her duodenal ulcer.
In relation to a bone condition called polyostotic fibrous dysplasia, Mrs Aksu understood this to be a condition which cause her to have "soapy or melting bones". Mrs Aksu used to have physiotherapy for her cervical and lumbar spine problems about four and a half years ago, but does not have this treatment any longer. Specifically in relation to her back condition, Mrs Aksu told the Tribunal that this condition is present acutely for two or three days and then may ease. During the acute phase, the pain is experienced "non stop" and can last for up to a week at a time. Mrs Aksu thought that a car accident some three years ago made this condition worse but she always had some back problems, although that was never reported in her original claim.
Mrs Aksu explained that her right arm becomes numb and at night she has to apply cold water to her hand and arm and unclench her fist to obtain feeling. This condition has been present for ten years, she stated. Describing her neck condition, Mrs Aksu informed the Tribunal that she was told by a doctor that the pain in her neck comes from a problem with her cervical discs. When Mrs Aksu looks down, she experiences pain "as if my neck is broken".
For her ulcer condition, which causes pain in her stomach, Mrs Aksu takes a spoon full of syrup medication, the name for which she could not recall. This medication is taken daily.
Mrs Aksu initially told the Tribunal that she believed her severe intermittent headaches, back and neck conditions were caused by her motor vehicle accident three years ago. Later, Mrs Aksu indicated that the neck and back pain had been present prior to the accident but was not so severe.
Mrs Aksu also stated that she has low blood pressure.
During the day, Mrs Aksu may have friends visit or she will visit a friend's home. Her son, Alex, drives her to do the shopping or indeed does the shopping for her. Mrs Aksu cooks for the family but if she is in pain and finds that she cannot manage, she waits for one of her daughters to cook for the family. Mrs Aksu estimated that approximately two or three times per week she is unable to cook. Mrs Aksu described circumstances when she might be undertaking cooking and when holding some implement or ingredient, it will drop inexplicably from her hand. This happens frequently, Mrs Aksu stated. If Mrs Aksu is feeling well enough, she tries to walk for ten minutes every day but then must have a rest. When first in Australia, Mrs Aksu had attended English classes at a TAFE college. Mrs Aksu's son later organised an English course for her in an attempt to teach Mrs Aksu some English reading and writing skills. The course was to last for some months, with attendance required once per week from 9 am to 2 pm. Mrs Aksu stopped this because she was in too much pain in her back, neck and with headaches. Mrs Aksu told the Tribunal that she just "dropped out". Mrs Aksu is able to print her name in English.
Mrs Aksu stated that she has not tried to obtain work because she is not well enough. In this regard, Mrs Aksu explained that she is in constant pain, cannot bend, finds it difficult to concentrate and is always afraid that she will fracture another bone. Despite this fear, Mrs Aksu has not had any further fractures since that of 1998. This is because she is extremely careful.
In relation to the SSAT's conclusion that Mrs Aksu could undertake vocational training, Mrs Aksu stated that she did not think that she could learn and acquire new skills and she was too "scared" about breaking more bones and being forced to sit for prolonged periods when she was experiencing constant pain in her back and neck. Further, Mrs Aksu stated that she would be unable to travel alone to the centre which conducted training or indeed to work. She always had to be accompanied because she was afraid that her leg might give way.

