Bogatinoski and Department of Family and Community Services

DECISION AND REASONS FOR DECISION [2001] AATA 975

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/37

GENERAL ADMINSTRATIVE DIVISION        )
           Re      LUBEN BOGATINOSKI
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Ms N Bell, Member

Date30 November 2001
PlaceSydney

Decision The decision under review is set aside and in substitution therefore the Tribunal decides that the Applicant satisfies the requirements in subsections 94(1)(a), (b) and (c) of the Social Security Act 1991 and has done so since the date of his claim for disability support pension.

[sgd] Ms N Bell
Member
CATCHWORDS
Social Security – disability support pension - continuing disability - whether Applicant has impairment rating of 20 points or more - whether Applicant has incapacity to work- educational, vocational, on-the-job training - headaches – neck pain – lower back pain – tinnitus – hearing loss – depression

Social Security Act 1991 – section 94, Schedule 1B Impairment Tables

Secretary Department of Social Security v Pusnjak (1999) 56 ALD 444

REASONS FOR DECISION

Ms N Bell, Member

This is an application for review of the decision of the Social Security Appeals Tribunal ("SSAT") dated 10 July 2000. This decision affirmed both the decision of a Centrelink delegate of the Secretary of the Department of Family and Community Services ('the Respondent") dated 2 August 1999, and the decision of an authorised review officer dated 6 December 2000 to reject Mr Bogatinoski's ("the Applicant") claim for disability support pension ("DSP").
The Applicant was represented by Mr C Colborne of Counsel. The Respondent was represented by Mr Lozynsky of Centrelink. The Applicant gave oral evidence to the Tribunal as did Drs Dinnen and Samad.
The following documents were taken in as evidence:
Exhibit           Description    Date
TD1 T-documents pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
A1      Report of Dr A Dinnen       14 June 2001
A2      Report of Dr Salu Dean     12 April 2001
A3      Report of Dr Salu Dean     11 February 1998
A4      Applicant's Statement of Facts and Contentions          10 July 2001
A5      Report of Dr Fathy Ghabrial          19 April 1996
A6      Report of Psychologist Samina Whale    11 September 1997
A7      Letter from Health Service Australia to Applicant         14 March 2001
R1      Respondent's Statement of Facts and Contentions     18 July 2001
R2      Report of Dr Michael Gliksman     25 April 2001
R3      Request for Specialist Opinion & Medical Assessment Report          9 March 2001
R4      Report of Dr David Keen    2 May 2001
R5      Medical Review and Treating Doctor's Report    3 October 2000

background

The Applicant claimed DSP on 16 June 1999. He was examined by medical advisers of Health Services Australia on a number of occasions and, following the Respondent's original decision to reject his claim for DSP, he was given an opportunity to provide further medical evidence and to have the decision reviewed.
The Applicant is a 42-year-old man who arrived in Australia from Macedonia in December 1984.
issues
The issues to be considered by the Tribunal in this application are those raised by subsection 94(1) of the Social Security Act 1991 ("the Act"). Subsection 94(1) provides:
"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;
(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.
The term "continuing inability to work" is defined in subsections 94(2),(3), (4) and (5) of the Act, as 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
(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.
Note: For work see subsection (5).
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."
It is common ground between the parties that the Applicant suffers from a psychiatric and a physical impairment. There is therefore no dispute that the Applicant satisfies the requirement in subsection 94(1)(a) of the Act.
It remains, however, that, as required by subsection 94(1)(b) of the Act, the Tribunal must consider whether the Applicant has an impairment of 20 points or more under the Impairment Tables in Schedule 1B to the Act ("the impairment tables") and if so, whether he has a "continuing inability to work" as required by subsection 94(1)(c)(i) of the Act.
applicant's evidence
The Applicant told the Tribunal that In Macedonia he studied Agriculture for two years after completing Year 12 of secondary school, and then undertook compulsory military service. He arrived in Melbourne in December 1984, having never been employed before, and commenced work as a packer in a chicken factory where he remained for two years. He then came to Sydney and commenced to work at Bush's Pet Food as a machine operator. He continued to work there until he had an accident at work in January 1994. After that he remained at home for a few months and then returned to work for only one or two hours per day for several months, after which his employment was terminated.
The Applicant told the Tribunal that he has not worked since 1994 and has relied on sickness benefit from Centrelink since then. The only training activity he has undertaken has been to attend an English language course for two days per week, from 6pm to 9pm, since 1998. This is normally a two years course, however, the Applicant has been undertaking it for almost four years. He said that he found it very difficult because of his problems with concentration and his poor memory, but he understands that it is to his advantage to learn to read and write English. The Applicant said that he had no such difficulty with concentration or memory when he attended university in Macedonia.
The Applicant said that he had not returned to work since leaving Bush's Pet Food because he has been unable to find work of one to two hours per day. He said that after one to two hours he requires some 30 minutes rest because of the pain, and becomes very anxious and nervous, and it all becomes "too much".
The Applicant told the Tribunal that since his accident he has been seeing his local doctor, Dr Matalani, on average about once per month. He sees Dr Mahoney, orthopaedic surgeon, approximately every three months. He sees Dr Samad, his new treating psychiatrist, approximately every three weeks, having commenced seeing him three months ago. He sees Dr Salu Dean, psychologist, approximately once a month.
The Applicant told the Tribunal that the following conditions prevent him from working:

headaches which are almost continuous and which are only temporarily relieved by medication;
his neck which is stiff and numb;
pain between his shoulder blades;
pain in his right arm and hand;
pain in his lower back; and
pain in his left leg when trying to sleep.

The Applicant said that he sleeps very badly and often wakes up due to terrible dreams.
He said that he does not drive because of all of the medication he takes and because he does not feel his concentration is adequate to make him a safe driver.
The Applicant told the Tribunal that he lives alone, having previously lived with a female partner. He said that it became unbearable for her to live with him because, she said, he needed a nurse and not a wife. He said that they separated in 1997 and although she returned for a few months after his compensation case was settled, she considered that he had not changed and left again. The Applicant said that he was very disappointed with the outcome of his compensation case in that he did not receive much money ($40,000) and this was followed by problems with Centrelink.
The Applicant said that he has difficulty with his hearing, particularly when he has a headache. He said that he has not purchased hearing aids, as recommended to him, because they cost approximately $2,000. He said that he has buzzing in his ears which is like hearing a sound or ringing from some unidentified place. He said that the buzzing in his ears is especially loud when he has a headache, and it is particularly difficult for him if someone speaks to him in a quiet voice. He said that it depresses him when it happens and his ears are blocked. In answer to a question from the Tribunal he said that he tends to withdraw from the conversation because of his difficulty with hearing and ringing in his ears.
In cross-examination the Applicant conceded that antidepressant medications have helped him and improved his condition slightly; but that he is still deeply affected by his depression. The Applicant was referred to document T28, his claim for DSP and in particular to page 127, where the form asks him to list any illnesses/disabilities that he has. The form shows that the following conditions are listed: "headache, neck pain, back pain and depression." The Applicant explained that that was the best he was able to do with his English skills. He stated that he completed the form at home, alone, with no assistance from an interpreter. The Applicant said that he did not include his hearing loss and tinnitus on the claim form because he didn't know what information he had to write on it, and an officer from Centrelink had told him that Centrelink had all of his reports and all of his information. He said that he applied for DSP at Centrelink's suggestion.
In answer to a question in cross-examination the Applicant said that he was referred to Dr Ghabrial, ear, nose and throat specialist, by his local doctor, Dr Matalani. It was brought to the Applicant's attention that when Dr Matalani completed T29, the Treating Doctor's Report, he failed to mention the Applicant's hearing loss. The Applicant replied that he did not discuss this form with Dr Matalani and trusted that the doctor would know what his problems were.
The Applicant said that he takes daily medication for depression. He said the ways in which his depression affects him include: being made nervous and anxious by small problems; being unable to control his temper and being extremely disappointed with his life; feeling alone and isolated; being unable to sleep at night; and feeling, because of the pain, that he will "explode". He said that that he ended up in a hospital twice because he was unable to calm himself down.
The Applicant described an average day as "a misery". He said he goes to the park, does a little shopping, or visits a friend if he can. He said his home is very small and does not require much cleaning, and he does not cook often. He said that when he shops he only buys small things. He said that he has no difficulty with public transport, but has no involvement with any social activities.
When asked by the Respondent's representative if he wants to work, the Applicant asked which employer would have him. He said that he does what he can, for example, his English language course, but would only be able to work if an employer was prepared to let him rest after one to two hours. He maintained he would not be able to work full time.
dr samad
Dr Samad gave oral evidence to the Tribunal as the Applicant's current treating psychiatrist. Dr Samad said that he first treated the Applicant on 30 August 2001 on referral by the Applicant's treating general practitioner, Dr Matalani. He has also seen the Applicant on 13 September 2001 and 4 October 2001, and has a further appointment with him in two weeks.
Dr Samad diagnosed the Applicant's conditions as chronic major depressive disorder with acute episodes and adjustment disorder. Dr Samad said that the Applicant has suffered these conditions since 1994 and is unfit for any kind of work, being barely able to survive in day to day living. He assessed the Applicant's psychiatric condition at 20 points under the impairment tables.
In cross-examination Dr Samad agreed that he had not seen the Applicant before 30 August 2001 but stated that he knew he had depression before that time, based on the history given to him and on his own observations of the Applicant. He said that he had not been provided with any reports made by other psychiatrists. He described the Applicant's symptoms as follows:
"inability to cope, worsening physical symptoms, lack of concentration, poor memory, no sexual desire, not looking forward to anything, waking up anxious and worrying, feeling a pressure on his head, becoming angry over small things, feeling that people are against him."
He also said that the Applicant has frequent anxiety attacks and has nightmares. He said there has been some suicidal ideation on the part of the Applicant and that he becomes confused at times. He expressed the view that there is no possibility of the Applicant having exaggerated his condition, and that his report has been quite consistent. He restated his opinion that the Applicant is not fit for any work at all.
In answer to a question from the Tribunal, Dr Samad said that the Applicant's tinnitus becomes worse, the more anxious and depressed he is. In this way, he said, the Applicant's depression and his tinnitus create a vicious cycle.
Dr Samad also stated that the Applicant's depression would prevent re-training, particularly given the Applicant's limited concentration and poor motivation.
dr dinnen
Dr Dinnen described the Applicant as having a chronic, hopeless, despairing, corrosive, depressive condition. He said he had no argument with the proposition that the Applicant has chronic depressive illness with some reactive element and emphasised that diagnostic classification is dysthymic disorder. He said that in matters of this kind there could be differences in the opinions of psychiatrists as opposed to non-psychiatric specialists, practitioners or non-medical professionals.
Dr Dinnen said that the particular impact of the Applicant's condition on his cognitive ability and his ability to work includes
"his memory and concentration being poor; his attitudes and expectations being inappropriate and affected by general level of interest; eg, if he is feeling hopeless then his expectations are lowered and his attitude follows; an inability to cope with minor problems, and indecisiveness that creates crises; and inability to sit still and concentrate on something that is not of immediate interest to him."
In answer to the question from the Tribunal about the relationship between the Applicant's hearing loss and tinnitus and his psychiatric condition, Dr Dinnen said that the Applicant's tinnitus and hearing loss would contribute to an increased sense of isolation and alienation, and would increase the Applicant's paranoid attitude.
In cross-examination Dr Dinnen was shown the report of Dr Roberts of Health Services Australia at T31. In that report Dr Roberts stated :
"…At examination he looked well and was in no distress. He was an alert and cooperative historian who understood English quite well; an interpreter was present for the examination. His mentation was normal with good memory and concentration; he answered questions appropriately. His affect was neutral. There was no clinical evidence of major depression such as undue agitation or psychomotor retardation. He was not thought disordered, delusional, paranoid or suicidal."
Dr Dinnen stated that he did not accept Dr Roberts' finding. He said the Applicant has been depressed since 1994 and Dr Roberts appears not to see this, notwithstanding that she notes earlier in her report that the Applicant has been seeing a psychiatrist and taking medication for that condition. Dr Dinnen said that a mental state examination takes great skill and the fact that Dr Roberts has not found evidence of depression does not mean that it is not there. He likened Dr Roberts's examination to a psychiatrist conducting an orthopaedic examination.
Dr Dinnen said that the history given by the patient is very important for the purposes of the diagnosis. He said that diagnosis requires great skill and care and is dependent on observation such as the way a person sits and their facial expression.
Dr Dinnen was referred to the report of Michael Gliksman (Exhibit R2), an occupational physician, who concluded that there is clear clinical evidence of substantial functional overlay. Dr Dinnen stated that he is "absolutely sure" that the Applicant is not malingering. He said that the term "functional overlay" is very weak and unhelpful.
Dr Dinnen stated that he had sufficient information from the medical reports provided to him, and from seeing the Applicant for one hour, to establish that he has a significant psychiatric condition and that it attracts 20 points under the relevant impairment tables. He noted that the symptoms listed in table 6 of the impairment tables which attract a rating of 20 points are examples only and that possible symptoms are not limited to those mentioned in the table. Dr Dinnen stated that he considered the Applicant to more closely approximate the degree of severity of a condition described in relation to a rating of 30 points than he did to a rating of ten points.
Finally, Dr Dinnen emphasised that he considers the Applicant is unable to undertake even light duties and certainly cannot undertake retraining.
dr fathy ghabrial
Dr Ghabrial's report of 19 April 1996 (Exhibit A5) provides diagnoses of binaural hearing loss of 58 per cent and of bilateral tinnitus which is a permanent condition. Dr Ghabrial also diagnosed giddy attacks as a permanent disability which prevents the Applicant from performing certain duties which require a delicate balance. He concluded that the Applicant requires hearing aids, the cost of which in 1996 was $2,000. Dr Ghabrial also concluded that with such a high level of hearing loss the Applicant was well advised not to work or be exposed to noise in the future.
submissions

