Faysal and Secretary, Department of Family and Community Services

[2002] AATA 539

DECISION AND REASONS FOR DECISION [2002] AATA 539

ADMINISTRATIVE APPEALS TRIBUNAL      )

)     No  N2000/1743

GENERAL ADMINISTRATIVE DIVISION          )          

Re      WISSAM FAYSAL  

Applicant

And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        

Respondent

DECISION

Tribunal       Senior Member M D Allen

Date21 June 2002

PlaceSydney

ADMINISTRATIVE APPEALS TRIBUNAL  )         No N2000/1743
  )  
GENERAL ADMINISTRATIVE DIVISION     )

Re:     WISSAM FAYSAL

Applicant

And:     SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal              Senior Member M D Allen

Date  21 June 2002

Place                   Sydney

DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is AFFIRMED.

(Sgd)  M.D. ALLEN

.............................

Senior Member
CATCHWORDS

Social Security – Disability Support Pension. Assessment of degree of impairment. If condition not stabilised incapable of assessment. Specific orthopaedic Table 5 preferred to general Table 20 in assessing orthopaedic impairment. Disabilities arising after original determination not considered.

Social Security Act 1991 – s94; Schedule 1B

Freeman v Secretary, Department of Social Security 87 ALR 506

REASONS FOR DECISION

Senior Member M D Allen

1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Applicant of a copy of the decision that was in fact made, the Applicant pursuant to Sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Applicant a statement in writing of the reasons of the Tribunal for its decision.

1. The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

1. The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal's decision.

I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:

Senior Member M D Allen

Signed:         
          ..................................................................................……………………………….

Associate

Dates of Hearing  29 April 2002 and 21 June 2002
Date of Decision  21 June 2002
Counsel for the Applicant          Mr M Vincent

Solicitor for the Applicant           Mr B Georgiannis, Legal Aid Commission
Advocate for the Respondent    Mr G Lozynsky
  Department of Family and Community Services

DRAFT DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No 2000/1743
By MR M.D. ALLEN, Senior Member
FAYSAL and SECRETARY, DEPARTMENT OF
FAMILY AND COMMUNITY SERVICES
SYDNEY, 21 JUNE 2002

MR ALLEN:   By application made the 12th day of November 2000
the applicant sought review of a decision by a Social Security Appeals
Tribunal on 11 October 2000 that affirmed a prior determination
cancelling the applicant's disability support pension.  Section 94 of
the Social Security Act (1991) as amended sets out the criteria for the
grant of a disability support pension and reads inter alia:

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 a 20 points or more under the
    impairment tables; and
    (c)one of the following applies:
    (1) the person has a continuing inability to work.

Subsection (2) of section 94 sets out the definition of "continuing
inability to work in the following terms:

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;
    and
       (b)either:

(1)the impairment is of itself sufficient to prevent the
    person from undertaking education or vocational
    training or on-the-job training during the next two
    years; or

(2)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 two years.

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The applicant had been employed by the New South Wales State Rail
    Authority as a fettler and then as a tradesman assistant.  He was
    retrenched by that employer sometime in 1995.  Subsequent to that
    retrenchment he received awards of workers compensation for
    industrial deafness and a back injury.  At the time of the applicant's
    initial application for disability support pension in 1997 his treating
    general practitioner described the applicant's incapacities as, "back
    pain at multiple levels, tinnitus and vertigo, and elbow pain
    syndrome."  See document T5 page 35 of the documents prepared
    for the Tribunal pursuant to section 37 of the Administrative Appeals
    Tribunal Act 1975.  So far as that document is concerned the
    doctor's handwriting makes a full and accurate account impossible.
    There is however extensive medical reports dating from that period
    referable to the applicant's workers compensation claim.

On 27 November 1997 the applicant was examined by Dr Parhawk of
Health Services Australia.  In report dated that day Dr Parhawk
stated:

Based on today's assessment he has a permanent impairment
    of 20 per cent and I agree with his doctor that he is unfit for
    any work.  I also feel that his impairment will prevent his
    vocational training and that he is unfit for work and training
    and should be reassessed in two years time.

See document T11 page 83.  The sole medical condition regarded as
permanent by Dr Parhawk was the applicant's back pain, to which Dr
Parhawk ascribed a loss of half normal range of movement and thus
an impairment of 20 per cent under table 5.2 in the then tables to
schedule 1B of the Social Security Act 1991. Attached to the report
of Dr Parhawk is a list of medications apparently taken by the
applicant at that time.  Significantly, given the later reports of Drs
George and Dinnen the applicant was apparently prescribed
Prothiadine, which is an antidepressant.

