Cklamovska and Department of Family and Community Services
[2001] AATA 624
•4 July 2001
DECISION AND REASONS FOR DECISION [2001] AATA 624
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1998/ 1734
GENERAL ADMINISTRATIVE DIVISION )
Re JANET CKLAMOVSKA
Applicant
And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Dr J Campbell
Date 4 July 2001
Place Sydney
DecisionThe Tribunal sets aside the decision under review and in substitution therefor determines that:
(a)the Applicant was severely disabled at the time of her departure from Australia on 15 May 1997 and remained severely disabled until her return; and
(b)the Applicant qualified for payment of DSP for the whole period of her absence from Australia from 15 May 1997 and continues to qualify for such payment of DSP until such time as it is concluded that she no longer qualifies (see paragraph 46).
[sgd] Dr J Campbell
Member
CATCHWORDS
Social Security - disability support pension - continuation of payment overseas - severely disabled - ability to work within the next 2 years
Social Security Act 1991 - sections 23 (4B), 94, 1213A, Schedule 1B Impairment Tables
REASONS FOR DECISION
Dr J D Campbell
In this matter, Ms Janet Cklamovska, ("the Applicant"') seeks a review of the decision of the Social Security Appeals Tribunal (SSAT) dated 20 October 1998 which affirmed the decision of a Centrelink delegate of the Secretary, Department of Family and Community Services ("the Respondent") dated 3 April 1998, which in effect cancelled the payment of disability support pension ("DSP") with the date of effect being 12 months after her departure from Australia, as it was considered that the Applicant was not 'severely disabled'. This latter decision was reviewed by the authorised review officer and affirmed in a decision dated 18 August 1998.
A hearing was held before the Tribunal on 22 February 2001 at which the Applicant was represented by Ms Koller, a solicitor from the Welfare Rights Centre. The Respondent was represented by Ms Smith, an advocate from the Advocacy and Administrative Law Team at Centrelink. Both the Applicant and the Applicant's father presented oral evidence to the Tribunal.
The following material was placed into evidence before the Tribunal:
Exhibit No Description Date
T1-T34 pp1-76 Documents prepared pursuant to section 37 of the Administrative Appeals TribunalAct 1975
A1 Applicant's Statement of Facts and Contentions 6 November 2000
A2 Medical report Dr Marinkovich 16 March 1999
A3 Treating doctors report, Dr Russell 24 August 2000
R1 Respondent's Statement of Facts and Contentions 17 November 2000
R2 Letter to Tribunal from Respondent 29 November 2000
issues
The relevant issues before the Tribunal are:
(a) whether the Applicant was a severely disabled person under the Social Security Act 1991 ("the Act"), prior to her departure from Australia on 15 May 1997;
(b) whether, if the Applicant was a severely disabled person under the Act prior to her departure from Australia on 15 May 1997, was there a decision made by the Secretary sometime after her departure finding that she ceased to be severely disabled; and
(c) whether the Applicant is qualified for the continuation of her payment of a DSP whilst overseas for longer than 12 months.
legislation
The relevant legislation in this matter is the Social Security Act 1991 ("the Act") and in particular sections 23(4B), 94, 1213A and Schedule 1B Impairment Tables.
background and file evidenceOn 6 August 1996, Dr Russell completed a treating doctor's report nominating that the Applicant had the condition of brittle bones with six past fractures and epilepsy since 1993 with six to seven fits and emotional panic attacks. Dr Russell considered the Applicant's conditions to be both long term and stable. He considered the Applicant unfit for either full time or part-time work (T4).
Dr A Casolin, an Australian Government Health Service Medical Practitioner examined the Applicant on 7 November 1996 and gave the following whole personal assessment of the Applicant (T18):
"This 20 year old woman has led a very sheltered existence due to previous fractures when young. Her attendance at school suffered due to fear of sustaining a fracture. After completing year 10, she was alone in her father's fish shop when she was held up. Since then she has never left home by herself, has never revisited the shop and has had recurrent negative thoughts of the incident which have become generalised to involve the word [sic] at large. Her fear of sustaining a fracture is still present, but the fear and social withdrawal following the hold up seems to be the main problem.
