Ayshan and Department of Family and Community Services - [2000] AATA 655

DECISION AND REASONS FOR DECISION [2000] AATA 655

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1531

GENERAL ADMINISTRATIVE DIVISION       )
           Re      SAID AYSHAN
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Ms S M Bullock, Member

Date4 August 2000
PlaceSydney

Decision      The decision under review is affirmed.
  [Sgd] S M Bullock
  Member
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – Impairment Tables – continuing inability to work

Social Security Act 1991 section 94

Secretary, Department of Social Security v Goudge (1989) 17 ALD 415

REASONS FOR DECISION

4 August 2000 Ms S Bullock, Member

This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") by Mr Said Ayshan, of a decision of the Social Security Appeals Tribunal ("SSAT") made on 6 September 1999, that Mr Ayshan did not qualify for a Disability Support Pension (T2). The SSAT's decision affirmed a decision of an Authorised Review Officer ("ARO") of the Department of Family and Community Services, made on 8 February 1999 (T27) followed by a further ARO review on 25 May 1999 (T37). The original decision, made by a delegate of the Secretary, Department of Family and Community Services ("the Department") on 6 October 1998 (T10), noted that Mr Ayshan's impairment ratings under the Impairment Tables contained in Schedule 1B to the Act, had been assessed at 10 points which was less than the 20 points required for qualification for a Disability Support Pension.
A hearing was held in Sydney on 19 April 2000. Mr Ayshan represented himself and provided oral evidence with the assistance of an interpreter in the Arabic language. 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-T40) and the following exhibits:

Exhibit Number       Description    Date
A1      Letter from Dr H J Napper, Consultant Psychiatrist     7 October 1999
A2      List of Mr Ayshan's doctors           Received by Centrelink on 25 October 1999
A3      Letter from Dr A Matter, Physician and surgeon 15 January 2000
A4      Medical certificate from Dr M F Guirgis, Orthopaedic Surgeon          8 March 2000
R1      Medical Review and Treating Doctor's Report by Dr M Attia   22 October 1999
R2      Medical Assessment Report by Dr I Weingarten, Medical Adviser, Health Services Australia            18 February 2000
R3      Respondent's Statement of Facts and Contentions     17 March 2000
R4      Computer Printout – Newstart Allowance payment history for the financial years: 1991/92; 1992/93; 1993/94; 1994/95; 1995/96; 1996/97; and 1997/98.
R5      Computer Printout – Payment Summary 18 April 2000
Issues

The issues to be determined in this matter are as follows:
1.does Mr Ayshan have a physical, intellectual or psychiatric impairment; and if so
2.is Mr Ayshan's impairment 20 points or more under the tables for the assessment of impairment for a Disability Support Pension contained in Schedule 1B to the Act ("Impairment Tables"); and if so
3.does Mr Ayshan's impairment cause him to have a continuing inability to work for at least 30 hours per week within the next two years, or prevent him from undertaking educational, vocational training or on-the-job training during the next two years?

Legislation

The legislation under which this matter is to be determined is the Social Security Act 1991 ("the Act") and specifically, section 94 which deals with the Disability Support Pension.
Section 94, as relevant, is as follows:
94 Qualification for disability support pension
(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;
(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
          (e)       the person either:
(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 the 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.
94 (2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(a)the impairment is of itself sufficient to prevent the person from doing any work within the next 2 years; and
(b)       either:
(i)the impairment is of itself sufficient to prevent the person from undertaking educational or vocational training or on-the-job training during the next 2 years; or
(ii)if the impairment does not prevent the person from undertaking educational or vocational training or on-the-job training - such training is unlikely (because of the impairment) to enable the person to do any work within the next 2 years.
94 (3)In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a)the availability to the person of educational or vocational training or on-the-job training; or
(b)if subsection (4) does not apply to the person - the availability to the person of work in the person's locally accessible labour market.
94 (4)For the 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.
94 (5)   In this section:
educational 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.
…"

Background

The following information is provided by way of background and the facts contained herein are not disputed.