Of the medical reports available at that time report of an MRI scan of
the lumbar spine, undertaken on 19 June 1997 by Dr Howang
concludes by stating:

There are multiple disk protrusions at L3-4, L4-5, and L5S1
    levels with evidence of annular tear at L3-4 and L5S1 levels.
    The secal sac is mildly indented at these levels.

See document T6.  In report to the applicant's then solicitors dated
5 November 1996 orthopaedic surgeon Dr Mahoney states inter alia:

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Examination of the back.  There was a thoracic kyphosis.
    Spinal movements were possible, inflection with fingertips
    reaching below the knee level.  Extension appeared restricted
    in extremes.  Lateral flexion and rotation appeared to be within
    normal limits.

Later in his report Dr Mahoney stated:

I advised him to wear a lumbar support and restrict his
    activities to activities not involving significant bending or lifting.

Dr Mahoney also reported under the heading Examination of the Back
as follows:

Little movement was carried out because of guarding.

Dr Mahoney then concluded his report by stating:

He has been considered fit for duties as outlined.

On 24 September 1997 the applicant was examined by Dr Stukey,
orthopaedic surgeon, at the request of his solicitors.  In report of that
day Dr Stukey states inter alia:

On examination he could perform a good range of movements
    of his lumbar spine in all directions.

And after reviewing the MRI scan of 19 June 1997 Dr Stukey
opined:

However, there seems little doubt at this stage this man is unfit
    to return to the work situation which would require strenuous
    exertion of his neck, particularly if this were to involve
    significant amounts of bending, lifting or twisting.

The impressions I get from the above reports is that in 1997 the
applicant was not fit for his former occupations but was fit to
undertake what are often referred to as light duties.  Both orthopaedic
surgeons noted a greater range of movement in the lumbar spine than
Dr Parhawk.

The applicant's entitlement to disability support pension was subject
to review in November 1999.  In a form completed by the applicant
he listed his disabilities as:

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Discopathic back pain, sciatica, hearing loss requiring hearing
    aid, fatigue ability and depression secondary to chronic pain
    syndrome.

On 14 February 2000 the applicant was examined by Dr Phillips of
Health Services Australia.  In dealing with the various ailments of
which the applicant complained Dr Phillips found that the applicant
suffered:

(1) from an L4-5 and L5S1 disk prolapse with a loss of range of
    movement of 25 per cent plus pain.

Under table 5.2 of the impairment table this equated to 10 per cent.

(2) a 12 per cent binaural hearing loss, which was a nil impairment
    on table 12.

Dr Phillips concluded his report by stating:

This man is capable of suitable light work.  He is also highly
    motivated to return to some work and would be a good
    candidate for rehabilitation.  He does appear to clinically have
    improved since the grant of DSP in 1997.

There appears to have been no assessment by Dr Phillips of the
applicant's depression.

As a result of Dr Phillips' report the applicant's disability support
pension was cancelled with effect from 3 March 2000.  On 4 April
2000 the applicant was interviewed by an authorised review officer
of the respondent, with the assistance of an Arabic interpreter.  At
that interview the applicant complained of back pain, hearing loss and
also knee pain.  In these proceedings the applicant has also
complained of a pain in his knees.

However, as was pointed out in Freeman v Secretary, Department of
Social Security, 87 ALR 506, in cases such as the present where the
decision is to cancel a pension the jurisdiction of the Tribunal is
narrower in ambit than in reviewing a decision not to grant a pension.
Once the Tribunal decides that the decision to cancel was the correct
or preferable decision at the date of cancellation, then it has no
jurisdiction to consider changes in circumstances since that date.
Therefore, if the applicant has, since 3 March 2000, developed knee
pain, that is irrelevant to my decision.

So far as any psychiatric condition is concerned, I find that disability
is to be considered as a complaint of a psychiatric condition was

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made at the time of Dr Phillips' review in February 2000 and not
addressed by him.  The elbow pain was first complained of by the
applicant in 1997 - see T60 at page 48.  So far as this condition is
concerned I prefer the report of Dr Rose, who recorded what the
applicant himself said about his elbow pain to that of Dr Lewis Enright.
Dr Rose's report is exhibit R3, and he states therein:

He complains of right elbow pain.  He stated that this is a
    minor symptom he has had for years and has been able to
    work.  He states it causes discomfort but is able to complete
    tasks.  There was no demonstrable impairment on examination.
    He had full elbow movement and strength.  His hand grip was
    normal, therefore there was no demonstrable impairment,
    which is a requirement when assessing points.