Mrs Cklamovska has never seen a psychiatrist or a counsellor, but both her and her father acknowledge that the sequelae of the hold up seem to be the main problem. Her epilepsy is certainly well controlled and there have been no fractures in recent years. The reason for the brittle bones is unclear but her treating doctor could not be contacted to clarify the precise diagnosis.
As the primary problem is psychiatric however, Ms Cklamovska will require an independent psychiatric review as she has never before consulted a psychiatrist and the diagnosis is not clear. A recommendation will be forwarded once this report is received".The Applicant was referred to Dr Klug, a Consultant Psychiatrist, who, in a report dated 9 January 1997, stated the following opinion (T11, p58):
"I am sceptical of the diagnosis of epilepsy. I would like to establish the basis on which such a diagnosis has been made and whether the prescription of anticonvulsant drugs has been beneficial.
My opinion is that she suffered from an acute stress disorder followed by a possible post-traumatic stress disorder for a period of approximately six months after the robbery. The severity of this stressor is understandable under normal circumstances but more so in the case of Ms Cklamovska who has osteogenesis imperfecta and is fearful of injury with normal day to day living let alone in a situation of being physically threatened in a robbery. She improved when overseas in Macedonia and living with relatives and was well on her return until there was an exacerbation of her condition following a fire in the family garage in which she thought her father may have died.
On the history taken, I am unconvinced that her attacks are compatible with a true epileptic fit. A comprehensive neurological examination and the results of her EEG would help to determine this. I believe she is probably suffering from panic attacks which settled when she went overseas but were reignited following the fire. Panic attacks can occur in the context of a post traumatic stress disorder which is also an anxiety disorder.
Ms Cklamovska should receive education, support and treatment for her panic. She remains, however, at risk for an exacerbation if she feels vulnerable or physically threatened in any situation. If such treatment is successful, she could attempt a return to work on a part-time basis from a psychiatric standpoint but her osteogenesis imperfecta also needs to be taken into account in assessing her capacity to work.
It may be of benefit for a copy of my report to be sent to her treating doctor.
I hope this report has been of assistance and, if I can be of further help, please don't hesitate to contact me".In a report dated 15 January 1997 Dr Wolrige, a senior medical officer with the Australian Government Health Service, summarised her assessment and opinion following the receipt of Dr Klug's report in the following terms (T12, p59).
"In view of Dr Klug's assessment, I consider that Ms Cklamovska is unfit for full time work for at least 2 years. Rehabilitation, with psychiatric support could be attempted. Review in 2 years is recommended.
Impairment
Post-traumatic stress disorder 20% Table 7
Combined impairment 20%
Unfit for full time work for 2 years".In a qualification work sheet completed by the disability support officer on 21 January 1997 (T13), this officer of the Respondent concluded that:
(a) the Applicant's impairments alone are sufficient to prevent her from doing her usual work over the next two years;
(b) the Applicant's impairments alone are sufficient to prevent her from undertaking all other work for the next two years for which she is presently skilled; and
(c) the Applicant is unable to do other work for which she does not presently have the necessary skills.
As a result of these findings the disability support officer recommended that the Applicant was qualified for DSP.Dated 7 April 1997, a file note reads that the Applicant planed to go overseas, that DSP pension could be paid overseas indefinitely, and that the factors affecting this decision were that the Applicant was medically qualified for DSP and was severely disabled (T14, p66 and T16).
On 7 April 1997 the Respondent wrote a letter to the Applicant informing her that her DSP would continue to be paid indefinitely while overseas and that it would be subject to a review process every six months (T15).
An entitlement review was undertaken on 11 November 1997 and on 3 April 1998 the Applicant was advised that she could not be paid DSP indefinitely unless she was severely disabled and that she had as yet not been so classified. Further, they indicated that a medical examination was to be organised (T18).
On 11 May 1998, Dr Bojadjiev, a Specialist Neuropsychiatrist, reported that the Applicant sufferred epilepsy and was incapable of work (T20).