Mr Colborne, for the Applicant, submitted that the Applicant satisfies the requirements in subsections 94 (1)(a) and (b) by virtue of his psychiatric condition and also his hearing loss. He referred the Tribunal to the diagnoses of Drs Dinnen and Samad, each of whom assessed the Applicant as attracting 20 points under table 6 of the impairment tables, in respect of his psychiatric conditions. Mr Colborne also referred the Tribunal to the report of Dr Ghabrial which assesses a percentage loss of binaural hearing in excess of that which attracts a 20 point impairment rating under table 12 of the impairment tables.
In relation to the requirement in subsection 94 (1)(c)(i) of the Act that the Applicant have a continuing inability to work, Mr Colborne referred the Tribunal to the opinions of Drs Ali and Samad, as treating psychiatrists, and Dr Dinnen, as a consulting psychiatrist, that the Applicant's psychiatric condition prevents him from working or retraining. In particular, Mr Colborne referred to Dr Dinnen's evidence in relation to Dr Roberts' report and Dr Gliksman's failure to address the issue of the Applicant's psychiatric condition in reaching his conclusion regarding functional overlay.
Further, Mr Colborne referred to the breakdown of the Applicant's relationship and his long period out of the workforce as indicators of his inability to work.
Mr Lozynsky for the Respondent submitted that, in relation to the requirement in subsection 94(1)(b) of the Act, only evidence available at the time of the Applicant's claim for DSP, that is, at June 1999, should be taken into account in assessing his eligibility for that pension. He submitted that neither Dr Dinnen nor Dr Samad was in a position to comment on the Applicant's condition at the time of his claim. He referred the Tribunal to the reports of various Health Services Australia doctors at the time of the Applicant's claim, including that of Dr Roberts, and noted that those reports assessed the Applicant as being capable of light duties work at that time. Mr Lozynsky also referred the Tribunal to the report of Dr Dean, dated 12 April 2000 (Exhibit A2), which gave the opinion that the Applicant was not in a position to rejoin the work force at his normal pre-injury work duties.
In relation to retraining, Mr Lozynsky noted the Applicant's attendance at the TAFE course, albeit for a total of four hours per week, and submitted that the Applicant would have been able to retrain at the time of his claim. In this respect he referred the Tribunal to the report of Samina Whale, clinical psychologist, dated 11 September 1997 (Exhibit A6), which stated an opinion that, after reasonable medical and therapeutic intervention, the Applicant was capable of being trained in an unskilled or semi-skilled vocation.
Mr Lozynsky submitted that the evidence available at the time of the Applicant's claim is overwhelmingly to the effect that the Applicant could work or be retrained. He also submitted that non-medical factors should not be taken into account by the Tribunal.
In reply, Mr Colborne agreed that the period that must be taken into account by the Tribunal is confined to the period of the claim and three months thereafter. However, he submitted that Drs Dinnen and Samad had access to the documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975 ("AAT Act") and were, in accordance with their skills and experience, able to deduce from their later examination of the Applicant, his condition at the time of his claim. In addition Mr Colborne noted that Dr Matalani, the Applicant's treating general practitioner, had been saying since 1995 that the Applicant may return to work in six to twelve months, amounting to some six years of incapacity to work. Mr Colborne also submitted that the evidence is that the Applicant is not coping with his English language course, having been undertaking the course for almost four years when the course is of only two years duration. He submitted that the decision of Federal Court in Secretary Department of Social Security v Pusnjak (1999) 56 ALD 444 makes it clear that reference to the personal circumstances of a claimant for DSP by the Tribunal is appropriate.
consideration
The evidence presented to the Tribunal concerned mainly the Applicant's psychiatric condition and his hearing loss and tinnitus. The Applicant psychiatric conditions had been assessed by Centrelink and by SSAT at nil. No assessment had been made of the Applicant's hearing loss.
While the Applicant's own evidence to the Tribunal confirmed his claims of pain in his neck and back, headaches, dizziness and pain in his right hand and left leg, no other evidence, apart from that relating to his psychiatric condition and his hearing loss and tinnitus, was presented to the Tribunal.
If, as contended on the Applicant's behalf, his psychiatric and hearing impairments attract ratings of 20 points or more and these conditions render the Applicant, on a continuing basis, unable to work, it would not be necessary for the Tribunal to consider the Applicant's other conditions.
