Avdatek and Secretary Department of Family and Community Services - [2002] AATA 880

DECISION AND REASONS FOR DECISION [2002] AATA 880

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/647

GENERAL ADMINISTRATIVE DIVISION       )
           Re      NURHAN AVDATEK
  Applicant
           And    SECRETARY DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Ms G Ettinger - Senior Member Dr P Lynch - Member

Date3 October 2002
PlaceSydney

Decision      The Administrative Appeals Tribunal sets aside the decision of the Authorised Review Officer of 12 March 2001, and the Social Security Appeals Tribunal of 23 April 2001 which refused the Applicant Mrs Nurhan Avdatek's claim for Disability Support Pension. In substitution therfore, the Tribunal finds that Mrs Avdatek is eligible for Disability Support Pension on and from the date of her application on 3 March 2000.
  ..............................................
   Ms G Ettinger
  Senior Member
Catchwords
Disability Support Pension – whether medical evidence supports claim – relevant period - March 2000 and three months thereafter – sections 94(1) and 100(3) of the SS Act 1991- decision set aside – DSP granted

Legislation
Social Security Act 1991 ("the Act") ss 94(1), 94(2) and 100(3)
Tables for the Assessment of Work-Related Impairment for Disability Support Pension ("Impairment Tables") produced pursuant to Schedule 1B of the Act -
Table 3 Upper limb function
Table 4 Function of the lower limbs
Table 5.1 Cervical spine
Table 5.2 Thoraco - Lumbar-sacral spine
Table 6 Psychiatric Impairment
Table 11.1 Gastrointestinal: Stomach, Duodenum, Liver and Billary Tract
Table 20 Miscellaneous - malignancy, hypertension, HIV infection, morbid obesity (ie bmi >40), heart/liver/kidney transplants, miscellaneous ear/nose/throat conditions & chronic fatigue or pain

Case Law
Secretary, Department of Social Security v Pusnjak [1999] FCA 994

REASONS FOR DECISION

3 October 2002 Ms G Ettinger - Senior Member Dr P Lynch - Member

The first decision under review before the Administrative Appeals Tribunal ("the Tribunal") was the decision of the Delegate of the Secretary, Department of Family and Community Services ("the Department") (T29), dated 6 June 2000. This decision was subsequently reviewed by a number of Customer Service Officers of the Department before it was affirmed by the Authorised Review Officer (T47), on 12 March 2001, and then by the Social Security Appeals Tribunal ("SSAT") (T2), on 23 April 2001, all of which refused the claim by the Applicant, Mrs Nurhan Avdatek for Disability Support Pension ("DSP").
The Applicant was represented by Mr C Colborne of counsel instructed by Ms G Read, solicitor, of the Legal Aid Commission, and the Respondent Department was represented by its advocate, Ms C Collis. The Applicant and the Tribunal were assisted by Mrs S Ryner, an interpreter in the Turkish language.
ISSUE BEFORE THE TRIBUNAL
The issue before the Tribunal was:
·Whether the Applicant satisfied the criteria pursuant to section 94(1) of the Social Security Act 1991 ("the Act") in that she had a physical, intellectual or psychiatric impairment and whether that impairment was of 20 points or more under the Impairment Tables in Schedule 1B of the Act; and if so,
·Whether the impairment was of itself sufficient such that she had a continuing inability to work pursuant to the tests in section 94(2) of the Act; and
·whether Mrs Avdatek was thus eligible for Disability Support Pension ("DSP") on and from 3 March 2000 or within a period of three months thereafter pursuant to section 100(3) of the Act.

LEGISLATIVE FRAMEWORK

The relevant legislation in this matter is the Social Security Act 1991, in particular sections 94(1), 94(2), and 100(3) which follow, as relevant:
"94 Qualification for Disability Support Pension
94(1)A person is qualified for disability support pension if:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person's impairment is of 20 points or more under the Impairment Tables; and
(c)one of the following applies:
(i) the person has a continuing inability to work;
…
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 two years.
Note:For work see subsection (5).
…
94(5)In this section:
educational or vocational training does not include a program designed 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.
…
100(3)If:
(a)a person lodges a claim for a disability support pension; and
(b)the person is not, on the day on which the claim is lodged qualified for a disability support pension; and
(c)the person becomes qualified for a disability support pension sometime during the period of 3 months that starts immediately after the day on which the claim is lodged;
the person's provisional commencement day is on the first day on which the person is qualified for the pension and is an Australian resident and in Australia
…"

EVIDENCE BEFORE THE TRIBUNAL

The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T-documents") (Exhibit R1) and the following other exhibits:
ITEM DATE NAME
T-Documents Exhibit R1
Respondent's Statement of Facts and Contentions      25 January 2002     Exhibit R2
CV & Report of Dr P Kamenyitzky 8 October 2001       Exhibit R3
Report of Dr M Gliksman    21 November 2001 Exhibit R4
Report of Dr P Kamenyitzky         26 November 2001 Exhibit R5
Report of Dr P Harvey-Sutton      6 September 2001   Exhibit A1
Letter of Dr Y Oner 8 April 2002   Exhibit A2
Report of Dr Y Oner 7 January 2002       Exhibit A3
Covering letter and three articles 29 January 2002     Exhibit A4