On 15 May 1998 an Approved Medical Examination Report was finalised by Dr Boris Serden Kovski, a Specialist in General Medicine, which stated (T21, p112):
"On the basis of the anamnesis, my examination, the examination of the neuro- psychiatrist and his tests (EEG-finding) and his opinion, I can make a conclusion that there is a case as: a patient suffering from epilepsy and one general weakness and poor physical development.
DG EPILEPSY and ASTHENIA CORPORIS GRAVIS
The patient receives regular therapy (Antiepileptika) being dependent on it. The therapy is necessary for her health and life. But when she is under the therapy she is incapable of any work."
On 15 May 1998, the Applicant's payment of DSP was ceased, as was her Pensioner Concession Card, with effect from 28 May 1998 (T22).
Dr Serden Koveski's report and a similar treating doctor's report from the same doctor were assessed by Dr Winzenberg in Hobart. Dr Winzenberg concluded that the Applicant had the conditions of epilepsy and osteogenesis imperfecta and that each rated 0 points under Tables 21 and 20 respectively of the Schedule IB Impairment Tables. Dr Winzenberg considered the Applicant unfit for all work, but belived she would be medically fit for 30 hours of work per week in light skilled / semi skilled or lesser skilled work categories currently (an apparent inconsistency) (T34).
On 16 July 1998 the Applicant was advised by the Respondent that she no longer qualified for DSP, as she had a nil points impairment rating and that the doctor also advised there was little evidence of continuing inability to work (T25, T26).
On 18 August 1998 the matter was reviewed by a authorised review officer, who affirmed the decision to limit the Applicant's DSP payments to 12 months overseas because she was not severely disabled (T33).
On 2 October 1998 the SSAT affirmed the decision.
On 22 August 2000 Dr Russell, General Practitioner, forwarded a further treating doctor's report in which influence is made to the two conditions of epilepsy and osteogenesis imperfecta and that her medical condition preclude her from working (Exhibit A3).
A report by Dr Marinkovich dated 16 March 1999 described the Applicant as suffering from osteogenesis imperfecta, epilepsy, anxiety neurosis and depression. Dr Marin Kovich considered these conditions to be permanent and concluded that she will be totally unfit for any type of work for the rest of her life (Exhibit A2).
Both the above two reports were considered in the new Application for DSP, which has been granted (Advice to Tribunal by Respondent dated 9 October 2000).
On 18 March 1999 a disability support officer was requested, by a Ms Brimson, to write up his assessment whereby on 21 March 1998 he had concluded that the Applicant was not severely disabled. The disability support officer made the following assessment and comments on 19 March 1999 (Exhibit R2):
"When the customer went overseas and exceeded her 12 months allowable absence, I was asked to provide an assessment for portability of DSP. Using the available information at that time and the assessments of both Dr Klug and Dr Wolrige, it was my opinion that Miss Cklamovska could not be considered 'severely disabled' by virtue of her having been identified as having the capacity to return to part-time work within two years following successful treatment.
Review by medical examination in 1998 would later determine that Miss Cklamovska had in fact improved to the extent that she was considered fit for full-time work."In a report dated 26 June 2000, Dr Sivakov, Specialist Neuropsychiatrist, stated that he had seen the Applicant and during his initial examination concluded that she was primarily ill from epilepsy. The doctor stated that he felt obliged to seek additional examinations on the brain and psychological testing before conducting a psychiatric assessment. The Applicant never returned to see him (Advice by Respondent to Tribunal dated 3 October 2000).
applicant's evidenceThe Applicant told the Tribunal that she was born on 11 October 1976 and remained at school to midway through year ten when she left because of a lack of concentration. This the Applicant attributed to both attitude and to physical issues, in that she had been diagnosed with the condition of osteogenesis imperfecta (six to seven broken bones with minimal trauma, if any) and, after leaving school was diagnosed with epilepsy. This, in turn resulted in her being in poor physical condition, tired and unhealthy, and generally experiencing a feeling of low self-esteem. The Applicant stated that during her primary school years she had experienced problems with her right foot and left hand, and in year seven with her right knee. She stated that she was unable to participate in sport and that she spent a lot of time thinking about her health and the rest of her life. She told the Tribunal that her father accompanied her to school and carried her bag, that she had difficulty in relationships with other children and as she grew older she had less friends.