Currently the applicant is being treated by a Dr Benjamin, who
diagnosed a post-traumatic stress disorder in addition to a major
depressive disorder.  Dr Benjamin does not possess formal
qualifications in psychiatry and I therefore prefer the reports of Drs
George and Dinnen who have recognised qualifications in that
discipline.

Dr George interviewed the applicant with the assistance of an
interpreter on 24 January 2002.  His report of 31 January 2002 is
exhibit R5.  In that report Dr George opined:

At the present time I am not convinced that Mr Faysal has an
    ongoing psychiatric disorder constituting post-traumatic stress
    disorder.  He may have elements of it but one would have
    thought that if he was really concerned about his symptoms he
    would have continued on with medication under the care of Dr
    Benjamin.  Alternatively, at the same time he said that he still
    has interests such that he takes an interest in his children's
    activities and studies.  He goes shopping to local shops and
    drives his car.  He goes to soccer games when they are on,
    and indicated that he is actively involved in watching and
    following soccer and other sports.  This is not the story of a
    man who suffers from anxiety and depression and has become
    socially withdrawn.

In evidence Dr George stated that he disagreed with Dr Dinnen
regarding the applicant's suffering from an adjustment disorder.  In
cross-examination he stated that his opinion was that the applicant
had a pain disorder which was not chronic.  However he did concede
that as with Dr Dinnen he considered that the applicant had elements
of a post-traumatic stress disorder.  Dr Dinnen, in his report of 9
November 2001, exhibit A12, opines that:

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More importantly the patient does provide symptoms consistent
    with depressive disorder.  I therefore believe that there is
    clinical evidence gained at this interview and from perusal of
    the documentation to support the diagnosis of adjustment
    disorder with depressed mood consequent to the back
    condition and ongoing disability.  This is superimposed on a
    reasonably well compensated chronic mild post-traumatic
    stress disorder.  Both of these conditions are stable and are
    well managed by the local doctor, and I would not believe that
    any significant improvement can be achieved even by intensive
    psychiatric care.  I believe the condition is no different today
    than it was when his pension was cancelled in March 2000.

Cross-examined, Dr Dinnen stated that on its own the applicant's
depressive disorder would not prevent him from working.  In evidence
the applicant stated that he is a vice-president of a junior soccer club
and attends training and speaks to the parents.  He attends a mosque
regularly and accompanies his wife shopping.  Although he cannot
drive long distances he does drive his daughter to the railway station.
He stated that he "gets on" with his children okay, but does tend to
over react.

Given the above, I am persuaded by the evidence of Dr George and
Dr Dinnen, that the applicant does not have a post traumatic stress
disorder, but does have elements of it.  That the applicant as long ago
as November 1997 was apparently prescribed Profiadine indicates
that depression has been present at least since then.  I am therefore
persuaded by Dr Dinnen, given his report in evidence, that the
applicant does suffer from an adjustment disorder with depressed
mood and this was present as at 3 March 2000.

The respondent submitted that the applicant's psychiatric state was
not capable of being assessed for the purposes of these proceedings,
referring to paragraphs 4 and 5 of the introduction to schedule 1(B)
of the Social Security Act. Those particular paragraphs to the tables
of the assessment of work related impairment, read inter alia:

4.  A rating is only to be assigned after a comprehensive
    history and examination.  For a rating to be assigned, the
    condition must be a fully documented diagnosed condition
    which has been investigated, treated and stabilised.

Paragraph 5 then continues:

The condition must be considered to be permanent.  Once the
    condition has been diagnosed, treated and stabilised, it is
    accepted as being permanent if in the light of available

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evidence it is more likely than not that it will persist for the
foreseeable future.  A condition may be considered fully
stabilised if it is unlikely that there will be any significant
functional improvement with or without reasonable treatment
within the next two years.

The applicant has been prescribed anti-depressants in the past by his
general practitioner, but that general practitioner had never referred
the applicant for formal psychiatric assessment or treatment. From
this I infer the general practitioner did not regard the applicant's
depression as disabling.  The first time the applicant was assessed by
a person having formal qualifications in psychiatry was by Dr Dinnen
for the purposes of these proceedings.