EVIDENCE OF THE APPLICANT – MRS NURHAN AVDATEK

Mrs Avdatek, who was born in Turkey on 28 February 1955, gave oral evidence before the Tribunal with the assistance of an interpreter in the Turkish language. She told the Tribunal that she had trained in a two year diploma course to be a hairdresser, and that she had been licensed as a hairdresser since arriving in Australia. Mrs Avdatek said that she was divorced in 1980, and that she had a son aged 26 years.
Mrs Avdatek told the Tribunal that she managed her own salon in Turkey and had been offered work in a Turkish salon in Australia between 1991 and 1995 which she had not accepted. She said she had wanted to work in a salon where English was spoken in order to learn English better. Mrs Avdatek also confirmed that she stopped looking for work after a motor vehicle accident in 1995 because of her health. She said she had not tried other work because she was trained to work as a hairdresser. In response to questions regarding her ability to work, Mrs Avdatek said that because of her conditions she was unable to get out of bed to go to work on a regular basis.
Mrs Avdatek told the Tribunal that she wanted to work in her chosen profession, but that she was unable to because she had low morale, and English was a prerequisite. She had tried to learn English, but had subsequently become ill. However she was now enrolled at TAFE to further learn English, but felt that her powers of concentration and retention of information were not good. She said that she could not and did not attend regularly. Mrs Avdatek said she did not know why she had difficulty with concentration and retention of information, but said it could be related to stress and her headaches.
When asked what happened to make her ill, Mrs Avdatek said that it was pain in her feet and body, and that she did not know the cause, but that she felt psychologically low. She said that she did not feel happy when she woke up and had stomach pain when eating.
Mrs Avdatek told the Tribunal that she had a motor vehicle accident in 1995, and that this hurt her back and neck. She said she had headaches and felt tired, and that the pain was continuously present. She said that her headaches increased in severity after the motor vehicle accident. The Applicant also reported having stomach discomfort for which she takes medication.
When reminded that she had told the SSAT her feet hurt, Mrs Avdatek said that everything hurt; it was like thorns or spurs, an extension of the bone she said.
When asked about the treadmill exercises she mentioned at the SSAT, Mrs Avdatek said that the treadmill belonged to her son and she was unable to use it.
When asked whether she could now work, Mrs Avdatek said that she did not think so because her knees and legs were numb and she had back pain. She also felt dizzyness which had commenced not long ago. Mrs Avdatek said that when she was on her feet doing ironing or washing dishes, she felt this pain. She said that household chores and cooking took a long time because she had to rest between chores. She said that she could drive for short distances, and shop slowly. Mrs Avdatek said that she had been told by her doctors to relax and not get upset.
When asked in cross-examination whether she had told Dr Gliksman that the worst problem was her lower back, Mrs Avdatek agreed. She said that it affected her in that she could not walk, work, or do her chores because she had pain, and she did not feel well.
When asked about her left knee in cross-examination, Mrs Avdatek said that she had been told she could have an operation but that she was not convinced it would assist. She was reminded she had told the SSAT that the knee was not bad, but replied that she bandaged it at night, had a fear of operations, and accordingly tolerated the pain. During the hearing, Mrs Avdatek said that her left elbow was not a problem at the time.
Mrs Avdatek said that she visited her siblings and a friend once or twice a week, and drove short distances. She said that she did not socialise in the Turkish community. Mrs Avdatek agreed she could turn her head for purposes of driving, but said that she only drove short distances.
Mrs Avdatek said that she took Panamax, Dimadon and Panadeine Forte for her pain, and that she spent two weeks at a time in bed due to pain from time to time. Although Mrs Avdatek gave some indication of how much medication she took, the Tribunal found that she was unable or unwilling to tell the Tribunal how long a packet of Panadeine Forte lasted her. The Applicant told the Tribunal that other family members used the medication, and she was therefore unable to work out exactly how much she took, but it appeared from her answers that she had taken approximately ten tablets of a packet of 20 in a period spanning some five months.
As to other treatment, Mrs Avdatek told the Tribunal that she found physiotherapy unhelpful after a short time of trying it out.
Mr Avdatek said that she had attended a psychiatrist but could not recall the name of the doctor. When asked whether it was that she went to the psychiatrist after being having her claim for DSP rejected, Mrs Avdatek replied that she had been going to see a psychiatrist for a long time before that. The Tribunal noted that Mrs Avdatek had been a patient of Dr A Stephenson, psychiatrist, between 1995 and 1997. Dr Stephenson's reports were before the Tribunal at T4 and T13. When asked why she had been seeing a new psychiatrist, [Dr Chaudhary], Mrs Avdatek said that it was for sleep problems. Ms Collis also asked Mrs Avdatek why she had not mentioned depression to Dr Gliksman in her consultation in January 2001 to which Mrs Avdatek answered that he had not asked.
MEDICAL EVIDENCE
There were a number of medical reports documenting the Applicant's injuries and impairments in evidence before the Tribunal, all of which have been considered, and the most relevant discussed below.
evidence of dr p harvey-sutton – consultant occupational physician
Dr Harvey-Sutton whose report of 6 September 2001 was before the Tribunal as Exhibit A1, gave oral evidence. Referring to her report, Dr Harvey-Sutton indicated that where she had written "trigger points", this was synonymous with the term "tender points".
Dr Harvey-Sutton was questioned about the report of Dr Stephenson (T13/51) in relation to her own diagnosis of fibromyalgia syndrome. Dr Harvey-Sutton said that fibromyalgia was a pain disorder, a collection of symptoms or a syndrome, which included feelings of fatigue and depression. She said that she preferred the term pain disorder because it led to better management of the patient which included taking into account the musculo-skeletal side.
When asked whether a feature of the syndrome was the inability to recall the name of the psychiatrist and other basic things the way Mrs Avdatek had demonstrated in her evidence, Dr Harvey-Sutton said that the syndrome caused the world to "implode" around people who had it. They felt muscle aches and general pain, and psychological pain. Such people did not know what was happening to them, and felt everything was just passing them by she said.
Dr Harvey-Sutton also opined that Mrs Avdatek was not capable of work or being retrained for work due to the syndrome. When asked whether there was any work which the Applicant could do, Dr Harvey-Sutton replied in the negative, adding that the Applicant could not do an after school child care job or house cleaning because she was depressed.
When asked about "tender points" and "trigger points", Dr Harvey-Sutton said that they were terms used in common parlance and were interchangeable. Fibromyalgia was a constellation of symptoms she said, which together made a syndrome.
When asked whether Mrs Avdatek's fibromyalgia could be measured at 20 impairment points, Dr Harvey-Sutton said that the Applicant had told her she was limited in her every day activities, and avoided doing tasks which needed doing. The Tribunal noted that in her report at Exhibit A1, Dr Harvey-Sutton rated the Applicant at 20 impairment points under Table 20 of the Tables for the Assessment of Work-Related Impairment for Disability Support Pension ("Impairment Tables") produced pursuant to Schedule 1B of the Act.
Dr Harvey-Sutton said that pursuant to Tables 5.1 and 5.2 of the Impairment Tables, Mrs Avdatek had two thirds loss of the normal range of movement. She acknowledged that the results of examinations (MRI and others), which she had seen indicated that there were few objective signs of injury. Dr Harvey-Sutton explained that she had used a combination of functional impairment and assessment of Mrs Avdatek's pain and measured 20 impairment points in relation to the Applicant.
When asked by the Tribunal whether she was aware of possible malingering by the Applicant, Dr Harvey-Sutton replied that she was aware of such possibility, and took it into account in her examination and considerations. She explained the tests she used in suspected cases. She agreed there could be some embellishment in this case, but said that the presentation she found of Mrs Avdatek was that she was trying to explain her difficulties. When questioned about muscle wasting, Dr Harvey-Sutton explained that this was not usual in fibromyalgia. When questioned about the Applicant restricting her movement during examination, Dr Harvey-Sutton said that in cases of pain disorder such as Mrs Avdatek's, the patient did not participate to maximum capacity, and that such patients had a restricted outlook. Dr Harvey-Sutton opined that Mrs Avdatek was likely to have suffered the syndrome since the motor vehicle accident of 1995.
reports of dr y oner – general practitioner
The reports of Dr Oner dated 7 January 2002 (Exhibit A3) and 8 April 2002 (Exhibit A2), were before the Tribunal. In his report of 7 January 2002, (Exhibit A3), Dr Oner referred to a report of 28 November 2001. This was however not before the Tribunal. Dr Oner's earlier report dated 24 July 2000 was at T33.
In his report at T33, Dr Oner referred to Mrs Avdatek having cervical spondylosis, having an L4/L5 intervertebral disc degenerative lesion, and being restricted in her lifting and sustained or prolonged sitting or standing. He also referred to a left knee injury, anxiety and depression for which Mrs Avdatek had been referred to psychiatrists, Drs Stephenson and Chaudhary. He also mentioned other conditions.
Dr Oner rated Mrs Avdatek as follows pursuant to the Impairment Tables:

Lumbar-Sacral disc bulging as per Table 5.2 - 10% (sic)
Cervical Spondylosis as per Table 5.1 - 5% (sic)
Severe Anxiety and Depression as per Table 6 - 10% (sic)
Left knee osteo-arthritis/bilateral planter spurs Table 4 10% (sic)

Dr Oner gave Mrs Avdatek a 35 impairment point overall rating.

In his letter of 8 April 2002 to Mr Colborne, (Exhibit A2), Dr Oner stated that he agreed with Dr Harvey-Sutton's diagnosis of fibromyalgia syndrome. In his report at Exhibit A3 dated 7 January 2002, he indicated that Mrs Avdatek had been treated by Dr Chaudhary [psychiatrist] for the past six months and had been prescribed the antidepressant, Aurorix.
reports of dr m gliksman – psychologist
The report of Dr Gliksman dated 24 January 2001 was at T40 and the report of 21 November 2001 was Exhibit R4 before the Tribunal.
In his report Dr Gliksman noted that Mrs Avdatek reported aches and pains all over her body and detailed the various areas of complaint she described. The Tribunal noted that it was consistent with the reports given to other doctors. Dr Gliksman noted from the investigations that there was no significant physical abnormality detected, neither that there was muscle wasting. He stated that he did not report on Mrs Avdatek's emotional or psychological symptoms because she did not raise any with him. He also considered Mrs Avdatek had exaggerated her physical restrictions on examination.
report of dr p kamenyitzky - health services australia
Reports of Dr Kamenitzky were before the Tribunal at Exhibits R3 and R5. In his report at Exhibit R3 dated 8 October 2001, Dr Kamenyitzky referred to Dr Gliksman's report and noted that Mrs Avdatek did not mention anxiety/depression to Dr Gliksman. He noted further that she did not take a therapeutic dose of anti-depressants, and did not see a psychiatrist. Accordingly he did not feel that the anxiety/depression component of her complaint would be sufficient to rate an impairment rating.
Dr Kamenyitzky also opined that Drs Stephenson and Harvey-Sutton had taken non medical invalid issues such as the cultural context into account in assessing Mrs Avdatek's ability to work.
Dr Kamenyitzky also referred to Mrs Avdatek's conditions saying that "they seem to have remained unchanged over the last few years but have been given a new interpretation and name by Dr Harvey-Sutton."
The Impairment Tables addressed in the evidence of the various doctors who examined Mrs Avdatek, (some of whom did not address the Impairment Tables), were as follows:
impairment of the neck
Table 5.1 of the Impairment Tables sets out the criteria for the assessment of impairment of the cervical spine. It provides:
"NIL Normal or nearly normal range or movement.
FIVE Loss of quarter of normal range of movement.
TENLoss of half of normal range of movement and frequent/constant neck pain or loss of three quarters of normal range of movement with infrequent neck pain.
TWENTYLoss of three-quarters or normal range of movement and constant neck pain".