Ms Schuster noted that Mrs Aksu's former General Practitioners, Dr Bulbulia and Dr Oner did not mention anything in their various reports about Mrs Aksu being unable to undertake light duties. Mrs Aksu stated that she did not discuss work issues with these doctors and did not know why they might not have indicated anything about her ability or inability to undertake light work. Mrs Aksu stated that she went to the doctors about her pains.
On a day to day basis, Mrs Aksu is able to get by with the help of her children. Her husband left her when her youngest child was approximately five years old so there was not a great deal of lifting or intense care required. Mrs Aksu stated that all her children are very supportive and they do just about everything together.
Mrs Aksu concluded that it was difficult for her to sit in the hearing with the level of pain she was experiencing. Mrs Aksu even found it hard attending her local mosque and finds that she is only able to attend the mosque on special religious days. Finally, Mrs Aksu asked of the Tribunal the question, "How can I be employed and work with all of my medical conditions?"
evidence of mr alex aksu
Mr Alex Aksu, Mrs Aksu's son, told the Tribunal that he left the family home approximately three and a half to four years ago but would see his mother two or three times per week when he undertakes her shopping, errands, purchases her medications takes her to the doctor or undertakes other household tasks such as mowing the lawn. Mr Aksu stated that his mother does not go anywhere without someone with her. She is unable to lift because of her bad back, she is often unable to cook because she is in pain and needs assistance from her daughters with general household tasks. Mr Aksu estimated that his mother would attend doctors twice a week because of her aches and pains and to obtain repeat prescriptions. Mr Aksu explained that his mother cannot be on her feet for too long and he did not believe that she would be able to work because she is frequently in pain. Because of this and the various medications taken by her, she must have frequent rests in the day. Mr Aksu did not think that this scenario would make her suitable for either training or employment. Mr Aksu thought that his mother had been attending Dr Kuroz for about four or five months. Mrs Aksu had left her previous general practitioner because of an argument.
Mr Aksu provided the Tribunal with a list of his mother's medication which she had been taking during the first part of the year 2000:

Panadeine forte - two tablets four times a day.
Caltrate – 600mg one table daily.
Ponstan capsules – 250mg two capsules twice daily.
Anaprox – 550mg one tablet twice a day.
Zantac – 150mg one tablet where required.
Voltaren rapid – 50mg one tablet twice daily.
Panamax – 50mg 2 tablets every four hours.
Naprosyn – 1 tablet daily when required.
Tofranil – 25mg one tablet daily.
Druvail – 200mg one capsule at night.
Ceclor tablets – 375mg one tablet twice a day for infection.
Feldene – 20mg one tablet daily for ten days.
Aropax – 20mg one tablet daily.
Rulide – 150mg 1 tablet twice daily
Urocarb – 10mg one tablet three times a day.
Prothiaden – 25mg one capsule daily.
Ducene – 5mg one tablet when required.
Digesic tablets – 325mg one tablet a day when required.
Elocon ointment – applied three times daily (Exhibit A1).

Mr Aksu estimated that his mother takes 24 tablets on a daily basis.

Mr Aksu stated that Mrs Aksu lives in apartment accommodation. In terms of finances, Ms Schuster assisted the Tribunal by informing that Mrs Aksu receives a Parenting Payment of $377.40 per fortnight gross, less $140.90 per fortnight for housing. The net payment is then $236.50 per fortnight in addition to a Family Payment of $146.70.
current medical evidence
dr c f chan, general practitioner
On 24 January 2000, Dr Chan reported that Mrs Aksu suffers from moderate osteoporosis and osteoarthritis in her right hip, noting that she had a previous fracture in the right femur. Mrs Aksu also has degenerative changes in her lumbar spine. Dr Chan concluded as a result of her medical conditions, Mrs Aksu is unable to stand or walk for long periods and she is unable to lift heavy objects. (Exhibit A1)
dr i kuroz, general practitioner
Dr Kuroz reported on 29 February 2000 that Mrs Aksu had been his patient since 19 October 1999 for her medical problems. He reported that Mrs Aksu has chronic pain in her right leg and noted that she had sustained a pathological fracture of the right femur in 1988, later being diagnosed with polyostotic fibrous dysplasia of the right femur and humerus. Dr Kuroz further reported that Mrs Aksu suffers from chronic neck pain, secondary to cervical disc disease, which has been worse since a motor vehicle accident two years ago. Her other medical conditions include left vesico ureteric reflux. Dr Kuroz concluded:
"Taking into consideration her lack of English skills, lack of work experience (never worked), fear of developing another pathological fracture and poor literacy skills and her above medical problems, I do not believe this patient is fit for any kind of work in the next two years and probably beyond two years." (Exhibit A1)