At the time of the Applicant's claim in 1999 he had been under the treatment of Dr Ali, psychiatrist, since 1994. Dr Ali provided, in relation to the Applicant's claim, a treating doctor's report, which stated that the Applicant is suffering from major depressive syndrome and chronic pain syndrome and was unable to perform any work for more than two years (T30). Dr Matalani also provided the treating doctor's report which deals with the Applicant's other conditions and also noted depression, but indicated inability to work within six to twelve months (T29).
Dr Roberts, Health Services Australia adviser, assessed 10 points for chronic pain syndrome and nil in respect of the other conditions, including depression (T31). Following provision by the Applicant of medical report from Dr Mahoney, dealing with his neck and back pain, Dr Roberts reviewed her earlier assessment and confirmed it (T39).
An occupational physician, Dr Gliksman, assessed no impairment and reported substantial functional overlay on the part of the Applicant.
The Tribunal notes that Dr Ali had reported in 1997 (Exhibit A4) that the Applicant experienced loss of confidence, loss of drive and motivation, and a sense of helplessness. The report also details the loss of the Applicant's significant relationship and assesses the Applicant as having a loss of function in respect of his psychiatric condition apart from his impairment arising from orthopaedic conditions and his hearing loss. A further report from Dr Ali noted in February 1998 (Exhibit A4) reports no change in his conditions.
It was submitted by the Respondent that the later evidence of Drs Samad and Dinnen can have no bearing on the Applicant's conditions at the time of his claim for his DSP. That evidence, and the assessments contained in it, are, according to those doctors, based on the history obtained from the Applicant and in some respects on documents provided to them, including the documents lodged under section 37 of the AAT Act. Their assessment also followed examinations of the Applicant and, in the case of Dr Samad, a number of consultations with him. The Tribunal is satisfied that Drs Dinnen and Samad are, given their experience and skills as psychiatrists, able to assess the Applicant's condition as it was some two years previously. The Tribunal accepts their evidence that their assessments are based on the history provided to them by the Applicant, their observations of him in examination, and the application to that information of their skills and their experience. In the case of Dr Dinnen he also had the benefit of documentation, including the T-documents provided to him by the Applicant's legal representatives. The Tribunal was also influenced in its conclusion by the fact that, at the time of the Applicant's claim for DSP, his psychiatric condition had been under treatment for some five years with Dr Ali. The Tribunal therefore considers that it is not an impediment to its acceptance of the evidence of Drs Dinnen and Samad that they did not examine the Applicant at the time of his claim.
The Tribunal prefers the evidence and the assessment of Drs Ali, Samad and Dinnen to that of Dr Roberts who is not psychiatrist. Similarly the Tribunal prefers the evidence of Drs Ali, Samad and Dinnen over that of Dr Gliksman who is neither a psychiatrist nor appears in his report to have conducted an assessment of the Applicant's psychiatric state. The Tribunal therefore finds that the Applicant suffers from a psychiatric condition which is diagnosed by Drs Ali, Dinnen and Samad as variously chronic pain syndrome, chronic major depressive disorder and adjustment disorder. On the basis of the Applicant's evidence and that of his treating doctors and Dr Dinnen his symptoms include lack of concentration, poor memory, inability to cope, anxiety, anger disproportionate to the incident, feelings of paranoia, confusion, indecisiveness and low motivation and expectations.
The Tribunal accepts the Applicant's evidence that he lost his relationship and now he lives alone with no family or social supports. The Tribunal also accepts the evidence of Drs Dinnen and Samad that these symptoms interfere with, or prevent, the Applicant from working and retraining. For the reasons outlined above the Tribunal is satisfied that these symptoms were suffered by the Applicant at the time he applied for DSP. It is not disputed that the Applicant is being treated with medication and was so treated at the relevant time.
In relation to the Applicant's hearing loss the Tribunal accepts the uncontroverted evidence of Dr Ghabrial (Exhibit A5) that the Applicant has binaural hearing loss of 58 per cent and tinnitus. The Tribunal also accept the evidence of Drs Dinnen and Samad that the Applicant's hearing loss and tinnitus adds to the Applicant's sense of alienation and isolation, and that his anxiety and depression in turn exacerbate his tinnitus. Table 6 of the impairment tables concerns psychiatric conditions and provides a range of descriptions of symptoms attracting a particular point rating. The Tribunal has found that the Applicant has a psychiatric disorder, that he has been treated with medication, that he suffers symptoms noted above, and that those symptoms interfere with his ability to work. The following descriptions of symptoms in Table 6 attract a rating of 20 points :
TABLE 6. PSYCHIATRIC IMPAIRMENT
Rating Criteria
TWENTYPsychiatric illness or disorder with either serious symptomatology OR impairment 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.

