Celebi and Secretary, Department of Family and Community Services

[2005] AATA 1138

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1138

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/826

GENERAL ADMINISTRATIVE  DIVISION		)
Re		HASAN CELEBI

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Senior Member, Mrs Josephine Kelly

Date17 November 2005

PlaceSydney

Decision The reviewable decision is set aside and substituted for it is the decision that Mr Celebi is entitled to the Disability Support Pension from the date of claim.

[sgd] Senior Member, Mrs Josephine Kelly

CATCHWORDS

SOCIAL SECURITY – disability support pension – impairment tables - Applicant has an impairment rating of more than twenty points – Applicant does have a continuing inability to work – decision set aside.

LEGISLATION
Social Security Act 1991 section 94 and Schedule 1B
Social Security Administration Act 1999 (Cth) Schedule 2, Part 2, section 4

REASONS FOR DECISION

17 November 2005   Senior Member, Mrs Josephine Kelly  

Background

1.      Mr Celebi, the Applicant, seeks to have a decision set aside which refused his application for disability support pension (“DSP”). That decision was made on 31 May 2004 by the Social Security Appeals Tribunal (“SSAT”).

2.      Mr Celebi listed the following disabilities in his claim for the DSP which was received by Centrelink on 12 January 2004 (T12):

·     back pain

·     shortness of breath / chest pains

·     neck pains

·     shoulder pains

·     pains in the right leg

·     sleep apnea (sic)

·     depression

3. Mr Kenny appeared at the hearing for the Respondent, the Secretary, Department of Family and Community Services (“the Secretary”). He accepted that Mr Celebi had a physical impairment as required by s 94(1)(a) of the Social Security Act 1991 (“the Act”), but argued that that impairment did not satisfy the 20 points under the Impairment Tables required by s 94(1)(b) of the Act. He said that therefore it was unnecessary to address the question of Mr Celebi’s continuing inability to work pursuant to s 94(1)(c)(i).

4.      However, Mr Kenny undertook to obtain an audiogram which was not  available at the time of the hearing. When that was obtained, the Secretary advised the Tribunal and Mr Celebi that as it showed a binaural hearing loss of 47.5%, there was an impairment rating of 15 points under the relevant Table 12. I have marked the letter dated 11 October 2005 and attached audiogram Exhibit R2.

5.      The Secretary acknowledged that the proper rating at the time of Mr Celebi’s claim was 25 points and therefore that the only issue for the Tribunal is whether or not Mr Celebi has a continuing inability to work pursuant to s 94(1)(c)(i) of the Act.

6.      I infer that the additional 10 points conceded by the Secretary refers to the 10 points given in 2002 by Dr Wassenaar, an Health Services Australia doctor, for Mr Celebi’s low back pain (T11, p 28). That was conceded by the Secretary before the hearing. The assessment was loss of half range of movement and applying Table 5.2 the impairment is ten points.  

7.      As Dr Wassenaar again assessed Mr Celebi in 2004 and arrived at a nil impairment rating for conditions including the lower back, I consider that I should consider that inconsistency. In the 2004 assessment, Dr Wassenaar applied Table 20 to assess all the painful musculo-skeletal impairments together as a pain issue.  There was a nil assessment. Given the Secretary’s concession and Mr Celebi’s evidence about his back set out below, I prefer the doctor’s 2002 assessment and accept the Secretary’s concession on this issue. 

Law

8. Section 94 also sets out what continuing inability to work means. Relevantly, it provides:

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 two years

(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.

The Evidence

9.      It is necessary to consider the evidence Mr Celebi gave about his various conditions first to determine if he has other impairments not conceded by the Secretary which may be considered for the purpose of determining his continuing inability to work, and secondly to be able to consider the extent of any inability to work.  

10.     In his evidence in chief, he said that the only medical conditions he had were lower back problems and a heart problem which included breathlessness and spasm in his right arm. It was only in response to questions asked during cross-examination that he gave evidence about other conditions.

