Dimitrevski and Department of Family and Community Services - [2001] AATA 915

DECISION AND REASONS FOR DECISION [2001] AATA 915

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2000/1197
GENERAL ADMINISTRATIVE DIVISION
  Re:         GOCE DIMITRIEVSKI
  Applicant
  And:       SECRETARY TO THE
  DEPARTMENT OF FAMILY AND
  COMMUNITY SERVICES
  Respondent

DECISION

Tribunal:       Miss E.A. Shanahan, Member
Date:             1 November 2001
Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) E.A. Shanahan
Member
SOCIAL SECURITY – Disability Support Pension (DSP) – applicant in receipt of DSP for 14 years – cancelled January 2000 – change in legislation
Social Security Act 1991 ss.94(1), 94(2), 94(3), 95(5)
Re Francis and Secretary, Department of Family and Community Services [1999] AATA 941

REASONS FOR DECISION

1 November 2001 Miss E.A. Shanahan, Member

The applicant seeks review of a decision of the Social Security Appeals Tribunal ("the SSAT") dated 11 September 2000. The SSAT affirmed the decision of the primary decision-maker made on 17 February 2000 and affirmed by an authorised review officer ("ARO") on 16 March 2000. The SSAT increased the applicant's impairment rating from 10 points to 15 points under the Impairment Tables.
At the hearing before this Tribunal the applicant was represented by Ms L. Kerjus, of counsel, instructed by Galbally & O'Bryan and the respondent was represented by Ms P. D'Cunha, an advocate with Centrelink. The hearing was conducted over a period of two days, the first day being 18 April 2001 at which time the hearing was adjourned and completed on 2 August 2001. Mr J. Gruev, qualified interpreter, assisted the applicant by translating from the English language to the Macedonian language and vice versa. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act1975 ("the T documents"). The applicant tendered a report of Dr P. Mitrevski, chiropractor, dated 6 February 2001 (exhibit A1), a report of Dr A. Polonowita, consultant psychiatrist, dated 1 February 2001 (exhibit A2) and Dr V. Vizec, general practitioner, dated 5 December 2000. The respondent tendered a report of Dr B. Harries, senior medical advisor, Health Services Australia Ltd ("HSA"), dated 12 April 2001 (exhibit R1). The applicant gave evidence before the Tribunal on the first day of the hearing and at the resumed hearing Dr Polonowita gave evidence for the applicant by telephone; Dr Vizec, in person and Dr I. Jackson, consultant psychiatrist, appeared for the respondent.
Background to the application
The applicant injured his back and left leg in a fall at work in 1985. He received WorkCover payments for approximately two years after this injury and following termination of WorkCover benefits he was assessed as qualified for a then invalid pension. Invalid pension was paid from 4 September 1986 until it was cancelled with effect from 18 February 2000. In June1987 the applicant applied to have his pension paid overseas and indicated that he would be residing permanently in Macedonia. The invalid pension was paid to him in Macedonia. On 12 November 1991 the invalid pension was replaced by the Disability Support Pension ("DSP"). At that time all recipients of invalid pension were automatically granted a DSP but this was subject to review. The applicant made several short trips to Australia and returned on the last occasion in November 1998.
On 8 September 1999 the applicant once more applied to have his pension paid overseas as he was departing for Macedonia on 13 September 1999. A medical review was requested and this was returned by his treating doctor, Dr Vizec after review on 6 October 1999. Dr Vizec advised a diagnosis of degenerative joint disease. He certified that the applicant was unable to work for more than two years in any capacity. The applicant was then reviewed by Dr T. Paulson, examining medical advisor, of HSA, at the request of Centrelink. Dr Paulson provided a report on 11 November 1999 requesting that the applicant be assessed by a psychiatrist. Dr Jackson saw the applicant on 13 December 1999 and provided a report dated 17 December 1999 (T37). Dr Jackson could not find any real evidence of depression or any other major psychiatric condition. From a psychiatric point of view he found the applicant fit to return to work, including his former work on a full-time basis.
Dr W. Kemp, rheumatologist and occupational health physician, assessed the applicant at the request of HSA on 4 January 2000 and subsequently provided a report dated 6 January 2000 (T38). Dr Kemp found no clinical features of any organic disease or structural injury. He did however note frank nervous symptoms which he advised should be assessed by a psychiatrist. On the basis of these two specialists reports, Dr Paulson concluded that the weight of evidence suggested the applicant was fit for non-heavy full-time employment such as processing working or packing that could be performed at bench or table height. On 28 January 2000 Centrelink advised the applicant that the recent review indicated that a Newstart Allowance ("newstart allowance") was the more appropriate income support rather than the DSP. On 8 February 2000 an ARO affirmed the decision to cancel the applicant's DSP. Following provision of further medical details by Dr Vizec, further review by a disability officer and an ARO, the decision to cancel the applicant's DSP was affirmed and the applicant advised by letter dated 16 March 2000. The SSAT affirmed the decision on 11 September 2000. The SSAT had adjourned the original hearing on 16 May 2000 to allow the applicant to provide additional medical evidence. As a result of this additional medical evidence, the SSAT estimated the applicant's disability points at 15.