Mr Ayshan was born on 3 July 1944 in Palestine and married on 29 June 1970. Mr Ayshan has four children aged 30 years, 28 years, 19 years and 17 years.
Mr Ayshan was educated to the equivalent of Year 12 in Beruit. He obtained his trade qualifications as a plumber and when in Australia, attended Randwick TAFE to obtain his Australian qualifying certificate.
Mr Ayshan came to Australia on 23 September 1972 (T3).
In 1993, Mr Ayshan was retrenched from work as a plumber but undertook some casual work on and off, ceasing this type of work in about 1998, at that time working approximately 30 hours per week. The dates for the cessation of all work is subject to Mr Ayshan's difficulty with remembering dates. Mr Ayshan had, however, worked as a plumber in Australia for more than 25 years (T2).
On 27 July 1998, Mr Ayshan lodged a claim for Disability Support Pension in respect of the conditions, "severe allergy, back pain, neck pain, headaches and dizziness" (T3, p51), noting these disabilities started to make it difficult for him to work from May 1998.
On 18 July 1998, Dr A Matter, General Practitioner, reported in relation to back pain and sinusitis in a "Work ability information – PROFESSIONAL'S REPORT", that Mr Ayshan would be able to work more than 20 hours per week within six months (T4, p62). Mr Ayshan himself wrote that he could work part-time within six to 12 months but not full-time before two years or more (T5, p68).
On 25 June 1998, Dr P Bass, Specialist in Allergic Diseases, noted that Mr Ayshan had considerable problems with his sinuses with "multiple approaches to this problem to achieve some benefit", including desensitising injections (T7).
On 21 August 1998, Dr A Casolin, Medical Adviser with Health Services Australia, reported that Mr Ayshan's main problems were joint pains affecting the knees, shoulders and lower back, and obesity. He exhibited only a minor reduction in spinal range and a mild decrease in shoulder power. The sinus condition was considered temporary by Dr Casolin. Dr Casolin assigned an impairment rating of 10 per cent and opined that Mr Ayshan was unable to work as a plumber but could undertake light work such as the duties of a gatekeeper, console operator or cashier (T8).
On 6 October 1998, Mr Ayshan's claim for a Disability Support Pension was rejected and he was informed by letter of this decision (T10).
Mr Ayshan provided further medical evidence to the Department including a letter from Dr P Bass, noting chronic sinusitis due to multiple allergies which was requiring constant treatment (T11). Further radiological reports (CT Scans and ultrasound reports were provided, including those by Dr I Devadason (T13) and Dr P Hunter (T14).
On 23 October 1998, Dr J Cochrane, Medical Adviser with Health Services Australia, having reviewed the further medical evidence, concluded that there was no evidence at that stage to contradict Dr Casolin's initial findings of a ten per cent impairment rating (T15).
Mr Ayshan underwent further medical tests and investigations and on 2 December 1998, Dr G G Mahony, Orthopaedic Surgeon reported:
"Mr Ayshan has developed symptoms referable to a cervical strain with nerve root irritation affecting the upper limbs, a tear of the right supra spinatus tendon, a capsulitis of his left shoulder as well as a low lumbar back strain with nerve root irritation affecting the lower limbs and degenerate changes in his knees.
He has evidence of thalassaemia as well as an iron deficiency condition.
He has been advised (sic) further investigation and has been considered unfit for work and I would not suggest he return to the workforce." (T20, p119)

On 8 January 1999, Dr M Reading, Medical Adviser with Health Services Australia, reviewed Dr Mahony's orthopaedic report and noted that although Dr Mahony had reported a reduction in Mr Ayshan's spinal movements, that this was due to Mr Ayshan's voluntary guarding rather than any underlying deterioration in pathology. While further noting Dr Mahony's opinion that Mr Ayshan had an inability to work, Dr Reading opined that Dr Mahony's reasons took into account non-medical factors and Dr Reading concluded that the ten per cent rating originally assigned by Dr Casolin remained appropriate (T22).

An internal departmental review was undertaken, followed by a review by an ARO who determined on 8 February 1999 to affirm the decision that Mr Ayshan was not qualified for a Disability Support Pension (T27).

Further medical evidence was provided by Mr Ayshan including a report from Dr P Monaghan, Consultant Physician in Nuclear Medicine, who reported on 10 March 1999 that there was no significant change in Mr Ayshan's condition and reported evidence of moderately active osteoarthritis involving the knee, right ankle and first MTP joints. Dr Monaghan further reported minor age degenerative arthritic changes involving the lumbar spine. When comparing this evidence with prior reports, Dr Monaghan concluded that there did not appear to have been significant progression of the condition (T31).

On 16 March 1999, Dr M Guirgis, Consultant Orthopaedic Surgeon, reported:

"The above clinical picture is consistent with a generalised degenerative disorder including cervical & lumbar discopathy, spondylosis. There was clinical evidence of irritability of the median nerve in the carpal tunnel. There was also clinical evidence of the left S1 nerve root. There was as well evidence of actively symptomatic degenerative changes in the shoulders and the knees…
From the total impairment point of view according to Schedule 1B of the Impairment Schedule to Social Security Act – 1991, I would estimate that the patient had total body impairment percentages as follows:

Cervical spine (Table 5.1) 5%. Loss of about one quarter of normal range of movement.
Lumbar spine (Table 5.2) 10%. Loss of about one quarter of normal range of movement.
Sciatic pain (Table 6) 5%. Sciatic pain occurring frequently: present some of the time when walking.
Chronic pain and dysfunction in the right and left arm (Table 3) 5%. Shoulder pain as may be expected with painful arc syndrome'. (T32, pp129, 130)
On 29 March 1999, Dr T Ly, Rehabilitation Consultant, reported that Mr Ayshan had a Whole Person Impairment rating of 60% using guidelines set out by the American Medical Association and the J-Tech Tracker Machine and it was unlikely that Mr Ayshan would be able to "obtain gainful employ in the near future" (T33, p136).