submissions

Mrs Aksu submitted that by pushing her to work the Department is pushing her towards death. The doctor who operated on her fracture after her injury, told her that she must never lift anything and must be extremely careful because her bones were not strong. Mrs Aksu asked the Tribunal what would happen if she does try to work or undertake training when her leg gives way and she falls down. Mrs Aksu asked the Tribunal to consider all of her medical problems as the reason why she cannot work or undergo training.
Ms Schuster noted that the issue for determination in this matter was very narrow. The Department accepted that Mrs Aksu has a physical impairment which satisfies subsection 94(1)(a) of the Act. Further, Ms Schuster acknowledged that Mrs Aksu has an impairment of 20 points or more under the Impairment Tables and accordingly satisfies subsection 94(1)(b) of the Act. What is at issue is whether or not under subsection 94(1)(c) of the Act, Mrs Aksu has a continuing inability to work. It is the Department's submission that Mrs Aksu does not have a continuing inability to work as defined in subsection 94(2) of the Act, and thus was not qualified for a Disability Support Pension on the date of the decision to cancel her payments.
Ms Schuster accepted that the conditions of polyostotic fibrous dysplasia, vesico ureteric reflux, enlarged thyroid and slight narrowing and bulging of the lumbo-sacral area at L2/3 and L5/S1. Further, Mrs Schuster accepted that Mrs Aksu could probably not obtain work in the next two years but this is not due to her medical conditions alone. Ms Schuster noted that Mrs Aksu could definitely not undertake work requiring her to lift heavy objects, work at heights, or operate machinery, but considered that Mrs Aksu could undertake vocational training or on-the-job training to provide her with the skills with which she could undertake light sedentary work. Ms Schuster further noted that there is no evidence of any functional loss arising from either her multinodular goitre condition or kidney problem.
Ms Schuster contended that there was little medical evidence of any limitations imposed on Mrs Aksu by her fibrous polyostotic dysplasia condition. Although noting the reports of Dr Bulbulia in 1993 (T13) and Dr Wilson in 1989 (T7), that there was a possibility of further fractures, Mrs Aksu acknowledged that there have been none since the original fracture in 1988. Accordingly, Ms Schuster submitted that there is no medical evidence that Mrs Aksu would have major functional loss due to this condition or that it would prevent her from undertaking everyday tasks as long as these did not involve heavy work or lifting which would increase her risk of fractures.
While Mrs Aksu stated to the SSAT and the Tribunal that she has difficulty walking, the Health Services Australia Adviser, Dr P Thomas, opined that Mrs Aksu could walk without an aid, could manage stairs, could walk to the shops and manage light housework (T28).
Further, Ms Schuster submitted that Mrs Aksu's evidence concerning constant pain in her back and right arm is not consistent with medical evidence. In this regard, Ms Schuster referred the Tribunal to x-rays of Mrs Aksu's spine taken in April 1997 which showed no abnormalities and only early spondolytic changes in the lumbar spine with all the disc spaces being within normal limits (T18). A MRI scan undertaken in June 1997 evidenced no problems with Mrs Aksu's cervical spine and only mild disc protrusions without any nerve root involvement (T19), Ms Schuster noted.
The Tribunal was referred to the fact that Mrs Aksu has been able to raise her family, the youngest child being five years, following her separation from her husband. Mrs Aksu can also undertake some household tasks such as cooking, washing and on occasions shopping, Ms Schuster contended.
Ms Schuster contended that Mrs Aksu's main barriers to entering the work force are not related alone to her medical conditions but involve other matters such as her lack of education and training, her lack of work skills, her child care responsibilities and her lack of motivation. Referring to the report by Dr Kuroz of 29 February 2000 (Exhibit A1), Ms Schuster noted that the report clearly showed that the factors which primarily prevent her from working are not related to her medical impairments themselves. Ms Schuster contended that it was very difficult in Mrs Aksu's circumstances to work out precisely the influence of the factors which prevent Mrs Aksu from working and in this regard it should be the pain from these various conditions which causes her inability to work and not other non-medical factors such as lack of education, no work experience and lack of motivation.
Referring to subsection 94(2) of the Act which contains various definitions in relation to a person having a continuing inability to work, the only relevant consideration for the Tribunal is whether Mrs Aksu's impairments of themselves will prevent her from working or undertaking training within the two years from the date of cancellation, Ms Schuster submitted. While noting that Mrs Aksu has few transferable work skills at present, there is nothing about her disabilities which prevents her from acquiring the necessary knowledge to increase her skills and work readiness. In this regard, Ms Schuster referred the Tribunal to short courses designed to prepare people with little or no English to enter the workforce. There are also many clerical skills courses available through TAFE, most of which run for short periods of time. Ms Schuster further submitted that there was nothing preventing Mrs Aksu from undertaking on-the-job training within the next two years and once this was undertaken she could commence light processing work such as assembly work, which Ms Schuster submitted, was mainly sedentary. While Mrs Aksu's motivation and child care responsibilities might prevent her from working, after appropriate training was completed, Ms Schuster contended that Mrs Aksu's disabilities would not prevent her from working.
Ms Schuster wished the Tribunal to note that Mrs Aksu's monetary situation is unaffected by her non-receipt of a Disability Support Pension. Ms Schuster urged the Tribunal to consider the intent behind the Disability Support Pension contending that it would not be consistent with the purposes of section 94 of the Act if Mrs Aksu received a Disability Support Pension. Further, Ms Schuster noted that Mrs Aksu is not required to look for work as she supplies medical certificates which exempt her from the Activity Test. Accordingly, Ms Schuster vehemently rejected the suggestion that the Department was pushing Mrs Aksu towards death by attempting to have her undertake training and eventually seek light duty work.
In conclusion, Ms Schuster contended that Mrs Aksu does not have a continuing inability to work as defined in subsection 94(2) of the Act and therefore does not meet the qualifying conditions for a Disability Support Pension. Accordingly, the decision to cancel Mrs Aksu's payments of Disability Support Pension made on 6 April 1999 was the correct and preferable decision and should be affirmed by the Tribunal.
findings
The Tribunal has reached a decision in this matter taking into account the oral and documentary evidence, the submissions and by applying the legislation and case law. Mrs Aksu was cooperative in the provision of her evidence and provided it to the Tribunal to the best of her ability. Mr Alex Aksu provided very frank evidence which was of assistance to the Tribunal. Mr Aksu is a credit to his family and was considered also by the Tribunal to be truthful. There is no dispute and the Tribunal so finds that Mrs Aksu has physical impairments, namely polyostotic fibrous dysplasia, cervical and lumbo-sacral disc disease, left vesico ureteric reflux and multi nodular goitre.
In relation to subsection 94(1)(b) of the Act, it has been accepted by the SSAT that Mrs Aksu's impairments are of 20 points or more under the Impairment Tables. The Tribunal considers that the following ratings are appropriate:
Condition     Impairment Table   Impairment points
Polyostotic fibrous dysplasia        20       15
Cervical disc disease         5.1      Nil
Lumbo-sacral disc disease 5.2      10
Vesico ureteric reflux         16       Nil
Multi nodular goitre 19       Nil
Total combined impairment rating                      25