Dr Harvey-Sutton awarded an impairment rating of 5 points and reported:
"… on inspection of the neck, there was normal posture. There was widespread reported tenderness over the cervical, thoracic and lumbar spine. When the widespread tenderness over the whole of the spine was elicited, trigger points were palpated and she reported tenderness over most of the trigger points, including the right and left shoulder joint, medial epicondyles of the right and left elbow, over the right and left iliac crest posteriorly and over the medial aspects of both knee joints."
Dr Oner rated Mrs Avdatek at 5 impairment points in accordance with Table 5.1 (T33/137).
impairment of the back
Table 5.2 outlines the impairment ratings for injuries to the back based on demonstrable loss of movement. As relevant these follow:
"NIL               Normal or nearly normal range or movement.
FIVE             Loss one-quarter or normal range of movement.
TENLoss of one-quarter or normal range of movement as well as back or referred pain:
·     with many physical activities and
·     with standing for about 30 minutes and
·     with sitting or driving for about 60 minutes.
or
Loss of half of normal range of movement.
TWENTYLoss of half of normal range of movement as well as back pain or referred pain."
Dr Harvey-Sutton in the Summary and Recommendations section of her report, stated that Mrs Avdatek demonstrated "more than loss of ½ normal range of movement as well as having back pain and referred pain with most physical activities." She assessed an impairment rating of 20 points.
Dr Oner rated Mrs Avdatek at 10 impairment points in relation to Table 5.2 (T33/137).
Dr T Cimenbicer, general practitioner who had been treating Mrs Avdatek since 1992, completed a "Treating Doctor's Report" on 27 June 2000. He described the effects of the Applicant's lower back pain by ticking the box marked "unable to lift, carry and move objects", (the most serious rating on a scale of four).
impairment of the shoulder
Table 3 outlines the impairment ratings for loss of upper limb function. It provides, as relevant:
"NIL 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.
FIVEDemonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of non-dominant upper limb which causes moderate interference with hand function or manual handling.
…"
Dr Harvey-Sutton opined that Mrs Avdatek demonstrated "loss of less than half-normal range of movement." She said that the Applicant reported pains as coming and going and rated the impairment at five points
gastritis
Table 11.1 is relevant to this condition. As relevant it follows:
"NIL Peptic ulcer/oesophagitis/liver disease: mild symptoms despite optimal treatment.
TEN Nausea and vomiting: moderate symptoms despite optimal treatment; Peptic ulcer/oesophagitis: continuing frequent symptoms despite optimal treatment; Past gastric surgery with moderate dyspepsia and dumping syndrome Established chronic liver disease. Symptoms (eg fatigue, nausea) may cause minor loss of efficiency in daily activities but rarely prevent completion of any activity.
TWENTY Constant dysphagia requiring regular dilatation
Vomiting: severe, not controlled despite optimal medication, and causing significant weight loss Peptic ulcer refractory to all treatment including surgery or with complications eg bleeding or outlet obstruction Established chronic liver disease. Symptoms (eg, more persistent fatigue, nausea, abdominal pain) may prevent or lead to avoidance of some daily tasks and simple tasks will usually aggravate symptoms of fatigue. Most daily activities can be completed but only with some difficulty.
THIRTY Diet limited to liquid or to pureed food or long term total parenteral nutrition;
Gastrostomy
Established chronic liver disease. Symptoms (eg, ascites, bleeding disorders, hepatic encephalopathy, more severe fatigue, nausea, vomiting) may cause substantial difficulty with most daily tasks."
Dr Harvey-Sutton did not find a basis for impairment rating other than nil pursuant to this table when assessing Mrs Avdatek.
Dr Cimenbicer described the Applicant's abdominal pain as having been present for 1 – 2 years (at the time of reporting in 2000).
knee pain
Dr Harvey-Sutton opined that "this is subsumed under Table 4 in relation to her left foot condition. … [the] condition of her knees is part of her generalised Fibromyalgia condition."
In relation to knee pain, Dr Oner rated Mrs Avdatek at 10 impairment points pursuant to Table 4 (T33/137).
Dr Gliksman indicated that the knee problem had not yet stabilised and Mrs Avdatek acknowledged surgery had been mentioned to her but that she had a fear of surgery and was not contemplating it.
Dr Cimenbicer noted that the left knee pain had been present since 1999.
depression
Table 6 outlines psychiatric impairment, as follows:
"NILMild but regular symptoms which tend to cause subjective distress. On most occasions able to distract themselves from this distress. Minimal interference with function in everyday situations. Exacerbation of symptoms may cause occasional days off work. (eg. There may be some loss of interest in activities previously enjoyed. There may be occasional friction with family, colleagues or friends) Medical therapy or some supportive treatment from treating doctor may be required.
TEN Moderate and regular symptoms and generally functioning with some difficulty. (eg. noticeable reduction in social contacts or recreational activities, or the beginnings of some interference with interpersonal or workplace relationships). May have received psychiatric treatment which has stabilised the condition. Minor effects on work attendance and/or ability to work but the would not prevent full-time work. (eg. short periods of absence from work).