On 6 April 1999, Health Services Australia Medical Adviser, Dr T Rogers, undertook a review of Mr Ayshan's file and in particular, considered a recent medical bone scan which showed osteoarthritis in some right lower limb joints. Further, Dr Rogers noted that Dr Guirgis' report was "internally inconsistent" and "lacks detail". In this regard, Dr Rogers did not consider that Dr Gurigis' report provided an independent assessment and noted that he reported the condition of carpal tunnel syndrome. The report was considered also by Dr Rogers to be subjective and taking into consideration non-medical factors. Apart from the bone scan, Dr Rogers concluded that the most recent medical reports "lacked objectivity" but thought it only fair to Mr Ayshan that an independent specialist's assessment be undertaken, particularly in view of there being considerable variation in the reported range of Mr Ayshan's movement (T34).

On 22 April 1999, Dr B Corrigan, Rheumatologist, reported that Mr Ayshan had a mild degree of degenerative joint disease and a partial tear of the right supraspinatus tendon. Dr Corrigan concluded that Mr Ayshan was able to perform light employment for at least 30 hours per week (T35).

On 4 May 1999, Dr M Reading, Medical Adviser with Health Services Australia, concluded, based on Dr Corrigan's report, that the impairment level of ten points remained appropriate as assessed by the then Commonwealth Medical Officer, Dr Casolin (T36).

On 25 May 1999, following Mr Ayshan's request for a further review by an ARO of the initial ARO's decision of 8 February 1999, Ms C Carboni, an ARO, reviewed the decision and decided to affirm it (T38).

On 2 June 1999, Mr Ayshan lodged an appeal to the SSAT (T39) and on 6 September 1999, the SSAT affirmed the ARO's decision, however, increased the impairment rating to 15 points from Table 20 of the Impairment Tables. Despite the SSAT increasing Mr Ayshan's impairment rating, he still did not meet the required 20 points and as such did not satisfy subsection 94(1)(b) of the Act and accordingly was considered not qualified for a Disability Support Pension.

On 6 October 1999, Mr Ayshan made an application for review to the Tribunal stating that his disabilities were greater than was reflected in the assessment by the SSAT and that he was unable to work (T1).