The Tribunal has increased the impairment rating for Mrs Aksu's polyostotic fibrous dysplasia with previous right femur fracture because the Tribunal considers it has a moderate impact on Mrs Aksu's ability to perform work related tasks or training courses. Her symptoms are distressing and prevent her from undertaking every day activities.
Accordingly, Mrs Aksu satisfies subsection 94(1)(b) of the Act with an impairment rating of 25 points.
The Tribunal notes that it must consider Mrs Aksu's medical impairments at the time of the cancellation of the Disability Support Pension. On all the evidence, the Tribunal considers that the pain associated with all of Mrs Aksu's conditions prevents her from undertaking work within the next two years. This point was also conceded at the hearing by Ms Schuster on the Respondent's behalf. The Tribunal now turns to consider whether or not under subsection 94(2)(b)(i) of the Act Mrs Aksu's impairments of themselves are sufficient to prevent her from undertaking educational or vocational training or on-the-job training during the next two years.
It has been argued by the Respondent that there are a number of non-medical factors which impact upon Mrs Aksu and the fact that her doctors have considered her unable to undertake training. In this regard the Tribunal's attention was directed towards Mrs Aksu's lack of motivation, her poor English skills, lack of work experience and concern to undertake her child rearing responsibilities. The Tribunal accepts that these factors are present, but must make a determination as to whether or not the impairments by themselves would prevent Mrs Aksu from undertaking on-the-job or vocational training.
The Tribunal accepts Mrs Aksu's evidence, as confirmed by her son and her treating doctors that she suffers from chronic pain. The suffering of chronic pain was not disputed by the Respondent. The Tribunal also notes that Mrs Aksu has a great fear of undertaking any training or light duty work because of her fear of having another fracture. While the Tribunal notes that there has been no further fracture since 1988, this probably relates to the fact that Mrs Aksu has not put herself in a situation where this is likely to occur. Further, it is quite clear from a number of medical reports that the risk of fracture is greatly increased because of her condition. Not only is it reported in formal medical reports but doctors have told Mrs Aksu of this. The Tribunal considers that the condition of polyostotic fibrous dysplasia not only has as its consequence the bones becoming fibrous but the real possibility of fracture and Mrs Aksu's concern about this relates to the condition itself and cannot be divorced from consideration of the impact of the disability.
Further, the Tribunal considers the impact of chronic pain on Mrs Aksu's ability to participate in vocational or on-the-job-training is significant. Mrs Aksu is on a considerable amount of pain killing medication and is required, the Tribunal accepts, to undertake a number of rests during the day and also has poor concentration.
The Tribunal referred to Re Raketic and Secretary, Department of Social Security (1985) 8 ALD 123 in which the Tribunal considered the effects of pain in relation to claimants. In this regard, the Tribunal noted:
"There is a growing body of research material on pain…it can not be assumed that functional pain is somehow less crippling or disabling than pain that is related to a physical trauma. The neurological mechanisms which mediate perception of pain are highly complex and not fully understood. This is currently an intense area of research, and theories and treatments are undergoing profound change."