TWENTYPsychiatric illness or disorder with either serious symptomatology in functioning that requires treatment by a psychiatrist (eg. frequent suicidal ideation, severe obsessional rituals, frequent severe anxiety attacks, serious anti-social behaviour, diagnosed psychotic illness with continuing symptoms). There is significant interference with interpersonal or workplace relationships with serious disruption of work attendance or ability to work.
THIRTY Serious psychiatric illness with major in several areas, such as work, interpersonal relations, judgement, thinking, or mood (eg. depressed person avoids friends, neglects family, unable to do housework), OR some impairment in reality testing or communication (eg. speech is at times obscure, illogical or irrelevant).
FORTYMajor chronic psychiatric illness which results in an inability to function in almost all areas, OR behaviour is considerably influenced by either delusions or hallucinations, OR serious in communication (eg. sometimes incoherent or unresponsive) or judgement (eg. acts grossly inappropriately)."
Dr Oner at T33/137 on 24 July 2000, rated Mrs Avdatek at 10 impairment points for anxiety and depression.
Dr Harvey-Sutton opined "she would still appear to have anxiety depressive symptoms and I am of the opinion that these are consistent with her Fibromyalgia syndrome."
Dr Gliksman indicated in a later report that he did not mention any psychological problems in his report of 24 January 2001 (T40), because the Applicant did not raise any with him.
Dr Cimenbicer diagnosed major depression with its onset in 1995, and considered it a long term condition to be treated with counselling, psychiatric review and anti-depressants.
Dr Stephenson (T13), opined that: "a motor vehicle accident occurring on the 13/3/95 has resulted in a mild post traumatic stress syndrome together with exacerbation of depression and pain disorder which has become chronic." Dr Stephenson had been seeing Mrs Avdatek at approximately one to two month intervals at the time of the report at T13 dated 4 June 1997. Dr Stephenson also opined regarding the prognosis that: "the outlook as regards significant improvement is poor. Mrs Avdatek regards herself as significantly disabled and remains at risk for chronic depression and pain disorder."
Dr Kamenyitzky noted that Mrs Avdatek did not take a therapeutic dose of anti-depressants, and did not see a psychiatrist (Exhibit R3). Accordingly he did not feel that the anxiety/depression component of her complaint would be sufficient to rate an impairment rating.
table 20
Consistent with her diagnosis of fibromyalgia, Dr Harvey-Sutton considered that the Applicant should be assessed applying Table 20 of the Impairment Tables, and measured Mrs Avdatek's disability pursuant to Table 20 at 20 impairment points. As appropriate Table 20 follows:
"NILControlled hypertension
Malignancy in remission with a good to fair prognosis
Minor symptoms which are easily tolerated and have no appreciable effect on ability to work.
TEN Mild to moderate symptoms which are irritating or unpleasant but which rarely prevent completion of any activity. Symptoms may cause loss of efficiency in daily activities but minimal interference performing or persisting with work-related tasks. There is minimal effect/impact on work attendance.
Hypertension that is difficult to control despite intensive therapy but without end-organ damage
Potentially life-threatening condition which is currently not interfering with daily activities eg. malignancy in remission with a poor prognosis
Heart/Liver/Kidney transplants - well controlled (well functioning) with only mild systemic symptoms.
FIFTEEN Moderate to severe symptoms which are more distressing but prevent few everyday activities. Self-care is unaffected and independence is retained. Symptoms may have mild to moderate impact on ability to perform or persist with work-related tasks and/or attend work. Full-time work would still be possible.
Potentially life-threatening condition which is currently interfering with daily activities but self-care is unaffected.
TWENTY More severe symptoms with a decreased ability/efficiency to carry out many everyday activities. Most daily activities can be completed with some difficulty. Symptoms may prevent or lead to avoidance of some daily tasks and simple tasks will usually aggravate symptoms of fatigue. Symptoms cause significant interference with ability to perform or persist with work-related tasks. Symptoms may cause prolonged absences from work.
THIRTY Very severe symptoms which lead to substantial difficulty with most daily tasks. Assistance with elements of self-care may be required. Symptoms cause severe interference with ability to work or attend work (ie. minimal residual work capacity).
Heart/Liver/Kidney transplants - poorly controlled (poorly functioning) with fairly severe symptoms which lead to substantial difficulty with most daily tasks
Malignant hypertension - severe, uncontrolled
Inoperable, symptomatic and life-threatening aneurysm or malignancy. Very poor prognosis with only a very limited lifespan.
FORTY Major restrictions in many everyday activities. Capacity for self-care is restricted, leading to dependence on others. No residual work capacity."
Dr Kamenyitzky (Exhibit R3), opined that Dr Harvey-Sutton had:
"developed a new diagnosis to accommodate all of the medical conditions displayed by the customer. This diagnosis of Fibromyalgia could reasonably be used to accommodate her generalized aches and pains as well as her symptoms of anxiety and depression. However it seems that the customer does not see a psychiatrist nor does she take a therapeutic dose of anti-depressants and so the anxiety and depression component of her fibromyalgia of itself would not be sufficient to rate an impairment rating.