Evidence of Mr Ayshan

Mr Ayshan stated that his main health problems were his feet, which were swollen and painful on the balls and sole of the foot, knee pain, inability to use his right thumb ascending into his hand, severe sinus problems, neck, back and shoulder pain and a heart condition. Two days prior to the hearing, Mr Ayshan was involved in a motor vehicle accident. He was sitting in a stationary car waiting for his wife and when he was in the process of getting out the car, another car hit his car. Mr Ayshan told the Tribunal that he injured his back, his head, neck and shoulders and was taken to Westmead Hospital, where he remained for six hours in a great deal of pain. X-Rays, blood tests and other investigative tests were undertaken and he was eventually allowed to leave hospital, and provided with a letter to take the next day to his General Practitioner, Dr Attia. Mr Ayshan informed the Tribunal that this accident exacerbated his health problems, particularly his chronic pain.
In relation to his Disability Support Pension claim form, Mr Ayshan stated that his son helped him complete it and agreed that at the time the claim form was lodged on 27 July 1998, the conditions he claimed of severe allergy, back pain, neck pain, headaches and dizziness were the conditions he had at that time. However, he noted that these conditions have worsened since then and others, such as his hand and thumb situation, were probably present, as was his shoulder pain, but he had not thought that it was so severe at that time as to document it in the claim form for Disability Support Pension. Mr Ayshan indicated that he has had reports from General Practitioners, Dr Attia and Dr Matter and both were his doctors, but recently Dr Matter had been overseas and Dr Attia had provided him with certificates and reports.
In relation to his feet problems, Mr Ayshan stated that this condition started six or seven years ago but has become worse in the last two to three years. Mr Ayshan told the Tribunal that he takes daily the medication Naprosyn, 100mg, Panadeine Forte and Voltarin. In addition to attending his general practitioner, Dr Attia, Mr Ayshan also consults an Orthopaedic Surgeon, Dr Guirgis, approximately every three months and another Orthopaedic Surgeon, Dr Mahony, approximately every two months. These two orthopaedic surgeons in fact treat all his orthopaedic problems, Mr Ayshan stated.
Mr Ayshan reported that he has a "cracking" sound in his knees and there is constant throbbing and pain. The medication he takes for his feet, back, neck and shoulder problems is also relevant to his knee condition.
In relation to Mr Ayshan's right thumb, he reported pain and numbness in his arms and shoulder, as well as a feeling similar to an electric shock in his right thumb. This feeling is constant and there is also numbness extending into his right hand and a problem with left hand numbness. This pain and feeling of electric shock and on occasions numbness, has been present for approximately two and a half to three years.
Mr Ayshan also experiences a shoulder problem, which has been in existence since he was living in Lebanon before coming to Australia, but was not so significant as to report it on his claim form. The condition has worsened however. It started in his right shoulder and then moved across to his left and moves from one shoulder to the other. At the time of the hearing, the pain was more prominent in his left shoulder, Mr Ayshan reported.
Mr Ayshan told the Tribunal that he has severe neck pain, again experiencing feelings like electric shocks in his neck. Mr Ayshan explained that his ability to move his neck is severely affected and if he needs to turn, he in fact turns his whole body as opposed to normal neck movement from side to side. The difficulty of movement of the neck is particularly prominent when turning his neck from the right side to the left and if he does try this, severe pain radiates down his back. Again, the medications which are taken for this and the other previously mentioned conditions are Naprosyn, Panadeine Forte and Voltarin. The difficulty is that Mr Ayshan is taking a great deal of medication and particularly strong pain killers. The side effect of such a high level of medication is that he often feels drugged and unable to concentrate. Mr Ayshan reported also having severe back pain which was throbbing and present at "belt level" all the time. This pain reduces his mobility, his ability to sit down and once sitting down, he cannot sit for long. The back pain, while concentrated in his back, travels down his leg and on occasions he experiences sciatica.