On leaving school, her father asked her to work in his shop, which she did for a few hours each day for six months. She did not enjoy talking to customers and while on her own in the shop she was held up by a man with a gun. She has not worked in the shop since and rarely goes out alone since that time. The Applicant does not do her own shopping, but she used to accompany her sister shopping once every one to three months. She saw both her counsellor at school and her doctor about her various fears, concerns and anxieties. The Applicant indicated that she went to Macedonia at age 20, following a fire in the garage, which caused her more fears and anxieties because at the time she held a belief that her family were in the garage. She had previously travelled to Macedonia at age 17 following the shop hold-up incident.
The Applicant stated that while in Macedonia, she stayed with two uncles and their families and that she never went out alone. She met and married her husband in Macedonia in October 1999, and during her period in Macedonia she had two seizure episodes, one before the whole house of ten people and one a week before the wedding, both associated with intermittent failure to take epileptic medication. The Applicant stated that she did very little while in Macedonia and that she usually slept to 12 midday or later, although she did try to help with the cooking and washing up.
After the wedding, the Applicant stated that it took more than a year for her husband to secure the necessary papers for migration to Australia and during that period she lived with his parents. During this period, she was left by herself during the day, did not go outside as she was scared and the house was locked, and all she did was minor household chores.
submissions
the applicant:The Applicant submitted that at the time of her departure from Australia on 15 May 1997 she was unable to perform any form of work, nor undertake any courses of rehabilitation, and as such was severely disabled. In formulating such a contention, the Applicant relies on her own evidence as to the existence of the impairments of osteogenesis imperfecta, epilepsy and a psychiatric disorder. Further, during the relevant period prior to going to overseas, the Applicant relies on the opinions of Dr Klug, ConsultantPsychiatrist, and Dr Wolrige, Senior Medical Officer, who both attest to her lack of capacity to work at that time. Similarly, the Applicant relies upon the opinion of the disability support officer of 21 January 1997, and similarly the Respondent's file note of 7 April 1997 where it was stated that the Applicant was medically qualified for DSP and is severely disabled.
The Applicant further submitted that being severely disabled at the time of departure from Australia in May 1997, she was entitled to continued payment of DSP during her absence from Australia. In so stating the Applicant contended that the decision dated 16 July 1998 to cancel her disability support pension was incorrect, as this was not a proper consideration of her impairments, particularly her psychiatric impairment, for which she had been granted DSP in 1996 and for which she was again granted DSP on her return to Australia in 2000.
respondent:The Respondent contended that the Applicant was not sincerely disabled at the time of her departure in May 1997, and in so stating relies upon the opinion of the disability support officer dated 19 March 1999 and the fact that the Applicant's DSP was ceased in July 1998, as it was considered the Applicant no longer qualified for DSP, and further that it was considered that she had some capacity for work.
considerations and findingsThe Tribunal considers this matter to be somewhat unusual in that a particular series of decisions were made in late 1996 and early 1997 whereby the Applicant was granted DSP primarily on the grounds of exacerbation of a post traumatic stress disorder. Further, in April 1997 a decision was made by an officer of the Respondent that encompassed an assessment of the Applicant as severely disabled and advice being forwarded to the Applicant that her DSP payment would be paid indefinitely while she was overseas.
In further summarising the circumstance, the Tribunal notes that the Applicant departed overseas on 15 May 1997 having sought and been given the advice nominated in the earlier paragraph. Some twelve months later a review was conducted and information was obtained from specialists in Macedonia, which in essence was to do with the Applicant's epilepsy, with very little if any clinically significant advice being forwarded in relation to the psychiatric impairment. It would appear a decision was made that the Applicant was not seriously disabled at the time of her departure, with a retrospective report dated 19 March 1999 being written up to detail the reasons for the decision of 21 March 1998. As a further consequence of the clinical information gathered from Macedonia, a decision was taken to cancel the Applicant's DSP on 16 July 1998, as the Applicant was considered to no longer satisfy the qualifications for such payment.