Evidence before the Tribunal
The applicant gave evidence to the Tribunal in person and advised that he had left school after four years of primary education, following which he had lived at home on a small family farm and migrated to Australia at the age of 18 years. After a short term of employment with Smorgon's meat works, he commenced working with Toyota at approximately 32 years of age. In 1985 he was injured at work and was subsequently in receipt of worker's compensation, following which he was granted an invalid pension. He agreed that he had applied to have his pension paid overseas in 1987 and that he had resided almost continuously in Macedonia for a period of 13 years until his return to Australia in late 1998. The applicant stated that he had pain in his leg which radiated through his back to his neck and head. This pain was constant in nature. He believed his aches and pains were deteriorating with the passage of time. The pain did respond to medication. However he was only able to walk for a period of approximately 10 minutes, following which he would become very tired and suffer dizzy spells. He was able to drive for only 5 minutes as he developed pain in the legs and head and the sensation that his car was flying. He was able to drive from his home to the local Bi Lo store in Werribee. This he did 2 to 3 times per week and whilst his wife shopped he would sit on a bench in front of the pub and talk with fellow Macedonians. He acknowledged that he occasionally attended social events such as a wedding but did not go to the movies or the theatre. The applicant told the Tribunal that he was unable to do any household chores. He required his wife to help him dress and his wife and children coped with the garden. He spent most of his day sitting and watching television. However he did visit a Polish friend on a regular basis and his friend visited him once or twice a week. It was his habit to sleep for 1 to 2 hours during the day every day and he reported difficulty sleeping at night. It was his practice to go to bed at 10 o'clock or 11 o'clock at night but would awake during his sleep because of pains and pressures and headache. With the onset of pain during the night, he would get up, smoke a cigarette and have a cup of coffee. He would wake up 2 to 3 times a night and stay up for a period of 20 minutes and occasionally would take some analgesics (Panamax) and then return to sleep. The applicant also told the Tribunal that he was taking Mylanta, Nurofen, Panadeine Forte, Tegretol and Prothiaden. Panamax was taken intermittently, as was Maxolon. He had taken Allepam (an anti-anxiety agent) and regularly took Renitec for hypertension. The applicant denied that he took his medications every day as prescribed but used them only when in pain. On direct questioning from Ms Kerjus the applicant agreed he was capable of taking out the rubbish on the appropriate night. He agreed he had travelled overseas on several occasions on 20-hour flights to Macedonia and he developed head pain during flights. The applicant said he was unable to play with his grandchildren unless he was sitting or lying down with them and when asked if he would be able to return to work, he replied that he could not even consider it. He did not feel that his visits to his treating psychiatrist, Dr Polonowita, had been of any help at all.
In cross-examination by Ms D´Cunha, the applicant confirmed that he had left school at the age of 11 years and between the ages of 11 and 19 had looked after sheep on his family's small farm. Prior to his accident his life was good and he would socialise on Saturdays and Sundays. The remainder of the week he was working full-time with a considerable amount of overtime. He confirmed that he now went to a pub near the Bi-Lo supermarket 3 times a week for up to 1 to 1½ hours and would sit and talk with other Macedonians. He also confirmed that he visited his Polish neighbour 2 or more times a week for approximately half an hour at a time and that his neighbour visited him at least once a week. In addition the applicant's children come to visit him on average twice a week. His brother visits weekly.
Ms D´Cunha put to the applicant that his evidence was in direct contrast with the report of Dr Polonowita, dated 23 June 2000, in which Dr Polonowita stated:
. . . He does not leave the house except under extreme pressure. He is frightened to leave the home, he just sits in one place and spends his time at home.