More recently, Mr Ayshan has been advised that he has a heart condition, hypertension and high cholesterol. He has occasional attacks of angina and breathing difficulties as a result of his heart condition. Mr Ayshan is currently under the care of Cardiologist, Dr Nasar. Mr Ayshan takes two forms of medication for his heart condition but could not recall their names. In addition to chest pains, Mr Ayshan occasionally experiences heart palpitations.
Also in recent times, Mr Ayshan has been consulting a Psychiatrist, Dr Naper. Dr Naper prescribed Aurorix 300mg and on 7 October 1999 reported that there was no doubt in his mind that Mr Ayshan was suffering from depression and this seemed to have come on about two years ago, that is in 1997. Dr Naper noted that Mr Ayshan is on high doses of analgesics, is a smoker and experiences a great deal of physical pain in his back, shoulder and knees (Exhibit A1). Mr Ayshan discontinued the Aurorix because he found this made him too drowsy. He has been prescribed another anti-depressant, the name of which he could not recall, but takes one tablet every one and a half to two days.
Mr Ayshan also suffers from an allergic sinus condition and referred the Tribunal to his treating specialist in allergic diseases, Dr P Bass, who reported on 25 June 1998 and subsequently on 13 October 1998 that Mr Ayshan suffers from chronic sinusitis due to multiple allergies and is under constant treatment (T7-T11). Mr Ayshan also provided the Tribunal with a letter from Dr A Matter, Physician and Surgeon, who on 15 January 2000 reported that Mr Ayshan has severe allergic rhinitis and associated hay fever and that he is so symptomatic that he is under de-sensitisation treatment weekly. Mr Ayshan told the Tribunal that he receives one injection per week for his sinus problems (Exhibit A2). Mr Ayshan particularly experiences the condition most severely when there is a change of weather and this can be then severe for approximately two or three months of the year. The injections provide some relief but he still experiences sneezing, hay fever, watery and red eyes. Mr Ayshan agreed with the proposition put by Ms Shuchster that there was nothing about his knees, heart, shoulder or depression in his claim form but reiterated that at the time he thought it not worth mentioning the problems. It was not in fact until March 1999 that Dr Guirgis started treating him. Mr Ayshan had consulted with Dr Guirgis because of all of his conditions and had been referred to him by his General Practitioner. When he saw Dr Guirgis, Mr Ayshan was asked whether or not he wanted a report and Mr Ayshan agreed that one could be prepared by the Orthopaedic Surgeon. Further, it was Dr Guirgis' idea to refer him to Access Rehabilitation for assessment by Dr Ly, Rehabilitation Consultant. Mr Ayshan noted that an Egyptian officer at the Lakemba Centrelink office had told him that he needed more reports to provide information and support for his claim for a Disability Support Pension. Hence, Dr Guirgis' suggestions to provide a report and refer him to a rehabilitation consultant was consistent with the Centrelink officer's advice.
Ms Schuster questioned Mr Ayshan as to whether or not he may not have been cooperating with the Rheumatologist, Dr B Corrigan to the best of his ability, by not undertaking assessment tasks set for him by Dr Corrigan. Mr Ayshan denied this, stating that he was in a great deal of pain and was not being deliberately uncooperative, but just unable because of his physical limitations to undertake certain tasks set for him. This was contrary to the situation with the two hour investigations conducted by Dr Ly, but Mr Ayshan stated that each day is different and he must take his pain and limitations as they come. He told the Tribunal that some days he has extensive pain and on other days the pain is there but may not be so severe.
In relation to his hand condition, Mr Ayshan stated that this has been steadily worsening, as has his shoulder. He stated that it is quite clear that he has physical problems, but recognised that the issue which must be decided upon is the extent of the severity of the pain and the limitations each condition causes him. It is the overall combination of these disabilities which greatly limits his daily activities, Mr Ayshan informed the Tribunal.
Mr Ayshan told the Tribunal that his health conditions caused him to cease work. He could no longer carry the oxyacetalline tank which was required as part and parcel of the duties he performed as a plumber. Further, he could not go up steps or steep inclines and found it difficult bending down and digging. Mr Ayshan stated that contrary to the suggestions made by Dr Casolin, Medical Adviser with Health Services Australia, he would be unable to undertake the duties of a gatekeeper, cashier or computer operator. Mr Ayshan stated that such assertions were "easier said than done". Because he was in constant pain, on medication, needed to change his position and indeed have frequent "naps", he would not be able to perform any duties, let alone those suggested by Dr Casolin. Further, Mr Ayshan noted that he found it very difficult to concentrate for any length of time.
Currently, Mr Ayshan spends his day mainly at home "sitting like a vegetable". He cannot hold anything in his right hand, is in constant pain and needs many rests. Mr Ayshan explained that he can dress himself, but sometimes his wife will need to help him with fine motor tasks such as small buttons. Prior to his being hit by the car on 17 April 2000, Mr Ayshan had been able to drive ten to 15 minutes at most. He could use trains or buses but since the accident, the pain in his back has worsened and he has been unable to drive the car. Mr Ayshan is able to attend the local mosque once per week but since his accident he has not even contemplated such an outing because of him feeling so unwell.
Mr Ayshan indicated that he had tried to look for work for a period of about six years whilst he was unemployed. He gained casual work as a plumber from time to time, which he had told the Department about. Mr Ayshan had also tried to obtain work other than as a plumber but found that prospective employers, when they questioned him about his age and his health, never phoned him back. Mr Ayshan did try undertaking letter drop work, but had to cease because of the large distances he was required to walk. This caused him great pain in his legs and back and this, he decided, was most unsuitable given his disabilities. After this Mr Ayshan recommenced looking for casual work as a plumber, despite not really being well enough for such duties, he told the Tribunal.
In relation to work in a shop or as a car park attendant as has been suggested by medical advisers with Health Services Australia, Mr Ayshan stated that he could not sit down or stand up all the time, nor would he be able to have the "naps" that his disabilities demanded of him.
Mr Ayshan stated that his disabilities were very bad before 17 April 2000 but since that accident, he felt much worse.
Current Medical Evidence
Dr M Attia - General Practitioner
On 22 October 1999 in a Medical Review and Treating Doctor's Report, Dr Attia noted Mr Ayshan's conditions of post-traumatic mechanical derangement of the spine, depressive illness, cardiac arithmas and hypertension. Dr Attia reported that Mr Ayshan was taking the medication Naprosyn, Panadeine Forte, Aurorix and for his heart, Noten, Lopid and Astrix. Dr Attia had been Mr Ayshan's doctor for nine years at that time and opined that Mr Ayshan would be unable to work either full-time or part-time within the next two years and that it was likely to be greater than that. (Exhibit R1)
Dr A Matter – Physician and Surgeon
Dr Matter reported on 15 January 2000 that Mr Ayshan has severe allergic rhinitis, desensitisation treatment weekly and noted his other conditions of cervical strain with severe root irritation, painful upper limbs, as well as a tear in the supra spinatis tendon with associated capsulitis of the left shoulder. Dr Matter opined that these conditions are quite disabling and compounded by lower limb pain due to discopathic nerve root irritation of the lumbar spine. Mr Ayshan also experiences knee degenerative capsulitis as a complicating factor. Further, Dr Matter reported that Mr Ayshan suffers a great deal of anxiety and depression complicated by erectile impotence. Mr Ayshan is also under H2 Antagonists treatment from Dr Matter for a further condition of reflux oesophagitis diagnosed by endoscopy by Dr Borody. (Exhibit A3)
Dr I Weingarten – Medical Adviser, Health Services Australia
Dr Weingarten, who had previously reviewed Mr Ayshan's files, reported on 18 February 2000 that Mr Ayshan had chronic pain in the neck, back, arms and legs, but she had been unable to examine him. Dr Weingarten noted:
"… I was unable to examine him, as there was marked voluntary guarding – hardly any movement in his back or neck (yet on informal observation his neck and back movements were quite free). I am therefore unable to assess his impairment from this condition.
He also feels depressed with poor concentration, insomnia and short temper. He was recently commenced on medications by a new psychiatrist and today was not clinically depressed. I therefore consider this condition as temporary at this stage.
…" (Exhibit R2)