The Tribunal therefore considers that the Applicant's psychiatric condition attracts a rating of 20 points.

The Tribunal has found that the Applicant has binaural hearing loss of 58 per cent. Under Table 12 of the Impairment Tables this figure attracts an impairment rating of 20 points. Dr Ghabrial's assessment of the Applicant's hearing loss was conducted in 1996 and his hearing loss was assessed as permanent. There can be no question of the application of this assessment as at the date of the Applicant's claim for Disability Support Pension.
It follows that the Applicant, having an impairment rating under the impairment tables of at least 20 points, satisfies the requirement in subsection 94(1)(b).
Section 94(2)(a) requires that the impairment suffered by the Applicant is of itself sufficient to prevent him from doing any work within the next two years. The Tribunal has preferred the evidence of Drs Dinnen and Samad over that of Dr Roberts. Drs Dinnen and Samad were both of the opinion that the Applicant's psychiatric condition would prevent him from doing any work, either of a light duty nature or his previous work. Dr Dinnen, in particular, gave evidence of the way in which the Applicant's psychiatric condition impacts adversely on his ability to work through poor memory and concentration, an attitude of helplessness, an inability to cope with minor problems, and indecisiveness that gives rise to crises. Both Dr Dinnen and Dr Samad gave evidence of the exacerbation of these conditions by the Applicant's tinnitus and the effect on his tinnitus of his psychiatric condition.
The Tribunal notes that, in his various treating doctor's reports over some five years, Dr Matalani has indicated that the Applicant would be able to return to work in 6 to 12 months. The long period during which Dr Matalani gave this indication tends to undermine it. The Tribunal also preferred the opinion of Drs Dinnen and Samad over that of Dr Gliksman, who made no assessment of the effect of the Applicant's psychiatric condition nor his hearing loss or tinnitus.
On the basis of this evidence the Tribunal concludes that the Applicant's psychiatric impairment, together with his hearing loss and tinnitus, is sufficient to prevent him doing any work within next two years. The Tribunal also considers that the impairments are alone sufficient to prevent the Applicant from undertaking educational or vocational or on the job training during the next two years. In this respect the Tribunal also has regard to a letter from Mr John Nicholls of Padstow TAFE, dated 26 November 1999 (T45). In that letter Mr Nicholls, the Applicant's class teacher in the English literacy course, described the Applicant's difficulty with concentration and understanding of texts. The Tribunal also notes the Applicant's evidence that, notwithstanding that this is a two year course of four hours per week, the Applicant is now in his fourth year of undertaking the course. The Tribunal is therefore of the opinion that the Applicant's impairments are sufficient, in accordance with section 94(2)(b), to prevent him from undertaking the educational training. On this basis the Applicant has a "continuing inability to work" within the meaning of section 94(1)(c).
It follows that the Applicant satisfies the requirements in subsections 94(1)(a) (b) and (c) of the Act and has done so since the day of his claim for Disability Support Pension.
determination
The decision under review is set aside and in substitution therefore the Tribunal decides that the Applicant satisfies the requirements in subsections 94(1)(a),(b) and (c) of the Social Security Act 1991 and has done so since the date of his claim for disability support pension.

I certify that the 64 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Member
Signed: Raina Savage
           .....................................................................................
  Associate
Date/s of Hearing  12 October 2001
Date of Decision  30 November 2001
Counsel for the Applicant        Mr C Colborne
Solicitor for the Respondent    Mr G Lozynsky

[2001] AATA 975

30 November 2001

Key Legal Topics

Areas of Law

Social Security Law

Legal Concepts

Continuing Disability

Impairment Rating

Incapacity to Work