Lower back pain

11.     During his evidence, Mr Celebi said that his lower back pain caused problems when he lifted things. He said that he cannot bend to lift even an A4 package about 10 mm thick. Later he said he can bend over if he is careful but if he makes the slightest mistake, he suffers pain. He has to squat to lift things. He can drive although he only drives short distances of approximately 50 to 100 kilometres. He has no problem walking or standing. He can push a shopping trolley and enjoys doing so, although his wife usually does the shopping with some assistance from their daughter who lives nearby. He cannot pick up his grandchildren who are aged one and four years. His daughter lifts them onto his lap. He is fed up with taking medication for pain, which I infer means he does not take medication very often if at all.

12.     He has seen various doctors including Vial, Maniam and Bannister. He has had local injections, analgesics and physiotherapy (T13 p 56)

Hearing

13.     Mr Celebi has hearing aids which he does not use he says because they do not differentiate the words clearly. He had them adjusted two months ago.

Other Conditions

14.     Following is the evidence in relation to each other condition about which evidence was given and my assessment of impairment.

Heart/breathlessness

15.     Mr Celebi had a coronary by-pass in November 2002. He said that his breathlessness, which he attributed to a heart condition, was his main problem. It occurs on exertion. He had an angiogram three or four weeks ago which was negative.  Mr Celebi stated that Dr Vogl, his heart specialist, had told him that his breathlessness was not caused by his heart condition and prescribed no treatment for it.  Mr Celebi stated that he is seeing Dr Vogl again in January 2006 for a check-up. 

16.     Dr Vogl and his general practitioner, Dr Iqbal, have told him to lose weight.  He said that he is on a waiting-list for what I understand is some agency providing advice about weight loss.  He said that he is walking as much as his condition allows which was about 700 to 800 metres for 30 to 35 minutes around the block. 

17.     On 26 February 2004 Dr Wassenaar wrote that Mr Celebi had a good result from his coronary artery bypass in terms of relief of angina and exertional breathlessness but that he has been short of breath for last 7 months and that a specialist had excluded a cardiac cause for his breathlessness. Hypertension is under control.   

18.     In view of Dr Wassenaar’s evidence, and accepting Mr Celebi’s evidence that Dr Vogl has told him is breathlessness is not related to his heart condition, I find that Mr Celebi has no impairment arising from IHD or hypertension. 

Knee

19.     In cross-examination, Mr Celebi said that the only problem he has with his knee is that there is a second layer of skin on his knee from bending down. I find there is no impairment.

Neck

20.     As far as his neck is concerned, when asked in cross-examination, Mr Celebi said that his movement was not limited but then he said that he can turn his neck but cannot do sudden turns and that he cannot move it completely. Mr Celebi’s evidence was given through an interpreter and therefore I do not give any weight to this apparent inconsistency. However, I am not satisfied that there is a loss of range of movement that satisfies Table 5.1 and accordingly attribute nil points for this condition

Sleep Apnoea

21.     Mr Celebi described how he wakes up because he does not breathe. This happens when he lies on his back but not when he lies on his side. He and his wife now have separate bedrooms for reasons associated with this but which were unclear. He has told her about his problem. He has not undergone a sleep study in hospital. He says that he does not pay much attention to it. There has been no investigation or treatment or diagnosis of this condition and I am not satisfied that he suffers from it. 

Prostate

22.     Mr Celebi said that he has a problem passing water. His underclothes get wet.  He is fed up going to doctors but might go if it gets worse. Dr Iqbal noted an enlarged prostate but included it in the category of generally well managed and with minimal or limited impact on ability to function (T13 p 59) which is consistent with Mr Celebi’s evidence. I find there is Nil impairment under Table 16. 

Other Conditions Claimed

23.     As Mr Celebi gave no evidence that shoulder pains, pains in the right leg or depression is of concern to him, I find that he does not relevantly suffer from an impairment in respect of each of those.