In assessing all the evidence placed before it, the Tribunal does, in some ways have the benefit of a retrospective examination, which in some way ensures a perspective that is not necessarily available to a decision maker as the course of a particular series of events unfolds. Nevertheless, the Tribunal does make the following finding of facts:
(a) that the Applicant did suffer from the following impairments at the time of her departure from Australia on 15 May 1997:(i) Osteogenesis Imperfecta
(ii) Grand Mal Epilepsy; and
(iii). Post Traumatic Stress Disorder, which in all probability commenced after the armed hold up of her father's shop and a further exacerbation following the garage fire in 1996.
(b) that the Applicant was granted DSP as a consequence of her application on 3 October 1996;
(c). that the Applicant was considered severely disabled by the Respondent on 7 April 1997, and that the Respondent did confirm to the Applicant on 7 April 1997 that she was entitled to be paid DSP indefinitely whilst overseas, but that it would be subject to a review process every six months;
(d) that a review process was initiated by the Respondent on 11 November 1997, and the Applicant was advised that she had not been classified by the Respondent as severely disabled on departure, and that a medical examination would be organised;
(e) that a medical examination was organised and undertaken in Macedonia and information was received on 29 May 1998 by the Respondent from two specialist doctors, in reports dated 11 May 1998 and 15 May 1998;
(f) that a decision was taken by the Respondent on 21 March 1998, that the Applicant was not severely disabled at the time of her departure, with this decision being compiled in writing on 19 March 1999;
(g)i. that the Applicant's payment of DSP was ceased on 15 May 1998;
(h) that the Applicant's DSP was cancelled on 16 July 1998, following a review of the overseas medical reports dated 11 May 1998 and 15 May 1998 by Dr Winzenberg, and an assessment that she no longer qualified for DSP; and
that the Applicant was granted DSP on her return to Australia and following the lodgement of an application in August 2000.
statutory framework
This matter is to be considered under the following statutory framework, contained within the Act.
"23(48) For the purposes of this Act, is a person is severely disabled if:
a physical impairment, a psychiatric impairment, an intellectual impairment, or 2 or all of such impairments, of the person make the person, without taking into account any other factor, totally unable:(i) to work for at least the next 2 years; and
(ii) unable to benefit within the next 2 years from participation in a program of assistance or a rehabilitation program; or
(b) the person is permanently blind
1213A Portability of disability support pension
General
1213A(1) Subject to subsection (2) and (3), a person's right to continue to be paid disability support pension is not affected by the person's leaving Australia.
Pensions granted on or after 12 November 1999 to persons not severely disabled
1213A(2) If:
(a) a person is receiving a disability support pension granted on or after 12 November 1991; and
(b) the person leaves Australia on or after that day; and
(c) the Secretary decides that the person is not severely disabled when leaving; and
(d) the person continues to be absent from Australia for a period of 12 months;
the person ceases to be qualified for disability support pension on the day after the 12 month period ends.
Pensions granted on or after 12 November 1991 to persons severely disabled.
1213A(3) If:
(a) a person is receiving a disability support pension granted on or after 12 November 1991; and
(b) the person leaves Australia on or after that day; and
(c) the person is severely disabled when leaving; and
(d) the Secretary decides that the person has ceased to be severely disabled; and
(e) the person continues to be absent from Australia for a period of 12 months after the decision;
the person ceases to be qualified for disability support pension on the day after the 12 month period ends.
…"36. In turning to the particular issue of whether the Applicant was severely disabled at the time of departure from Australia, the Tribunal notes that the criteria stipulated within s23(4) of the Act require the Applicant to be totally unable to work for at least the next two years and unable to benefit within the next two years from participation in a program of assistance or a rehabilitation program, with such inabilities arising directly from the impairments.
