Celal Sayan v Secretary, Department of Family and Community Services

[2001] AATA 950

DECISION AND REASONS FOR DECISION [2001]AATA 950

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2001/373

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

DECISION

Tribunal       Senior Member M D Allen Dr J D Campbell, Member

Date19 November 2001

PlaceSydney

Decision      The decision under review is set aside and the Tribunal substitutes in lieu thereof its decision, namely that the Applicant, Celal Sayan, is entitled to disability support pension as and from 2 February 2000.     

(Sgd)     M D Allen  ..............................................
  Presiding Member
CATCHWORDS
SOCIAL SECURITY – Application for disability support pension. As shoulder impairment determined to be present at time of application that incapacity could be taken into account by Tribunal although not previously considered. Psychiatric illness not taken into account because at date of application and 13 weeks thereafter condition not stabilised.
Social Security Act 1991 – s94 Schedule 1B
Social Security (Administration) Act 1999 - Schedule 2

Secretary, Department of Social Security v Goudge 17 ALD 415

REASONS FOR DECISION

19 November 2001    Senior Member M D Allen  Dr J D Campbell, Member   

1. By application lodged the 22 March 2001 the Applicant sought review of a decision by a Social Security Appeals Tribunal ("SSAT") made 19 February 2001 affirming a prior determination of 14 March 2000 rejecting his claim for a disability support pension ("DSP").

2. Section 94 of the Social Security Act 1991 (as amended) sets out the criteria for the grant of DSP namely:

   " 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;
   (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.

   Person not qualified in certain circumstances
   94(6) A person is not qualified for a disability support pension on the basis of a continuing inability to work if the person brought about the inability with a view to obtaining a disability support pension or a sickness allowance or with a view to obtaining an exemption, because of the person's incapacity, from the requirement to satisfy the activity test for the purposes of job search allowance, newstart allowance, youth training allowance, youth allowance or austudy payment."

3. A difficulty that arose in this matter was as to the effect of the Social Security (Administration) Act 1999. There appears to be no reference in the transitional provisions of that Act to a matter where as at the commencement day an officer of the Respondent had made a decision but no application to the Secretary pursuant to section 129 of the said Administration Act had yet been made.

4. What does seem clear is that clause 4(1) of Schedule 2 of the Social Security (Administration) Act 1999 states:

   "(1) If:

(a)  a person (other than a detained person) makes a claim for a relevant social security payment; and

(b)  the person is not, on the day on which the claim is made, qualified for the payment; and

(c)  assuming the person does not sooner die, the person will, because of the passage of time or the  occurrence of an event become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and

(d)  the person becomes so qualified within that period; the claim is taken to be made on the first day on which the person is qualified for the social security payment."

Given the interpretation of the former s135 TA(1A) of the Social Security Act 1947 in Secretary, Department of Social Security v Goudge 17 ALD 415, that persons who do not qualify for disability support pension as at the day of application for that pension or within a period of 13 weeks thereafter must make a new application even if after the period of 13 weeks their condition deteriorates to the extent that they then qualify.

1. In this matter it is however unnecessary to concentrate upon this point as we find that the Applicant on the day he applied for DSP met the requirements of paragraph 94(1)(b) of the Social Security Act 1991 due to impairment from orthopaedic disabilities.

2. On 23 October 2001 the said application for review came on for hearing before this Tribunal.   At that hearing the following documents were taken in as exhibits and marked as follows:
   Exhibit No       Description      Date      
   T1-T20           Documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
   A1      Applicant's Statement of Facts and Contentions          7 August 2001         
   A2      Report of Dr Lewis-Enright 17 July 2001
   A3      Report of Dr Chaudhary     7 August 2001         
   R1      Respondent's Statement of Facts and Contentions     13 August 2001       
   R2      Report of Dr Kamenyitzky  10 August 2001       

1. The Applicant gave evidence that he was born in Turkey on 15 October 1944.  He had six years of formal education and then worked in a brush making factory before undertaking two years compulsory military service.