The Tribunal is of the view that even if Mrs Aksu did not have her difficulties with English, her motivational problems and poor work experience, she would still not be in a position to avail herself of vocational or on-the-job training. Thus, the Tribunal considers that the impairments of the polyostotic fibrous dysplasia, chronic pain from the lumbo-sacral disc disease and Mrs Aksu's fear of further fracture, which the Tribunal has considered as part and parcel of the polyostotic fibrous dysplasia condition, would not enable her to undertake training because of the pain associated with the conditions and the impact this has on her ability to concentrate. Further, the Tribunal having accepted that the pain is chronic and severe, considers that it cannot disregard the impact such pain has on a person's so called "motivation". If someone is in chronic or severe pain, the Tribunal does not consider it a just conclusion that the person lacks motivation in the sense that it is a self-willed condition of not wanting to do something. Mrs Aksu's evidence is that she is in great pain and because of it she has to often stop what she is doing or obtain help, principally from her family. It could not be said that she is not motivated to care for her family, but simply that she cannot undertake such duties because of the impact of her physical conditional alone.
Mrs Aksu experiences chronic pain on a daily basis and is taking a high level of medication for this. She also has a realistic fear instilled in her by various doctors that she must be extremely careful as her polyostotic fibrous dysplasia makes her susceptible to fracture. These are all realistic, identifiable circumstances which impact on her domestic life and, in the Tribunal's view, impact on her ability to undertake vocational or on-the-job training within the next two years. It is these conditions by themselves alone, the Tribunal considers, which cause this inability to undertake vocational or on-the-job training. That the other issues of poor English skills or no work experience exist, does not detract from the Tribunal's finding that it is Mrs Aksu's medical impairments of themselves alone, which prevent her from undertaking educational, vocational or on-the-job training within the next two years. The Tribunal therefore considers that Mrs Aksu satisfies subsection 94(2) of the Act and accordingly, Mrs Aksu then satisfies subsection 94(1)(c) of the Act in that she has a continuing inability to work.
In all the circumstances and for the reasons expressed above, the Tribunal decides that the decision under review should be set aside and in substitution therefor, the Tribunal decides pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 that Mrs Aksu was qualified for a Disability Support Pension on 6 April 1999.

I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of MS S M Bullock, Member
Signed:         .....................................................................................
  Associate
Date of Hearing  17 May 2000
Date of Decision  3 August 2000
Representative for the Applicant  Self-Represented
Representative for the Respondent  Ms H Schuster, Departmental Advocate