I reject the argument of the applicant's counsel that the words "the
introduction to the impairment tables" should not be given their full
force and effect.  The approach taken is a technical one in that the
said impairment tables require an assessment of the degree of
permanent impairment, the stress being on the words "degree" and
"permanent".  Obviously, a degree of impairment cannot be
permanent if full treatment has not commenced.  In this matter
although prescribed anti-depressants by his general practitioner, the
applicant had not completed the regime required, see Dr George's
history and the treatment, in any event, would appear to have been
inadequate.

As stated the first time the applicant was assessed by a qualified
psychiatrist was when he saw Dr Dinnen for the purposes of these
proceedings.  In these circumstances I am not prepared to find that
as at the date of cancellation of his disability support pension any
particular degree of impairment was permanent.  If I was to assess a
degree of impairment regard must be had to the opinion of Dr Dinnen
who assessed the applicant at ten percent under table 6.  To rate at
ten percent, the criteria are moderate and regular symptoms and
generally functioning with some difficulty.

For example, noticeable reduction in social contacts or
    recreational activities or the beginnings or some interference
    with inter-personal or work place relationships, may have
    received psychiatric treatment which has stabilised the
    condition, minor effects on work attendance and/or ability to
    work, but the impairment would not prevent full time work, for
    example, short periods of absence from work.

This must be compared to the criteria for a nil assessment which
reads:

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Mild but regular symptoms which tend to cause subjective
    distress.  On most occasions able to distract themselves from
    this distress.  Minimal interference with function in everyday
    situations, exacerbation of symptoms may cause occasional
    days off work, for example there may be some loss of interest
    in activities previously enjoyed.  There may be occasional
    friction with family, colleagues or friends.  Medical therapy or
    some supportive treatment from treating doctor may be
    required.

In making any assessment one must be cautious not to decrease the
degree of impairment because an applicant has a supportive family.
This seems to be the case here.  I was impressed by the evidence of
Mr Taybar who has known the applicant and his family since 1988.
Mr Taybar said, amongst other things, that some four to five years
ago the applicant assisted him in starting a soccer club and there was
a lot of work to be done and he worked with the applicant for periods
of four to five hours at a time, indeed at times up to eight hours.

He has noticed that the applicant over the last two years can become
very moody and he has had telephone calls from the applicant's wife
to come over and calm him down.  He said of the applicant's wife
that she accepts a lot, particularly in the last couple of years.  He
was, however, vague as to just how often these events occurred.
This can be compared therefore with the applicant's evidence as to
his attendance at soccer training, at his mosque, that he accompanies

his wife shopping.  All in all, I consider that even currently his degree
of impairment from psychiatric illness does not amount to a full ten
percent.

Dr Lewis Enright considered that the applicant's degree of impairment
from back injury equated to a rating of 20.  Dr Lewis Enright preferred
to assess the applicant under table 20 which relates to miscellaneous
conditions rather than table 5 which is the specific orthopaedic table.
At paragraph 8 to the introduction to the tables for assessment it is
stated:

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 tables that otherwise would be used to assess
    the loss of function to which the pain relates.

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When one looks at table 20 it is apparent that it is a very general
    table.  Indeed the heading is miscellaneous malignancy, hypertension,
    HIV infection, morbid obesity, heart liver kidney transplants,
    miscellaneous ear, nose, throat conditions and chronic fatigue or pain.
    This must be compared say with the words which introduce table 5,
    a specific orthopaedic table, "The determination of spinal impairments
    must be based on a demonstrable loss of function".  Then as table
    5.2 points out:

A spinal mobility is a composite movement.  This table
    measures overall mobility of the trunk including hip movement
    and is not intended to measure mobility of individual spinal
    segments.

In this matter, I am not persuaded that the applicant has chronic
entrenched pain.  In evidence in chief, Dr Lewis Enright was critical
of the assessment tables and indeed I found that the whole of his
evidence was coloured by a tendency to fight the tables and advance
his client's case.  In my opinion, the proper table under which to
assess the applicant's back disability is the specific table 5 and the
opinions of the orthopaedic surgeons as to range of movement, as is
the opinion of Dr Phillips of Health Services Australia, equates to the
applicant having a ten percent impairment of his back.

In stating that, it is quite clear that for the purposes of table 5 it is
overall mobility that is measured, including hip movement.  I am
satisfied, given the reports of Dr Lewis Enright, together with the
evidence of the applicant and the other material before me that this
applicant will never be able to attract an employer willing to employ
him.  To cause this man to continue a futile search for employment
is both farcical and cruel.  I am however constrained by section 94 of
the Social Security Act 1991 to consider, first of all, his impairment
rating and on that basis, as that rating amounts to ten in total, the
decision under review is affirmed.

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