37. In addressing the question of impairments at the relevant time, namely the time of departure in May 1997, the Tribunal has already concluded that the Applicant had the particular impairments of osteogenesis imperfecta, grand mal epilepsy and a post traumatic stress disorder. In stating the above, it is evident to the Tribunal that at that time some of the doctors were unsure of the presence of grand mal epilepsy (Dr Krug), but her treating doctor, Dr Marinkovich, and subsequent grand mal seizures in Macedonia, confirmed the diagnosis. Further it is evident from the report of Dr Krug, that, in his opinion, the post traumatic stress disorder was associated with both anxiety and panic attacks, and that exacerbations of the underlying disorder could occur if the Applicant felt vulnerable or physically threatened in any situation
38. The Tribunal further notes, that Dr Krug believed that the Applicant should receive education, support and treatment for her panic disorder and if such treatment is successful she could attempt a return to work on a part time basis from a psychiatric point of view. He further stated that other physical impairments would have to be taken into consideration in assessing her capacity to work.
39. The Tribunal notes that there is no argument amongst the doctors in their reports, at the relevant time, that the Applicant was unfit for full time work for two years. It is evident to the Tribunal that Dr Klug did not consider the Applicant fit for any work until she received education, support and treatment for her panic disorder, and that further consideration of her ability to work must encompass a combined assessment of her psychiatric and physical impairments.
35. In further progressing the issue, the Tribunal notes that the Applicant travelled to Macedonia to live with her uncles, and in a place where she had experienced security following the initial episode of the armed hold up in the shop. Such an activity is, in the Tribunal's view, consistent with Dr Klug's overall recommendations as to the treatment of her psychiatric impairment.
36. While the Tribunal notes that there is a file note dated 7 April 1997, which suggests that the Applicant was considered to be severely disabled by the Respondent, no reasons for such a finding are nominated within that note, and as such the Tribunal must deal with the matter on the evidentary material relevant to the particular period.
37. In so doing, and having heard and observed the Applicant at the hearing, it is evident that at the time of departure the Applicant's physical and psychiatric impairments were significant. At that time, the psychiatric impairment caused significant and added difficulties for an individual who was already suffering one congenital physical disability and one acquired disability (epilepsy). Further, it is evident to the Tribunal that the combined effects of these disabilities had increasingly caused difficulties for the Applicant in relation to her school experiences, her post-school, very limited work experience, her other interpersonal relationships and the manner in which she carried though her everyday existence.
38. On the totality of the evidence, the Tribunal finds that the Applicant was severely disabled at the time of departure, in 1997 from Australia. Such a finding is based on the Tribunal's assessment of the Applicant's evidence and the medical opinions expressed that the Applicant was totally unable to work for at least two years, and that, in the light of Dr Krug's opinion, a psychiatric treatment program would have to be instituted and a successful outcome arrived at, before even, on psychiatric grounds, a return to part-time work could be considered.
39. As a consequence of such a finding, the Tribunal further concludes that the Applicant was entitled to continuation of payment of her DSP upon her departure from Australia on 15 May 1997, pursuant to s1213A(1).
40. The Tribunal further notes that a review process was instituted by the Respondent commencing in November 1997. As a result of this review process, two medical opinion were obtained from particular specialists in Macedonia and both dealt with the issue of the Applicant's epilepsy, which in that period (May 1998) was not well controlled and for which the Applicant had been hospitalised. Both doctors reported that the Applicant was unfit for any kind of work.
41. In further analysis, the Tribunal observes that a decision was apparently made by the Respondent on the 19 March 1998 that the Applicant was not severely disabled, with the reasons for this decision being written some twelve months later on 19 March 1999. The Tribunal has already noted that a file note of 7 April 1997 appears to indicate that the Respondent considered the Applicant severely disabled. Nevertheless, on 4 April 1998 the Applicant was advised that as part of a new process which had been initiated in October 1997, a medical review would be established to assess whether a classification of severely disabled was appropriate (T18). The Tribunal further observes that the decision to cancel payments was effective from 15 May 1998, even though the review process was not yet finalised.