The applicant agreed that this was incorrect. The applicant subsequently reversed his statement and indicated that Dr Polonowita had advised him to get out and become more active and he had done so. The applicant stated that he occasionally used a walking stick. He used the walking stick when he was feeling particularly dizzy and had not used it when he attended Dr Jackson. In answer to a direct question the applicant agreed he had not told Dr Jackson of his social outings and visits by his friend, children and brother as he had not been asked those questions. The applicant agreed that whilst living in Macedonia he had undergone surgery on his left foot in 1995. This operation had been unsuccessful and in fact his pain had increased since that time. He had forgotten to mention this to various doctors who had examined him.

Ms D´Cunha cross-examined the applicant regarding his ability to travel on 20-hour flights to Macedonia. He told the Tribunal that he always flew Air Lauda which had reclining seats enabling him to lie down.
In the course of giving his evidence to the Tribunal the applicant stated said that he frequently vomited blood. The Tribunal pursued this evidence and asked the frequency of this event. His answer indicated that this was an uncommon event and that he may vomit after he had spicy foods or had been drinking beer or wine.
The Tribunal adjourned following the applicant's evidence as necessary medical witnesses were not available on the day. The hearing was resumed on 2 August 2001.
Medical evidence
Dr Polonowita, the treating psychiatrist, gave evidence by telephone. Dr Polonowita affirmed the contents of his report dated 1 February 2001. Dr Polonowita had made a diagnosis of chronic anxiety disorder in stable chronicity. This diagnosis had been made at the original consultation on 9 February 2000. Following his assessment on that date, Dr Polonowita agreed he had discharged the applicant from his care because his condition could not be treated. On direct questioning by Ms Kerjus he agreed that he was now seeing the applicant on a regular basis but providing only supportive treatment. He had also prescribed an anti-depressant. Dr Polonowita described an anxiety disorder as being characterised by anxiousness and tenseness at all times, poor concentration and an inability to expend an intellectual effort on any task for any lengthy period of time.
In cross-examination by Ms D´Cunha, Dr Polonowita agreed he had first seen the applicant on 9 February 2000 upon referral from his treating general practitioner, Dr Vizec. The consultation had lasted approximately 30 minutes and the Doctor had been unable to obtain a clear history immediately. The interview had been conducted in English without the benefit of an interpreter in the Macedonian language. At that time the applicant was taking no medication. Dr Polonowita had described the applicant's symptoms as being pain all over his body and anxiety. At the time the applicant was taking no medication apart from analgesics. The referring letter from Dr Vizec had requested management of the applicant's chronic pain syndrome. When asked on how many occasions he, Dr Polonowita, had seen the applicant Dr Polonowita found that his clinical notes were deficient and that he only had notes from 9 February 2000 and whilst he thought he had seen him subsequently in the year 2000 there was no record of this. According to the Doctor's notes he had next seen the applicant on 23 March 2001. He was of the opinion that he had seen him at least twice in the interval between February 2000 and March 2001. Dr Polonowita agreed that he had sent a report dated 23 June 2000 to the applicant's solicitors. This referred only to the consultation of 9 February 2000. Eventually the Doctor decided he had only seen the applicant on one occasion in the year 2000, that being 9 February 2000. He had next seen him again in March 2001. Dr Polonowita subsequently withdrew that statement as he felt he must have seen the applicant again in the year 2000. Dr Polonowita stated that he was aware that the applicant had been on an invalid pension/DSP for some 13 years prior to his consultation. On direct questioning from Ms D´Cunha, Dr Polonowita stated that it was his usual practice to make a diagnosis within 30 minutes of first seeing a patient and that most psychiatric conditions cannot be treated and only supportive therapy provided. He was of the opinion that the whole of medicine was similar and that there is nothing that you can cure and doctors can only make the patient's life more comfortable.
Dr Polonowita agreed that his report stated that the applicant does not leave the house unless under extreme pressure, is frightened to leave home, just sits in one place and spends his time at home. He had also reported that the applicant feels frightened even to talk to family members. He avoids visitors, nor does he visit anybody. Ms D´Cunha put it to Dr Polonowita that the evidence before the Tribunal in April 2001 had documented the applicant's social activities. Dr Polonowita was of the opinion that this increase in socialising reflected a variation in the level of depression but did not impinge on the underlying anxiety state. Whilst the applicant's social life has improved, Dr Polonowita did not think this could be extended to his working life. On re-examination by Ms Kerjus, Dr Polonowita advised that he always recommended to depressed and anxious patients that they make an effort to improve their social life but this did not extend to their working life and in his opinion the applicant would never be able to work again because of his underlying anxiety disorder.
In response to a question from the Tribunal, Dr Polonowita stated he did not advise the applicant at all at his original consultation in February 2000 as he regarded him as untreatable.
When giving evidence to the Tribunal, the applicant's treating general practitioner acknowledged that the applicant had been a patient of Dr Vizec's clinic since 1986 but that he could not remember the details of early consultations. In addition the practice had been flooded and vandalised and a lot of files had been lost so that the only files available dated from September 1999. Dr Vizec stated that the applicant had been seen on 17 September 1999 and again on 20 September by a locum working at his practice (Dr N. Duggan). Dr Duggan had record notes of "Pain in left back leg, left shoulder, generalised long-standing anxiety, past history of ulcers, kidney stones and blood pressure". When seen again on 20 September Dr Duggan prescribed Panadeine Forte for renal colic. Dr Vizec first saw the applicant on 27 September 1999 subsequently prepared a medical report dated 5 December 2000 for the applicant's solicitors, Galbally & O'Bryan (exhibit A). Dr Vizec agreed that he made no reference to a longstanding anxiety disorder or any psychiatric condition until his notes of 22 November 1999 in which he noted the applicant had vague symptoms, pathetic affect and no objective findings. He stated he used the term "pathetic" in terms of sadness. He felt the applicant's mood status was reactive rather than primarily a mental disorder. He expanded on his opinion, which he summarised as an emotional component to his presentation. He agreed that in 1986 Mr K. King, orthopaedic surgeon, had examined the applicant and found him to be tense and anxious but seemingly a genuine man. Mr King had reported ". . . there is almost inevitably some functional element present as well". Dr Vizec denied he had any recollection of the applicant's psychological status in 1986. Dr Vizec could not recall having a conversation with Dr Paulson from HSA on 11 November 1999 as he had not noted the call but he had advised that if Dr Paulson had noted it in her records then it would have occurred. Dr Vizec was of the opinion that the applicant would not return to work, that he was not stable emotionally and that his condition had not changed appreciably over the past two years. However he was not willing to say that treatment would not result in improvement.
In cross-examination by Ms D´Cunha, Dr Vizec agreed that he had provided the treating doctor report for the applicant's application for the invalid pension in 1987 and that it was his signature on the treating doctor report. He was unable to recall these events. He was taken to his report of 4 October 1999 in which he had diagnosed degenerative joint disease. He agreed there was no mention of anxiety in that report. Dr Vizec also agreed that the report of the conversation with Dr Paulson was probably correct and that he may well have said that the applicant was "as well as me". However, he thought that this would be a reference to back problems as he, Dr Vizec, also suffered from significant back problems. He was unable to recall the conversation with Dr Paulson. Dr Paulson's notes had stated:
When I asked him by phone about Mr Dimitrievski's psychological status, his doctor said that he is as well as me.