He then continued after reviewing other medical reports, opining as follows:

"I have listed my reasons and examples above and so on the balance of probabilities I would recommend that the customer continues to have a combined impairment rating of 10 at table 20 for Fibromyalgia …"

SUBMISSIONS AND CONCLUSIONS

In deciding whether Mrs Avdatek satisfied the requirements of section 94(1) and 94(2) of the Act during the relevant period and therefore, qualified for DSP from the time of her application on 3 March 2000 and for the three months following that date, (section 100(3) of the Act), the Tribunal had to take into account the evidence, legislation, case law and final closing written submissions submitted some time after the hearing of the oral evidence, in order to make the correct and preferable decision.
The Tribunal was mindful that Mrs Avdatek's complaints appeared to worsen in the period since her motor vehicle accident of 1995, and were pain in her back, neck and knees, and calcaneal spurs, menorrhagia, stomach discomfort, goitre/swelling in the neck, and anxiety and depression. She consistently made complaints to most of the doctors who examined or treated her about all these conditions, although it appeared she did not mention any psychological problems (anxiety/depression), to Dr Gliksman, saying that he had not asked her about it.
The Tribunal moved then to consider whether Mrs Avdatek had, at the relevant date, a combined physical, intellectual or psychiatric impairment rating of 20 or more (section 94(1)(a) and (b) of the Act), applying the Impairment Tables set out in Schedule 1B of the Act. In doing so, Mr Colborne's submissions were noted to be as follows:

Reliance on the diagnosis of fibromyalgia as made by Dr Harvey-Sutton (Exhibit A1), and reliance on the relevant research papers (Exhibit A4) before the Tribunal;
Reliance on a triggering event, the motor vehicle accident in 1995 and stress;
Noting that in 1997, Dr Stephenson who had treated the Applicant for two years opined that Mrs Avdatek was at risk of developing a chronic pain disorder;
Reliance on Mrs Avdatek's reports of incapacitating pain arising out of the fibromyalgia diagnosis as characterised by musculoskeletal pain and abnormal soft tissue tenderness at "tender points" and "trigger points" ;
Reliance on reports of the Applicant of chronic widespread pain (in particular in the neck and back), low pain threshold, fatigue, sleep disturbance, psychological distress (anxiety and depression) and poor memory;
Acceptance of the fact that radiological examinations revealed few objective clinical signs;
Acceptance of the proposition that the Applicant exhibited certain exaggerations in describing her symptoms, that being a feature of the diagnosis;
Noting that the memory problems which are part of the diagnosis of fibromyalgia contributed to the replies the Applicant gave before the Tribunal regarding levels of medication;
Noting that the condition of fibromyalgia has stabilised and is unlikely to improve in the forseeable future.

Ms Collis on the other hand, submitted:

The Respondent's reliance on the opinions of Drs Gliksman and Kamenyitsky whose findings in accepting some impairment, assessed it at only 10 impairment points.
Mrs Avdatek's evidence was unreliable and exaggerated.
The Respondent did not accept Dr Harvey-Sutton's diagnosis of fibromyalgia, relying rather on the views of other doctors qualified in this matter.
The Respondent relied on the Commonwealth Medical Officer's assessment at T19/101 that Mrs Avdatek exaggerated the level of her pain and that the medication taken did not accord with the reports of pain.
There was no radiological evidence confirming cervical impairment (noting that Dr Harvey-Sutton accepted that the cervical scan of 12 July 1996 demonstrated no abnormality).
The Applicant had not consulted Dr Stephenson since 1997. Medication prescribed by Dr Stephenson was of a very low dosage and did not act as an antidepressant. It was only in mid 2001, after the relevant period that Mrs Avdatek further consulted a psychiatrist.
The Respondent submitted that therefore the psychiatric component of the Applicant's impairment had not yet been stabilised and that it could not therefore be taken into account in the present application.
Dr Gliksman's examination of Mrs Avdatek's heels did not reveal objective clinical evidence of plantar fascitis; the Applicant was able to walk and shop.

The Tribunal was mindful of the submissions of the parties and preferred those of the Applicant for the following reasons:

The Tribunal accepted that, notwithstanding some slight exaggeration which is likely to have arisen as a result of not being believed by the doctors who examined her, as Mr Colborne submitted, the Applicant's evidence was credible. The Tribunal had at first expressed concern regarding the evidence at the hearing, questioned Mrs Avdatek accordingly, and was then satisfied that she suffered widespread pain.
The Tribunal noted from the report of Dr Erol (T9), dated 12 April 1996, that Mrs Avdatek had suffered muscular ligamentous strain of her cervical spine and her lumbar spine in the motor vehicle accident in which she was involved in March 1995. The Tribunal relied also on T10/37 the report of Dr D Manohar, medical specialist, Musculo-Skeletal & Rehabilitation Medicine, dated 16 August 1996, who diagnosed musculo-ligamentous strains both lumbar and cervical, and muscle tension headaches, and in view of the continuing symptoms at that time, organised further investigations.
The Tribunal noted at T39, (3 May 1999), Dr G Smith, medical advisor to Health Services Australia, clearly concerned, also indicated he needed further information and recommended that Mrs Avdatek be examined by an occupational physician.
The Tribunal accepted that the Applicant suffers widespread pain as described, and that notwithstanding the objective negative radiological results, she exhibits the appropriate "trigger" or "tender points" for the diagnosis of fibromyalgia syndrome (Dr Harvey-Sutton, Dr Oner). The Tribunal relied also on the discussions of the symptoms and effects of fibromyalgia in the research papers at Exhibit A4.
The Tribunal accepted that the fatigue, low pain threshold, sleep disturbance, problems with memory and other complaints the Applicant spoke of are part of the diagnosis of fibromyalgia. The Tribunal noted that Dr Gliksman (psychologist, Exhibit R4), indicated that the reasons for there being no mention of emotional or psychological symptoms in his report was because Mrs Avdatek made no such complaints. He stated:
"It is my medical opinion that if no emotional or psychological symptoms are raised at any time during an examination by a patient, it is reasonable to presume that none are suffered or if they are, are not of a sufficient intensity for the person to raise."