Dr Weingarten further reported that Mr Ayshan has hypertension, well controlled by medications and though investigated for cardiac arrhythmias, is not on medications for that condition. On Dr Weingarten's examination, Mr Ayshan's heart rate was regular. There were nil points considered appropriate from Table 1, Dr Weingarten opined. Dr Weingarten considered that Mr Ayshan was temporarily unfit to work because of his depression and once this depression was controlled, a rheumatologist should further assess him regarding his pain, as she had been unable to do so. Accordingly, Dr Weingarten was unable to advise at that stage as to Mr Ayshan's ability to work. (Exhibit R2)
Submissions
Mr Ayshan submitted that he had been truthful about his disabilities. It is not his desire, he told the Tribunal, to be unable to work. In this regard, Mr Ayshan submitted that prior to his illness he was earning approximately $2,000.00 per week and that for him to accept a Disability Support Pension of approximately $300.00 per fortnight is not something he would wish upon himself. Mr Ayshan submitted that he has four children who he hopes will look after him and help him to cover his costs and pay his rental of $120.00 per week.
Mr Ayshan submitted that he has real medical problems which have always been there and the pain which he experiences is not fabricated, but genuine. Mr Ayshan wished the Tribunal to understand that it is his disabilities which cause him great pain and discomfort, which prevent him from having a more active lifestyle and further, which prevent him from working. Mr Ayshan submitted that even if he wanted to undertake other duties besides those of plumbing, he would not be able to concentrate for long enough to learn any new skills or be retrained.
Mr Ayshan asked the Tribunal to consider that the "government doctors" took notes but they are not treating him. Some of the doctors did not spend very much time at all examining him whereas his treating doctors, who have been treating him for years, know his conditions well and have provided honest and genuine opinions. Mr Ayshan further submitted that the SSAT had understood his conditions and had given him five extra points and that the Tribunal should consider doing the same.
Mr Ayshan contended that his conditions are worsening and that "I'm in trouble". Mr Ayshan asked the question as to why his doctors are prescribing all the medication for him if he is not in a great deal of pain and if he does not have all of the conditions he asserts he has. Doctors do not give medication unless there is a reason and Mr Ayshan submitted that there is very good reason for him to have the type and level of medication prescribed for him.
Mr Ayshan stated that he is unable to sleep because of his pain and he is willing to go to any doctor to whom the Department might wish to send him so that he could prove to all concerned the severe level of his disabilities. In such circumstances, Mr Ayshan submitted that he was eligible for a Disability Support Pension, that his impairments warranted a rating of higher than 15 points and that there was no possibility of him either working or training to obtain new skills.
Ms Schuster for the Department submitted that the Tribunal could only concern itself with Mr Ayshan's conditions as they were at the date of claim on 27 July 1998 or three months hence, as provided in subsection 100(3) of the Act. Thus, the Tribunal must confine itself to looking at the conditions in the claim form of neck, back, allergies, headaches and dizziness (T3, p51).
In relation to Mr Ayshan's qualification for Disability Support Pension, Ms Schuster submitted that Mr Ayshan satisfies subsection 94(1)(a) of the Act in that he has a physical, intellectual or psychiatric impairment.
The next eligibility criteria for the Disability Support Pension is whether or not, under subsection 94(1)(b) of the Act, Mr Ayshan has an impairment of 20 points or more under the Impairment Tables. Ms Schuster noted that the SSAT found that Mr Ayshan had a rating of 15 points from Table 20 in relation to his knee, back and shoulder pain which indicated moderate to severe symptoms which are more distressing but prevent very few everyday activities. The symptoms as rated under 15 points are mild to moderate in their impact on the ability to perform or persist with work-related tasks and/or attend work. Full-time work would still be possible under this rating. Ms Schuster submitted that the Department agreed with the rating of 15 points under Table 20. However, in relation to sinusitis, Ms Schuster submitted that this condition did not attract an impairment rating and therefore nil points should be assigned.
In relation to Mr Ayshan's condition of depression, this had only recently been treated and on 18 February 2000, Dr Weingarten had assessed that this was a temporary condition and, in any event, the depression was not part of the original claim. Therefore, no rating can be assigned. Further, in relation to the disabilities, Mr Ayshan experienced from his hand, heart and more recently reported conditions following the accident, Ms Schuster submitted that these could not be taken into consideration as part of the decision under review. While Mr Ayshan has provided further medical evidence from Dr Matter and Dr Attia, much of this would not be taken into account as it does not relate to claimed conditions and further, most recently, Dr Weingarten had had difficulty trying to examine and make a finding in relation to Mr Ayshan's range of movement, because of his marked voluntary guarding.