Dr Vizec accepted that Dr Paulson's notes were probably correct.

Dr Vizec gave evidence that he had referred the applicant to Dr Polonowita after he had received an opinion from a rheumatologist who reported no markers of pathological process relating to joints or limbs. This had alerted Dr Vizec to the possibility that there might be psychiatric or emotional condition underlying the symptomatology given the lack of any positive physical findings. Dr Vizec agreed that on a physical basis ". . . there was nothing to preclude him [the applicant] doing physical work, other than heavy manual labouring work" (trans, 2.8.01, p.86). Despite the lack of physical findings Dr Vizec did not think the applicant's condition had improved with anti-depressive medication, nor would there be any improvement in the future. At no time had Dr Vizec noted any diminution in the applicant's mobility. He reiterated that this was the basis for referral to Dr Polonowita.

Dr Jackson gave evidence for the respondent. He acknowledged his familiarity with the assessment of persons' eligibility or suitability from a psychiatric point of view for a DSP. Dr Jackson had seen the applicant on 13 December 1999 at the request of HSA and saw him for a period of one hour. In examination-in-chief he reported difficulty in obtaining an accurate history as the applicant had indulged in a constant flow of talk in Macedonian which made the interpretation difficult. Dr Jackson was unable to detect any lack of concentration and also noted that the applicant moved in a "brisk athletic manner with no evidence of pain or disability". Whilst the interview was conducted with the assistance of a Macedonian interpreter, Dr Jackson noted that at times the applicant answered a question before waiting for the interpreter to translate. He deduced from this that the applicant did have a reasonable understanding of the English language. Dr Jackson found "no real evidence of depression or other major psychiatric conditions". He enlarged on this noting that he saw no signs of anxiety or depression but that the applicant appeared to be describing anxiety type symptoms in the form of dizziness, collapse and frequent reporting to emergency departments of public hospitals. Dr Jackson felt these were panic attacks, that is acute anxiety. This he interpreted as somatasisation of a chronic pain syndrome. At the time of the interview 13 December 1999 the applicant denied he was on any psychiatric medication. Dr Jackson noted in a report from Dr Vizec that the latter was of the opinion that the applicant did not suffer from a psychological problem. Dr Jackson was of the opinion that in terms of a psychiatric illness he could discover no such illness that would cause the applicant to be unfit for work.
Ms D´Cunha took Dr Jackson to Dr Polonowita's report. Dr Jackson did not agree with Dr Polonowita's opinion that the applicant's concentration was extremely poor. At this point the Tribunal pointed out to Dr Jackson that the interview with Dr Polonowita had been conducted in English without the benefit of a Macedonian translator. Dr Jackson agreed that there might have been some hesitancy related to the fact that the interview had been conducted in the English language. Dr Jackson disagreed with Dr Polonowita's diagnosis of February 2000 and contained in his written report of 23 June 2000, wherein Dr Polonowita diagnosed mild to moderate depression and an anxiety disorder. Dr Jackson regarded Dr Polonowita's comment that the disease was of stable chronicity and untreatable as being an extraordinarily bold and brave thing to say. This was particularly so in the first consultation with Dr Polonowita which was of 30 minutes duration. Dr Polonowita's extrapolation that the applicant had been suffering from anxiety, which had not changed over a period of 14 years, was regarded by Dr Jackson as extreme speculation or guessing. Dr Jackson advised there is treatment for chronic anxiety disorder. Treatment consists of medication and supportive therapy and this generally resulted in a response within a period of weeks. Dr Polonowita had reported that the applicant avoids meeting other persons and stays at home in a state of isolation. Dr Jackson termed this behaviour as social phobia.