2. After completing his military service the Applicant undertook an apprenticeship and worked as a welder for four years.  In 1973 he started a plastics workshop.  That business developed to the stage where the Applicant was employing three or four employees but ceased in 1979 when the machinery was destroyed.

3. The Applicant stated that the plastics business was destroyed as he had involved himself in left-wing political activity.  In addition he was "oppressed" as being a Kurd.  He was on occasions arrested by the authorities and beaten.

4. After the destruction of the plastics business the Applicant removed himself and his family from Istanbul to Izmet where he opened a cake shop.  He employed a person as a pastry cook while he attended to the sales.  Ultimately, this business also ceased as the Applicant was still being harassed by the civil authorities.  He then supported himself and his family by doing odd jobs until he obtained work in Libya as a kitchen-hand in camps set up by oil prospecting companies.

5. Although initially employed as kitchen-hand, the Applicant was trained as a cook while working in Libya.  He states that as a Kurd he was also subjected to harassment by Libyan authorities.

6. The Applicant's brother had come to Australia in 1975.  In 1996 the Applicant obtained a tourist visa to Australia and when in Australia applied for refugee status and in 1998 was granted a protection visa.  Since that time he has been joined by his wife and one of his children, although we note from the report of Dr Lewis-Enright that his wife has returned to Turkey.  We understand from the Applicant's evidence that his wife has now returned to Australia. 

7. After arriving in Australia that Applicant worked in his brother's Kebab shop until 25 January 2000 when he stopped work because of back pain.  On 2 February 2000 he applied for a Disability Support Pension.

8. Questioned as to his ability to read and speak English the Applicant stated that he had been attending English classes but could only speak a little English but not read English.  He stated "I can write English but I do not know what I am writing".  He has however a driving licence.

9. Currently the Applicant does not undertake any activities.  He states he can walk around the yard of his dwelling and water the garden.  Sometimes he attends the Kurdish association.  He sees a psychiatrist, Dr Chaudhary every month and whenever he bends his back it is painful.  He cannot walk more than one kilometre and experiences pain in his back every day and both his shoulders are constantly aching.

10. Document T6 is a medical report prepared by the Applicant's general practitioner to accompany the application for disability support pension.  In that report, the general practitioner Dr Oner states that at the date of the report namely 1 February 2000, the Applicant suffered from the following conditions namely:

• Cervical Spondylosis

• Lumbar-Sacral Osteoarthritis

• Hypertension

• Anxiety

• Diabetes Mellitus.

1. The Applicant was examined by a medical practitioner employed by Health Services Australia on 13 March 2000.  A summary of this examination is at document T7 and reads inter alia:

   "1. Neck pain – … degenerative changes. This condition is permanent, and prevents repetitive head turning, as well as causing some concentration difficulty.
   2. Lower back pain – … On examination, his lumbar spine mobility was within normal limits.
   3. Non-insulin dependent diabetes mellitus – … adequately controlled by oral medication…
   4. Hypertension – … condition is controlled by medication…
   5.Anxiety/depression – … On examination, he did not have the clinical features of a major depression. This condition is considered temporary, due to its recent onset, and the fact that treatment is incomplete. …

   Suitable occupations include light process work."

2. In our opinion the conditions of diabetes mellitus and hypertension do not need to be discussed further.  Clause 5 in the Introduction to Schedule 1B to the Social Security Act 1991 (the Tables for the assessment of work related impairment for disability support pension) states inter alia that for the assessment of a condition the said condition must be considered as permanent, that is to say it must have been diagnosed, treated and stabilised. Dr Lewis-Enright assessed the Applicant's diabetes mellitus as not stabilised and in his opinion it required more aggressive treatment then that currently given by the Applicant's general practitioner. The Applicant's hypertension on the other hand was regarded as controlled by the medical practitioner at Health Services Australia. Again Dr Lewis-Enright in his oral evidence stated that he did not have enough evidence to allow a rating for either diabetes mellitus or hypertension.

3. The major issues in this matter were the Applicant's orthopaedic disabilities and his psychiatric state.

4. As stated above after examination of the Applicant a medical practitioner at Health Services Australia regarded the Applicant as having a normal range of movements in his lumbar spine.  A file review by another medical practitioner of Health Services Australia on 16 May 2000 confirmed this assessment.