The Tribunal was mindful of Mrs Avdatek's evidence that she did not mention her psychological state to him because Dr Gliksman did not ask her about it, noting also that it was undisputed she had been a patient of Dr Stephenson, psychiatrist, from 1995 to 1997, and who had diagnosed anxiety/depression and mild PTSD. The Tribunal noted also from Dr Gliksman's report dated 24 January 2001 at T40 that he based all his recommendations on physical findings alone, (no muscle wasting, lack of objective radiological evidence of problems), and discounted Mrs Avdatek's reports of pain. The Tribunal preferred the evidence of Dr Harvey-Sutton, Dr Stephenson, Dr Oner, Dr Kamenyitzky and other medical practitioners who recognised Mrs Avdatek's reports of widespread pain which she had reported consistently since the motor vehicle accident of 1995.
The Tribunal accepted Dr Harvey-Sutton's opinion that the condition has stabilised and that it is unlikely to improve in the forseeable future, and noted it was corroborated by Dr Stephenson who opined: "a motor vehicle accident occurring on the 13/3/95 has resulted in a mild post traumatic stress syndrome together with exacerbation of depression and pain disorder which has become chronic." Dr Stephenson had been seeing Mrs Avdatek at approximately one to two month intervals at the time of the report at T13 dated 4 June 1997. Dr Stephenson also opined regarding the prognosis that: "the outlook as regards significant improvement is poor. Mrs Avdatek regards herself as significantly disabled and remains at risk for chronic depression and pain disorder."

The Tribunal preferred the submissions of the Applicant as stated above, accepting the diagnosis of fibromyalgia syndrome (Dr Harvey-Sutton and Dr Kamenyitzky), and based on the evidence of Mrs Avdatek's restrictions in her activities and mental state, accepted the rating of 20 impairment points as given by Dr Harvey-Sutton. The Tribunal noted that the treating general practitioner Dr Oner agreed with the diagnosis.
In considering Table 20 of the Impairment Tables, in relation to Mrs Avdatek, the Tribunal considered the rating given by the various doctors, and came to the conclusion that Dr Harvey-Sutton's rating of 20 impairment points was the appropriate one. In coming to that decision the Tribunal accepted Mrs Avdatek's evidence that she had problems carrying out her daily household chores, and that they took a long time to do. The avoidance of attending classes and looking for work because she was distracted, could not concentrate or was otherwise in pain accorded with Dr Harvey-Sutton's description of patients with fibromyalgia. It was both her opinion and the evidence of Mrs Avdatek that the Applicant could not therefore attend at work. The Tribunal noted that Mrs Avdatek also said that she spent days or weeks at a time in bed, was unable to get up and get going, and suffered pain in her stomach when she ate.
The Tribunal was therefore satisfied in applying the Impairment Tables set out in Schedule 1B of the Act, that the Applicant suffers at least 20 impairment points in satisfaction of the hurdles in sections 94(1)(a) and (b) of the Act.
The Tribunal moved then to consider section 94(1)(c) of the Act and to assess whether the Applicant has a continuing inability to work. Work is defined in the Act as work that is for at least 30 hours per week at award wages or above and that exists in Australia, even if not within the person's locally accessible labour market (Secretary, Department of Social Security v Pusnjak [1999] FCA 994).
Section 94(2) of the Act which is also relevant follows:
"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
(c)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 years."
Mr Colborne's submissions with regard to Mrs Avdatek's ability to work were:

Mrs Avdatek's evidence was that (already before the motor vehicle accident), she felt depressed. She had pain in her feet and her whole body and could not sleep. She suffered headaches and problems with memory, affecting her study of English and life generally. This escalated after the motor vehicle accident in 1995.
The Applicant's condition of fibromyalgia has stabilised and remained unchanged over the past few years. Dr Oner, the Applicant's treating doctor accepted that diagnosis, and noted that the condition had not improved. In a report of 4 September 2000, he indicated for all the conditions he diagnosed Mrs Avdatek as having, such as lumbar and cervical conditions and pain, anxiety/depression, neck pain, insomnia, and knee pain, that they were long term and likely to persist for at least two years (T38).
Lack of English skills, period out of the work force and cultural factors can be taken into account in assessing ability to work.
The Applicant is unable to work within the terms of the legislation.

The Respondent's submissions in that regard were:

The Respondent did not accept the diagnosis of fibromyalgia and disputed the level of pain, claiming that Mrs Avdatek exaggerated it.
The opinions regarding inability to work obtained by Mrs Avdatek related to non-medical factors irrelevant to the determination under the Act.
Any medication the Applicant has taken is of a sub-clinical dosage.
The Respondent relied on Secretary, Department of Social Security v Pusnjak (supra) to determine that work means work of a kind which the Applicant is by reason of her existing work skills and experience capable of performing without the need for retraining. The Respondent submitted that Mrs Avdatek was capable of full time suitable work of 30 hours or more bearing in mind her restrictions. Suggestions for the work included bench assembly work, supervisory/management of a hairdressing salon or as a manicurist, beautician or pedicurist within the Turkish community.
The psychological component of the Applicant's impairment was not yet stabilised at 3 March 2000 and could not be taken into account in connection with the present claim.