42. In further activity, the two reports from Macedonia were received in late May 1998 and were assessed by Dr Winzenberg on 15 June 1998, who considered the Applicant unfit for all work. However, in completing the appropriate form the doctor indicated that the Applicant was fit for light skilled, semi skilled or lesser skilled work categories for 30 hours a week at award wages at that time (T34). Clearly, leaving aside for the moment that the issue of the Applicant's psychiatric impairment, which had been a significant impairment in consideration at the time of the Applicant being granted DSP in 1996, was not even addressed let alone considered, the assessment by Dr Winzenberg is of little assistance to the Tribunal because of the apparent inconsistency. The failure to address the psychiatric impairment issue in the light of the previous circumstances adds to the Tribunal's concern as to the adequacy of the medical review process, which resulted in the Respondent concluding in July 1998 that the Applicant no longer qualified for DSP.
43. The Tribunal concludes that there has been a general inadequacy about the medical elements of the review process. The Tribunal notes the failure to consider the issue of a psychiatric impairment and an apparent inconsistency in the assessment of whether the Applicant had a capacity to work in June 1998. In resolving this issue, the Tribunal, in noting the medical opinion of the two Macedonian specialists in their reports of May 1998 that the Applicant was unfit for all work, concludes that this was a correct assessment. In the absence of any evidence to the contrary, and indeed in light of the evidence of Dr Sivakov, in his report dated 20 June 2000 that a psychiatric examination was never completed at the time because of the issue of epilepsy, the Tribunal concludes that a failure to address the issue of the psychiatric impairment and its effect both alone and together with the physical disabilities essentially negates the Tribunal placing any reliance upon the medical assessment made on 15 June 1998 which led to the cancellation of the DSP in July 1998.
44. In further consideration, the Tribunal concludes that the decision to cancel the Applicant's DSP on 16 July 1998 relied upon an inadequate and inconsistent medical assessment, and as a consequence, on the evidence available to the Tribunal, such a decision must be set aside. In substitution thereof, and relying upon the earlier evidence which related to the granting of DSP in late 1996; the reports from the Macedonian specialists; and the Applicant's evidence of her activities and domestic circumstances in Macedonia during the period, the Tribunal finds that there has not been any medical evidence adduced, which would alter the Tribunal's view that the earlier medical evidence which led to the Tribunal concluding that the Applicant was severely disabled at the time of departure from Australia in May 1997. Indeed, any further medical evidence which has been addressed tends to reinforce the combined effect of the Applicant's impairments, on both her way of life and her total inability to work.
45. As a consequence, the Tribunal concludes that the Applicant continued to qualify for DSP as at 16 July 1998, in that the combined rating of her impairments was 20 points or greater and that she had a continuing inability to work. In arriving at the 20 point rating, the Tribunal continues to rely upon the opinion of Dr Krug formulated in early 1997, the evidence of the Applicant as to her personal circumstances and behaviour and the evidence addressed by the Macedonian specialists. The Tribunal also notes that on her return to Australia the Applicant was granted DSP for the same impairments that were present when she was first granted DSP in late 1996, with the obvious inference that in the absence of any medical evidence of a sustained improvement, the impairments are considered to be both permanent and stable.
46. Further, the Tribunal concludes as a result of its earlier findings, that the Applicant continued to qualify for DSP at all times following her departure from Australia on 15 May 1997; that during her period of absence from Australia, she remained severely disabled; that the Applicant is entitled to payment of DSP during her period of absence from Australia commencing 15 May 1997; and that this payment should continue until she is considered not to be severely disabled while absent from Australia, or to such point in time that she no longer qualifies for DSP.
determination
47. The Tribunal sets aside the decision under review and in substitution therefor determines that:
(a) the Applicant was severely disabled at the time of her departure from Australia on 15 May 1997 and remained severely disabled until her return; and
(b) the Applicant qualified for payment of DSP for the whole period of her absence from Australia from 15 May 1997 and continues to qualify for such payment of DSP until such time as it is concluded that she no longer qualifies (see paragraph 46).I certify that the 105 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell
Signed: Rachel Quinn .....................................................................................
AssociateDate/s of Hearing 22 February 2001
Date of Decision 4 July 2001
Solicitor for the Applicant Ms S Koller
Solicitor for the Respondent Ms A Smith
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