In cross-examination by Ms Krejus, Dr Jackson confirmed an anxiety disorder can change in form and severity and generally fluctuates. Dr Jackson stated he had not obtained a history suggestive of panic attacks. However the episodes described by the applicant during the giving of his evidence sounded like a panic attack in Dr Jackson's opinion. Ms Krejus suggested that Dr Jackson's practice was predominantly preparing reports for the Department of Family and Community Services ("the Department"). Dr Jackson denied that this was correct. He reiterated that he was an independent psychiatrist, asked to prepare a report on this occasion for the Department. In further cross-examination Dr Jackson reiterated that the applicant had subjective feelings of an anxiety type which did not amount to a diagnosis of an anxiety condition. He explained that an anxiety disorder required a cluster of anxiety type symptoms in a particular manner which he did not find present in the applicant.
Ms Krejus informed Dr Jackson that in 1986 specialists had assessed the applicant as suffering from an anxiety neurosis. The Tribunal requested Ms Krejus to take it to these original psychiatric opinions. The T documents did not contain any psychiatric report, the diagnosis of anxiety neurosis having been made by a Commonwealth medical officer with basic medical qualifications. Ms Krejus also relied on the report of Mr King suggesting there was a psychiatric disorder. The Tribunal pointed out that Mr King is an orthopaedic surgeon. Ms Krejus acquainted Dr Jackson with the fact that, since the applicant returned to see Dr Polonowita on a regular basis from March 2001, it would appear that he has been socialising with friends and relatives to a far greater extent. In addition Dr Jackson was informed that the applicant was now taking an anti-depressant. Dr Jackson pointed out that anti-depressants were usually not effective in the treatment of anxiety. Dr Jackson said that this information did not affect his opinion as his opinion was given in the year 1999 prior to any treatment being initiated. Dr Jackson again stated that he did not make a diagnosis of an anxiety disorder (trans, p.114). Even if the applicant was suffering from panic attacks or a true anxiety disorder, Dr Jackson felt the best treatment was a return to work.
The Tribunal asked Dr Jackson whether or not in his opinion 3 episodes resembling a panic attack in a period of 14 months was of any significance. Dr Jackson again stated a return to work would be beneficial.
Documentary evidence
The T documents contain many medical reports commencing in 1986 when the applicant was first granted an invalid pension. This was granted essentially on the basis of a report by Dr Landsberger, Commonwealth medical officer, who reported neck and back pain with recurrent headaches, with the back pain radiating to the right leg. This pain was aggravated by movement. He described the applicant as tense, neurotic and/or anxious. He advised that the applicant's pain and extreme anxiety rendered him unemployable. In the treating practitioner's report of 18 August 1986, Dr Vizec did not mention any anxiety disorder but merely reported chronic neck and back pain with periodic acute exacerbation. There was a treating doctor's report from Macedonia dated 12 December 1994 which confirmed the back pain and a duodenal ulcer and found the applicant unfit for physical work. Reports received over the next few years up until 1999 indicated continuing back and neck pain with a lack of abnormal physical findings and no radiological confirmation of joint or disc pathology of any degree of severity. It was this lack of physical findings that led Dr Vizec, the treating general practitioner, to seek a rheumatology opinion which confirmed that there were no abnormal physical findings. Acting on Dr Kemp's report Dr Vizec, for the first time, referred the applicant to a psychiatrist (Dr Polonowita 9 February 2000). Dr Polonowita made a diagnosis of chronic anxiety disorder of chronic stability. Dr Polonowita did not consider the diagnosis of chronic pain syndrome.
The Relevant Legislation
The following are the relevant provisions of the Social Security Act 1991 ("the Act"):
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.
Note 1: for "Australian resident", "qualifying Australian residence" and "qualifying residence exemption see section 7".
Note 2: for Impairment Tables see section 23(1) and Schedule 1B.
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(5)       In this section:
. . .
"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 Department's Case