In relation to reports supplied by Dr Guirgis and Dr Ly, Ms Schuster relied on the opinion of Dr Rogers, Medical Adviser with Health Services Australia, who noted that Dr Guirgis' opinion was internally inconsistent and that he had not used the correct Impairment Tables, as was the case with Dr Ly who had relied on American tables to reach an assessment as to the level of disability.
As such, Ms Schuster contended that Mr Ayshan's conditions were appropriately assessed at 15 points under Table 20 and accordingly, as the rating was not at least 20 points as is required by subsection 94(1)(b) of the Act, Mr Ayshan fails in his claim for a Disability Support Pension.
In the event that the Tribunal considered that Mr Ayshan did meet the 20 points impairment rating, Ms Schuster turned to consider the qualification required under subsection 94(1)(c) which requires that applicants have a continuing inability to work. Referring to the definition of continuing inability to work as contained in subsection 94(2) of the Act, Ms Schuster submitted that only Mr Ayshan's impairments are able to be considered in relation to the impact they have on his inability to work. Thus, factors which are not related to the impairments must be excluded. Ms Schuster contended that Mr Ayshan's impairments do not of themselves alone prevent him from undertaking light full-time work within the next two years, citing the examples of work such as a gatekeeper or a console operator or a cashier, as opined by Dr Casolin. Further, Ms Schuster noted that while it is clear that Mr Ayshan would not be able to work as a plumber, he could be retrained to undertake these other duties.
In the Department's written submission, it was noted that the SSAT took into account evidence that Mr Ayshan was able to negotiate the stairs at the Museum Railway Station and sit on an aeroplane for two legs of a flight, each eight and ten hours respectively. Ms Schuster further referred the Tribunal to consider that the issue is not whether work such as is suggested would be actually available, but rather whether if Mr Ayshan's impairments by themselves were sufficient to prevent him from performing work. Ms Schuster submitted that on all the evidence, Mr Ayshan does not satisfy subsection 94(2)(a) of the Act, in that he could undertake work within the next two years. If, however, the Tribunal considered that subsection 94(2)(a) was satisfied, then the Tribunal would have to further consider whether or not the impairment was sufficient to prevent Mr Ayshan from undertaking educational or vocational training or on-the-job training within the next two years or whether such training would be unlikely to enable to Mr Ayshan to undertake any work within the next two years. In this regard, Ms Schuster submitted that Mr Ayshan was a 54 year old man at the time of the claim and he had demonstrated his flexibility in adapting to a new country and developing his skills as a plumber in this country. Ms Schuster contended that Mr Ayshan is capable to be re-trained to undertake suitable work. Although he has some difficulties when sitting and needs to be moving about, this was not consistent with the evidence of the SSAT that he was able to sit for eight hours at a time on an international flight and could walk for ten to 15 minutes. Accordingly, Ms Schuster submitted that Mr Ayshan's impairments of themselves are not sufficient to prevent him from undertaking educational, vocational or on-the-job training within the next two years.
In all the circumstances, Ms Schuster submitted that Mr Ayshan does not have a continuing inability as defined in subsection 94(2) of the Act. Therefore, Mr Ayshan does not satisfy all of the requirements of section 94 of the Act and, as such, does not qualify for a Disability Support Pension. In such circumstances, the decision of the SSAT should be affirmed, Ms Schuster submitted.
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.
Mr Ayshan was cooperative in the provision of his evidence and the Tribunal evidenced for itself what it considered to be Mr Ayshan's genuine experience of pain and discomfort. It is the Tribunal's view that the effect of the motor vehicle accident which occurred two days prior to the hearing, was still manifesting itself in acute symptoms and the Tribunal was surprised indeed that Mr Ayshan was able to attend the Tribunal at all. The Tribunal did not consider that the clear example of Mr Ayshan's pain was fabricated.
The Tribunal finds that since the time that Mr Ayshan made his claim for a Disability Support Pension, on the medical and his own evidence, it is clear that other conditions have manifested themselves. Quite apart from the injuries sustained as a result of the motor vehicle accident two days prior to the hearing, Mr Ayshan has, on the evidence available to the Tribunal, a number of other conditions which have been diagnosed and which are in various states of being treated, and are either of a permanent or temporary nature. In this regard, the Tribunal notes additional conditions including:

Cardiac problems
Depression
Hypertension
Reflux
Oesophagitis
Carpal tunnel syndrome
Left shoulder capsulitis

The Tribunal has obtained some guidance from Secretary, Department of Social Security v Goudge (1989) 17 ALD 415 in which the court concluded that decision makers can only look at the claimed conditions at the time of claim and three months hence. Accordingly, the Tribunal is of the view that it must confine its review to those conditions present at the time of the claim or in the three months following.
The Tribunal finds that in relation to the qualifying criteria of section 94 of the Act, Mr Ayshan satisfies subsection 94(1)(a) of the Act in that he had at the time a number of physical conditions, namely neck and back pain, severe allergies, headaches and dizziness.
The Tribunal next turned to consider whether or not Mr Ayshan meets subsection 94(1)(b) of the Act which requires that he have an impairment of 20 points or more under the Impairment Tables.
The Tribunal considered the level of pain experienced by Mr Ayshan at that time was consistent with the 15 points from Table 20 of the Impairment Tables. Table 20 is a table which deals with miscellaneous conditions including providing a rating for disabilities which have high pain components. Considering Table 20, the Tribunal concludes that the evidence provided in the medical and claim form at the time, in addition to Mr Ayshan's evidence related to his disabilities at that time is consistent with a total of 15 points for neck and back pain, and the headaches.
The Tribunal then turned to consider the condition of severe allergies. The Tribunal considered that this condition should be rated under Table 21 of the Impairment Tables which deals with intermittent conditions. Table 21 requires consideration of a number of sub-tables which look at the condition, the duration and the frequency of the symptoms. Accordingly, considering the evidence, particularly that of Dr Bass, Dr Matter and Mr Ayshan, the allergic sinusitis is not, as has been previously contended by the SSAT and by the Respondent, a temporary condition. Dr Bass was reporting the severity and chronic nature of this condition, contemporaneous with Mr Ayshan's claim. Accordingly, using Table 21.1, which deals with intermittent attack and severity, the Tribunal considers that the level is one. From Table 21.2, intermittent attack/duration, the Tribunal considers that the duration is prolonged. From Table 21.3, severity/grading code, a severity level of one, with a duration rating of prolonged provides a grading code of C. Turning finally to table 21.4, the assignment of the rating, the Tribunal considers that the frequency, that is the effective days per year, is 40+ and accordingly, a grading code of C with a 40+ frequency provides an impairment rating of 5 points.
The Tribunal considers that the combined impairment rating of 15 points from Table 20 and 5 points from Table 21 provides a combined impairment rating of 20 points. Hence, the Tribunal considers that Mr Ayshan satisfies subsection 94(1)(b) of the Act.
Finally, the Tribunal turns to consider the issue of whether Mr Ayshan has a continuing inability to work. The Tribunal notes that at the time of his claim, Mr Ayshan indicated that he thought he could work part-time within six to 12 months or full-time in two years (T5, p68) and Dr Matter opined that Mr Ayshan could work 20 hours per week within the next six months (T4, p62). On this evidence, the Tribunal considers that at the time of the claim, Mr Ayshan did not have a continuing inability to work and, therefore, does not satisfy subsection 94(1)(c) of the Act.
Accordingly, the Tribunal finds that Mr Ayshan does not satisfy section 94 as a whole and therefore, is not qualified to receive a Disability Support Pension in relation to his claim of 27 July 1998. In such circumstances, the decision of the SSAT must be affirmed.
The Tribunal has noted throughout the decision that evidence, both medical and from Mr Ayshan, that his claimed conditions have worsened and indeed he has been diagnosed with new conditions. Further, with the unfortunate accident experienced by Mr Ayshan on 17 April 2000, the Tribunal considers that Mr Ayshan should consider making another claim for Disability Support Pension so that all of his disabilities can be assessed up to date and a determination made as to his inability to work. The Tribunal makes this recommendation also noting that Dr Weingarten, in her report of 18 February 2000, recommended that Mr Ayshan consult a rheumatologist to assess his conditions up to date. This recommendation is obviously very pertinent, particularly given Mr Ayshan's most recent injuries.
In conclusion and for the reasons set out above based on all the evidence, under section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.
I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of Ms S Bullock, Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing  19 April 2000
Date of Decision  4 August 2000
Representative for the Applicant  Self-represented
Representative for the Respondent  Ms H Schuster, Departmental Advocate