The Tribunal preferred Mr Colborne's submissions on behalf of the Applicant for the following reasons:

The Tribunal accepted that Mrs Avdatek suffers fibromyalgia syndrome as described by Dr Harvey-Sutton, noting that the diagnosis was also confirmed by Dr Oner, Mrs Avdatek's general practitioner (Exhibit A2) and Dr Kamenyitzky.
The Tribunal accepted that because Mrs Avdatek has fibromyalgia, the apparent lack of motivation to work, the evidence regarding inability to wake up in the morning to go to work, and the reports of widespread pain, albeit perhaps slightly exaggerated, were genuine and consistent with the diagnosis.
The Tribunal accepted also that Mrs Avdatek's memory and concentration are impaired as a result of her illness which has stabilised, and is unlikely to improve in the forseeable future. The Tribunal, relying on Dr Harvey-Sutton, Dr Stephenson and Dr Cimenbicer, rejected the submissions of the Respondent that Mrs Avdatek's psychological condition had not yet stabilised and that it therefore could not be taken into account in assessing impairment and ability to work.
Language skills, the learning of which were affected by the lack of concentration Mrs Avdatek suffers, and memory problems (as a result of the fibromyalgia), may also be taken into account in considering the total picture.
The Tribunal rejected Dr Kamenyitzky's contention (Exhibit R3) that Dr Harvey-Sutton and Dr Stephenson had been influenced by non medical issues and used the incorrect criteria in assessing Mrs Avdatek's ability to work by referring to the fact she had not worked for the past ten years, and to her lack of English and socio-cultural background. They were not the only factors considered by those doctors. Dr Harvey-Sutton gave oral evidence in person before the Tribunal and was extensively questioned about Mrs Avdatek's condition and her capacity to work. She gave evidence that she had taken precautions in testing and examining Mrs Avdatek in case the Applicant was malingering. The Tribunal was satisfied to the requisite standard that she had considered the diagnosis and its consequences correctly, and agreed with the diagnosis of fibromyalgia, noting also the literature on the topic at Exhibit A4.
The Tribunal was mindful of Dr Stephenson, the treating psychiatrist's opinion of 4 June 1997 (T13/51) where she opined:
"the outlook as regards significant improvement is poor. Mrs. Avdatek regards herself as significantly disabled and remains at risk for chronic depression and pain disorder.
…
Mrs. Avdatek would be unable to undertake her former work as a hairdresser because of her inability to stand for long, limited mobility of the left hand and neck and impaired concentration."

The Tribunal was mindful also Dr Kamenyitzky gave Mrs Avdatek a 10 point impairment rating in Table 20.
On 23 March 1997, Dr N Berry, specialist general surgeon (T11/41), considered Mrs Avdatek unfit for work as a hairdresser except for short periods, and imposed restrictions with regard to lifting, bending, and stooping. He opined: "Her prognosis is guarded as her symptoms and disability persist …"
The Tribunal noted also the report of Dr A Capa of the Family Medical Centre at Auburn who stated at T30, a report of 23 June 2000, that he had been treating Mrs Avdatek for the past ten years, and that he considered that due to stress and her medical conditions, she was unfit for training or physical duties.
The Tribunal also noted the report of Dr E Durmush, general and laparoscopic surgeon, dated 13 July 2000 (T32), who opined that Mrs Avdatek had not improved in the past four years in which he had seen her.
The Tribunal was mindful also of the opinion of Dr Cimenbicer (T31), who had treated Mrs Avdatek since 1992, and wrote that a return to work of any sort, whether full or part-time was "unpredictable". He ticked boxes in the form at T31 indicating the Applicant's condition would cause her to be confused alternating between tasks, that she was unable to lift, carry or move objects, and that her interaction with others would result in "highly inappropriate behaviour" at least an hour a day.
The Tribunal accepted Dr Harvey-Sutton's opinion that because of the widespread nature of Mrs Avdatek's fibromyalgia syndrome, which has musculoskeletal and emotional and behavioural components, she is unfit for work or to be retrained and employed in work for which she is not currently trained. Dr Harvey-Sutton also commented on the restrictions for Mrs Avdatek which Dr Gliksman recommended, and opined that these appeared to preclude her working as a hairdresser, or housecleaner/hotel room attendant.

The Tribunal therefore accepted that the Applicant's impairment was of itself sufficient to prevent her from doing any work (having regard to the definition of work in the Act), within the next two years, and the impairment was of itself sufficient to prevent Mrs Avdatek from undertaking educational or vocational training or on-the-job training during the next two years. The Tribunal also considered in the alternative, whether any such training would enable Mrs Avdatek to do any work within the next two years, and concluded that the impairment was such as to render any training (if at all possible), impractical and likely to be unsuccessful.
Accordingly, the Tribunal accepted that the Applicant satisfied the tests in sections 94(1)(c) and 94(2) of the Act in that her condition of fibromyalgia, the impairment, was of itself sufficient to prevent Mrs Avdatek from doing any work (within the terms of the legislation), within the next two years, and from undertaking educational or vocational training or on-the-job training during the next two years, and that any such training would not enable her to do work within the next two years.
Therefore, having decided that the Applicant is impaired to the level of 20 impairment points pursuant to section 94(1)(a) and (b) of the Act, and meets the tests in sections 94(1)(c) and 94(2) of the Act, the correct and preferable decision is to set aside the decision of the Respondent and the SSAT to find that the Applicant is eligible for disability support pension on and from 3 March 2000.
DECISION
The Administrative Appeals Tribunal sets aside the decision of the Authorised Review Officer of 12 March 2001, and the Social Security Appeals Tribunal of 23 April 2001 which refused the Applicant Mrs Nurhan Avdatek's claim for Disability Support Pension. In substitution therfore, the Tribunal finds that Mrs Avdatek is eligible for Disability Support Pension on and from the date of her application on 3 March 2000.

I certify that the 79 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member and Dr P Lynch, Member.
Signed: G Heggen   .....................................................................................
  Associate
Date/s of Hearing  10 April 2002; Final
  Written Submissions Received
  23 May 2002
Date of Decision  3 October 2002
Counsel for the Applicant        Mr C Colborne
Solicitor for the Applicant         Ms G Read, Legal Aid Commission
Advocate for Respondent       Ms C Collis