5. Document T12 is a report by Dr Habib, Surgeon.  In that report he states inter alia:

   "Neck: … movements of the neck were moderately limited to about 50% in all directions. … The shoulder examination was unremarkable except that extreme abduction caused increased neck pain.
   Back: … Extension was only 1/3rd of the normal range. On forward flexion the hands reached mid shin. Lateral flexion and rotation were also painful."

Under the heading of Imagery Dr Habib stated:

"X-rays of the cervical spine dated 27/01/2000 was reported as cervical spondylosis with narrowing of disc spaces at C3/4, C4/5, C5/6 and C6/7 (report enclosed).
X-rays of the lumbar spine dated 27/01/00 reported as "degenerative disc disease affecting the L5/S1 (report enclosed).
CT scan of the lumbar spine dated 26/04/00 confirmed the presence of degenerative disease affecting the L5/S1 discs.
Examination of the knees showed Mr. Sayan to suffer from patello-femoral Arthralgia."

1. The Applicant was examined by Dr Lewis-Enright, Consultant Occupational Physician, on 29 May 2001.  After taking a detailed history, examining the Applicant and reviewing the imagery Dr Lewis-Enright summarised his opinion by stating:

   "A middle aged male who has some reduction in range of movement of the left shoulder and who is depressed.  There is also reduced range of movement in the thoraco-lumbar and cervical spines. There may well be a post-traumatic stress disorder present and this requires further elucidation."

2. He assessed the Applicant's degree of disability as being calculated in accordance with the appropriate Tables as 5 for the cervical spine and 5 for a reduced abduction and internal rotation of his left shoulder and either 15 or 10 for the lumbar spine depending on whether Table 20 or Table 5.2 was used.

3. Dr Lewis-Enright assessed the Applicant's thoracolumbar spine pursuant to Table 20 on the basis that as well as degenerative disease, the Applicant suffered ongoing pain for which Table 5.2 failed to make adequate provision.  Such a course is permitted under Schedule 1B as paragraph 8 of the introduction to Schedule 1B reads inter alia:

   "In general, pain or fatigue should be assessed in terms of the underlying medical condition which causes it. For example, Table 5 should be used for spinal pathology. However, where the medical officer is of the opinion that the Tables underestimate the level of disability because of the presence of chronic entrenched pain, Table 20 can be used to assign a rating instead of the Table(s) that otherwise would be used to assess the loss of function to which the pain relates.  Medically officers must use their clinical judgement and be convinced that pain or fatigue is a significant factor contributing towards the person's overall functional impairment. Medical reports and the person's history should consistently indicate the presence of chronic entrenched pain or fatigue."

1. In this matter we are not satisfied that the Applicant does have chronic and entrenched pain.  At document T6 the Applicant's general practitioner refers to difficulty in heavy lifting and with prolonged sitting or standing but does not refer to chronic pain.  The Health Services Australia report notes "lower back pain occurs with bending over or heavy lifting".  Dr Lewis-Enright noted that pain in the back was "variable from days when it is pain free to maximum pain and he can do nothing".  We are therefore satisfied that the Applicant is correctly assessed under Table 5.2 as regards thoracolumbar spine and that a rating of 10 is applicable.

2. At the time the Applicant was examined at Health Services Australia no specific complaint had been made of reduction of movement in the left shoulder.  The Applicant's general practitioner in document T6 merely referred to "difficulty with heavy lifting and working above shoulder level".  Although the examining medical officer at Health Services Australia had the benefit of an interpreter apparently no mention was made of pain or loss of movement in the left shoulder.  Dr Habib refers to a history of pain spreading from the neck to the shoulders but apparently did not examine the shoulders.

3. The history taken by Dr Habib refers to shoulder pain, which spread from neck pain that started nine months prior to his examination in May 2000.  The examination by Dr Lewis-Enright was very thorough and the Applicant ought not to be disadvantaged by any inadequacy of examination or description of symptoms either by his general practitioner or other medical examiners.  Accepting the history taken by Dr Habib, we are satisfied that the Applicant was experiencing shoulder pain at the time of his application for disability support pension and that Dr Lewis-Enright has correctly assessed it at a rating of 5 on Table 3 in Schedule 1B.