Other activities

24.     Mr Celebi can care for himself in terms of showering and dressing but otherwise does very little. The only lawn mowing he does is occasionally around the footpath, otherwise his son does it. His wife does the housework with assistance from their daughter and the gardening which is her hobby. He sometimes visits friends. He said that he has become lazy since he has had his heart problem. 

Work history

25.     Mr Celebi said that the work he had done since his arrival in Australia from Turkey in 1970 has been unskilled work at the BHP steelworks, work in the sheet metal factory and making formwork. He last worked about 7 years ago. He is now 59 years of age. He said he would love to work but could not promise that he could sit as a bench working every day for normal working hours. He cannot do that every day and he does not like sitting all the time. 

Medical Opinion on Work Ability

26.     At T10 in 2002 his treating doctor, Dr Iqbal, reports that his language and hearing difficulties affect Mr Celebi’s ability to work and that he has not worked since 1980. Dr Iqbal felt that it would more than two years from 2002 before Mr Celebi would be able to return to work. His work assessment at this time could not be completed until his coronary artery bypass graft operation.

27.      T11 in 2002 Dr Wassenaar suggested that the type of work that Mr Celebi would be suited to would be “light duties, doorman” and stated that he cannot do heavy physical work due to his musculo-skeletal conditions. Dr Wassenaar also reported that he can no longer do his usual work as a labourer and that he is long term unemployed.

28.     At T13 it is reported by Dr Iqbal in January 2004 that his shortness of breath and tiredness which he attributed to his heart condition will cause his ability to function to deteriorate over the next two years. However, this is inconsistent with Dr Vogl’s recent advice to Mr Celebi that his breathlessness is not caused by his heart condition. 

29.     At T14 in 2004 Dr Wassenaar reports that he “should be able to do a wide range of lesser skilled light work” but this is only after his breathlessness is resolved.  Dr Wassenaar reports that he is “not suited to work requiring good hearing; or in noisy environments” and that due to his back that Mr Celebi is “unable to do sustained heavier manual work.” This assessment was done on the basis of a 5 point impairment for hearing and not with the benefit of the recent audiogram.

Consideration

30. Mr Celebi is long term unemployed. He required an interpreter at the hearing. When he was working he was doing unskilled work where he had to sit at a bench all day. The impairment to his lower back prevents him from doing unskilled labouring work. I have no assessment from a doctor of his ability to work which includes an impairment of 15 points for his hearing. However, given Dr Wassenar’s opinion in the absence of the recent information, I conclude that his hearing impairment will make it much more difficult for him to work. If he undertook light duties he would have to be instructed in what to do. When his impairments are considered together, I conclude that they are sufficient to prevent him from doing any work as defined in s 94(5) of the Act within the next 2 years.

31. For similar reasons I find that his impairments would prevent him from undertaking relevant training during the next 2 years. In particular, s 94(5) of the Act does not include educational or vocational training designed specifically for people with physical, intellectual or psychiatric impairments. With his hearing loss it would be difficult for Mr Celebi to undertake vocational training that was not specifically designed for people with hearing difficulties.

32.     For the reasons set out above I find that Mr Celebi has a continuing inability to work.

33. In Schedule 2, Part 2, Clause 4 of the Social Security Administration Act 1999, Mr Celebi must be qualified for DSP at the date of claim or become qualified within 13 weeks thereafter. I find that Mr Celebi had a continuing inability to work at the time of the claim.

Decision

34.     The reviewable decision of the Social Security Appeals Tribunal is set aside and substituted for is the decision that Mr Celebi is entitled to the Disability Support Pension from the date of claim.

I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member, Mrs Josephine Kelly

Signed: Miss Sacha Keady
  Associate

Date/s of Hearing  7 October 2005
Date of Decision  17 November 2005
Applicant Representative         Self Represented
Advocate for the Respondent   Centrelink Legal Services