The Department acknowledges that the applicant has an illness in the form of chronic neck, back and leg pain. This has been previously assessed as a disability attracting 10 points. Thus section 94(1)(a) of the Act is satisfied but section 94(1)(b) is not. Given the lack of a psychiatric diagnosis no disability points could be assigned and should the question of continuing inability to work be raised section 94(2) is attracted and requires that the impairment of itself is sufficient to prevent the person from doing any work within the next 2 years. As any psychiatric disorder, if one exists, was not under treatment at the time of cancellation of the DSP and any treatment did not commence until March 2001, it is not possible to allot a score to any psychiatric illness as it has not been diagnosed, treated or stabilised.
The Applicant's Submissions
Counsel for the applicant argued that the applicant had suffered from a psychiatric problem, documented by Dr Landsberger, a general practitioner, on 15 August 1986. This was described as anxiety neurosis minor. Ms Kerjus did acknowledge that the applicant had not been treated for any psychiatric disorder until his pension was reassessed in late 1999. Ms Kerjus urged the Tribunal to be reluctant in accepting Dr Jackson's opinion of December 1999. She did however agree that the condition, if it exists, had not been treated nor had it stabilised. Ms Kerjus argued that the applicant's physical symptoms had been assessed as a 20 per cent disability according to WorkCover criteria by Mr Mangos and at 20 points by the applicant's chiropractor. It was argued that Mr Kudelka, orthopaedic surgeon, had given a rating for the back, neck and leg pain of 20 points, however this report had not been tendered by the applicant.
Decision
Based primarily on the medical opinions, the Tribunal finds that the applicant does have a physical disorder in the form of a chronic pain syndrome resulting in pain in his back, neck and right leg and satisfies section 94(1)(a) of the Act. Any psychiatric disorder which may exist, and there is dissension amongst the expert witnesses, has not been shown to be fully diagnosed, treated and stabilised for a period of two years. On the evidence provided to the Tribunal treatment commenced in March 2001 a considerable time after the applicant's DSP was cancelled. No disability points can be allotted.
The majority of the medical evidence indicates that there is no absolute inability to work and many of the medical opinions suggest that the applicant could return to his former employment or following suitable vocational training could undertake work within the next two years (section 94(2) of the Act). The decision of the SSAT dated 13 September 2000 is affirmed.
I certify that the twenty-nine [29] preceding paragraphs are a true copy of the reasons for the decision herein of
Miss E.A. Shanahan, Member
(sgd)     Catherine Thomas
            Clerk
Date of Hearing:  18 April 2001 and 2 August 2001
Date of Decision:  1 November 2001
Counsel for the Applicant:           Ms L. Krejus
Solicitor for the Applicant:           Messrs Galbally & O'Bryan
Solicitor for the Respondent:        Nil — Ms P. D'Cunha, Advocate with Centrelink

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Dimitrevski and Department of Family and Community Services [2001] AATA 915

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