4. Where Dr Lewis-Enright's assessment of the degree of orthopaedic impairment differs from that of the assessment made at Health Services Australia, we prefer the assessment by Dr Lewis-Enright as he has specialist qualifications in occupational medicine.

5. So far as the Applicant's psychiatric illness is concerned this was not considered at the Applicant's examination by Health Services Australia as the Applicant's general practitioner made no reference to it in his report.  Dr Oner does refer to anxiety, which was apparently treated by the prescription of Aurorix, which is an anti-depressant but no specific notation of named and diagnosed psychiatric illness was made.

6. It was not until April 2000, that is to say some two months after application for disability support pension and Dr Oner's report in support of that claim, that the Applicant was referred by Dr Oner for psychiatric evaluation.  On 6 April 2000 Dr Chaudhary reported to Dr Oner that the Applicant suffered from depression and anxiety.

7. In evidence to the Tribunal Dr Chaudhary opined that the Applicant suffered a post-traumatic stress disorder.  The diagnosis of post-traumatic stress disorder was first suggested by Dr Lewis-Enright in his report of 17 July 2001.  Dr Chaudhary in his report of 7 August 2001 states that his diagnosis as mentioned in his report of April 2000 remains the same, namely depression and anxiety although he added: "He did exhibit some signs of post-traumatic stress disorder as well".  In other words although Dr Chaudhary refers to signs of post-traumatic stress disorder he adhered to his original diagnosis of anxiety and depression.

8. Whatever may be the current state of the Applicant's psychiatric illness we are satisfied that as at the date of Dr Chaudhary's first report, namely 6 April 2000, the Applicant's psychiatric illness could not be described as treated and stabilised.  The words treated and stabilised are ordinary English words and are not used in any technical sense.  As the Applicant had only just presented for investigation and Dr Chaudhary was recommending further counselling and supportive psychotherapy then the condition could not be said to have stabilised.

1. No further discussion of the rate of impairment (if any) created by the Applicant's psychiatric condition is required as he reaches the 20 point threshold required by paragraph 94(1)(b) of the Social Security Act 1991 due to orthopaedic disability. In addition, as the Applicant is aged over 55 years (DOB 1944) in considering whether training would equip the Applicant for work, regard need only to be had to the availability of work in his locally accessible labour market, in this case Western Sydney.

2. As Dr Lewis-Enright pointed out in evidence and as this Tribunal is well aware, the Applicant would be regarded by prospective employers as a worker's compensation risk.  Further, we accept Dr Lewis-Enright's evidence that light process work is not a viable option for the Applicant due to his difficulties in maintaining posture at a bench.

3. Although paragraph 94(1)(b) requires that the degree of impairment under the impairment tables amounts to 20 points or more before disability support pension can be granted, that provision does not mean that other impairments such as hypertension and diabetes mellitus for which the rate of impairment is nil must be disregarded when ascertaining the ability of the Applicant to undertake work.

4. Having regard to the evidence of the Applicant and that of Dr Lewis-Enright we are satisfied that the Applicant would be unable to undertake work for at least 30 hours a week and his impairments, particularly his inability to concentrate because of neck pain, would prevent him undertaking educational or vocational training.  In any event such training would not, because of his orthopaedic impairment, enable him to do any work at any time much less within two years.

5. For these reasons therefore the decision under review is set aside and the Tribunal substitutes its decision, namely that the Applicant is entitled to disability pension as and from the 2 February 2000.

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

   Senior Member M D Allen
   Dr J D Campbell, Member

   Signed:         ............(Kwai-Ling Wong)..................................
     Associate

   Date/s of Hearing  23 October 2001
   Date of Decision  19 November 2001
   Solicitor for the Applicant         Mr J Dagnall, Legal Aid Commission              
   Solicitor for the Respondent    Mrs A Smith, Department of Family and
     Community Services