Kazan and Secretary, Department of Employment and Workplace Relations
[2006] AATA 294
•31 March 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 294
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/1540
GENERAL ADMINISTRATIVE DIVISION ) Re SAMIRA KAZAN Applicant
And
SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Dr I. Alexander, Member Date31 March 2006
PlaceSydney
Decision The Tribunal affirms the decision under review. [SGD] Dr I. Alexander
Member
CATCHWORDS
SOCIAL SECURITY- claim for disability support pension – permanent conditions - no continuing inability to work – psychiatric condition - not diagnosed, treated and stabilised in relevant timeframe – decision affirmed
Social Security Act 1991 – s. 94, and Schedule 1B
Social Security (Administration) Act 1999 - Schedule 2
Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444REASONS FOR DECISION
31 March 2006 Dr I. Alexander, Member 1. Mrs Kazan is a 43 year old woman who was born in Lebanon and migrated to Australia at the age of 15. She has 6 children, now aged 12 to 22 years and has not worked in paid employment for about 22 years. She currently receives a partnered parenting payment. Mrs Kazan has aortic valve disease that was diagnosed more than 20 years ago when her eldest child was about 11 months old.
2. On the 9th November 2004 Mrs Kazan lodged a claim for a disability support pension. Centrelink rejected this claim. This decision was subsequently affirmed by the Social Security Appeals Tribunal on the 4th November 2005 and is now the subject of this review by the Administrative Appeals Tribunal.
3. At the time of the application the disabilities claimed included heart problem (aortic valve disease), high blood pressure (hypertension), anxiety attacks, stress, stomach nerves and back pain.
4. Following review of the medical evidence and assessment by two rehabilitation consultants, mixed aortic valve disease, hypertension and lumbar spine condition were accepted as permanent conditions with a combined impairment rating of 30.
5. Anxiety, stress and stomach symptoms were not considered to be permanent conditions.
6. Notwithstanding the impairment rating Mrs Kazan was assessed as not satisfying the requirements to have a continuing inability to work.
ISSUES
7. At the hearing, it was agreed that Mrs Kazan met the requirements of subsections 94(1)(a) and 94(1)(b) of the Social Security Act 1991 (“the Act”).
8. Therefore the issues in this matter that need to be considered are whether at the material time, that is, at the time of application or in the subsequent 13 weeks (Schedule 2 of the Social Security (Administration) Act 1999) did Mrs Kazan have a continuing inability to work because of her impairment (per section 94(1)(c) of the Act) and were the additional conditions that she had claimed permanent conditions.
MRS KAZAN’S EVIDENCE
9. Mrs Kazan was self represented and gave oral evidence with the assistance of an interpreter. She came across as an honest and sincere woman and was obviously quite anxious throughout the hearing. Her evidence focussed on numerous symptoms that she claimed had been present for up to 20 years. The main symptoms included anxiety, pain, shortness of breath and fatigue and difficulties with concentration. She also indicated that she had problems with using public transport. During the course of her evidence it became clear that Mrs Kazan has been significantly limited by anxiety and an inability to leave her home without being accompanied. Her evidence with reference to her permanent conditions was vague and not convincing. She indicated that in recent years she had consulted several general practitioners about her psychological symptoms and was told that it was due to ‘nerves’. No diagnosis was made and no therapy or medication was prescribed.
10. When asked that, if an appropriate position could be found, whether she would consider testing her ability with some light work, Mrs Kazan replied “I can’t even tolerate what’s happening to me in my own house. So how can I work outside the house?”
11. Following a consultation with a psychologist, Dr Moustapha, in January 2006 Mrs Kazan has attended several treatment sessions with some benefit. Apart from herbal preparations she has not been prescribed any medication for her psychological problems.
MEDICAL EVIDENCE
12. Dr Macauley , Cardiologist, has been treating Mrs Kazan since the diagnosis of her aortic valve disease. He provided three reports. In the first dated 17th June 2003 he confirmed that Mrs Kazan had mixed aortic valve disease and hypertension that was being treated with medication. He also noted that she had been investigated for epigastric discomfort with gastroscopy and this was apparently normal. Dr Macauley opined “many of her symptoms I think relate to stress and her domestic circumstances.”
13. In the second report dated 24th May 2005 Dr Macauley noted that Mrs Kazan had experienced reduced energy and more breathlessness. He also noted that there had been some deterioration in the measured cardiac parameters but that aortic valve replacement would not be required for some years. On this occasion he concluded, “The issue is also exacerbated by the fact that she has a significant anxiety state. Her cardiac condition precludes her from being employed in any gainful occupation.”
14. In the third report dated the 22nd February 2006 Dr Macauley noted that in the previous 12 months Mrs Kazan “has had a lot of problems in terms of anxiety, palpitation, insomnia and depression” and that her symptoms of “breathlessness and chest heaviness and tightness” usually occurred “at times of domestic stress or anxiety”. He concluded, “the degree of aortic valve disease remains moderate at most. I don’t think that this is impacting significantly on her functional capacity. I think most of her problems relate to her psychological status and she certainly is quite distressed and severely incapacitated from this”.
15. Dr Guirgis , Orthopaedic Surgeon, provided a report dated 16th March 2005. He reported a history of long standing back problems with symptoms of lower back pain and stiffness of varying intensity with intermittent radiation to the right buttock or leg. He also noted a history of “symptoms of chronic pain /anxiety/depression.”
16. On examination, Dr Guirgis found spasm of paraspinal muscles, restricted movement of the lumbar spine and tenderness over the lower lumbar spines.
17. Dr Guirgis concluded that the clinical picture “is consistent with chronic mechanical derangement of the lumbar area of the spine caused by discopathic and spondylotic changes”. In supporting his opinion he referred to CT scan evidence.
18. Dr Abeywickrema, Radiologist, reported on 24th January 2005, following an x-ray of the lumbar spine, that “there is slight reduction in the intervertebral disc height at L4/5 and L5/S1. No significant spondylosis, fracture, pars defect or destructive bone lesion”.
19. Dr Travers, Radiologist, reported on 27th January 2005, following a CT of the Lumbar Spine, that “there is some minor degenerative disc bulging at L4/5, but no focal disc herniation is seen. At L5/S1, there is a slightly prominent midline bulge posteriorly. This is indenting the thecal sac but is clear of the nerve roots. No other disc lesion is seen”.
20. Dr Moustapha, Psychologist, provided a report dated the 25th January 2006. He elicited a history that included loss of appetite, insomnia, fatigue and diminished ability to concentrate. After applying several psychometric tests he diagnosed anxiety and panic attacks, chronic depression, adjustment disorder and post- traumatic distress disorder. He initiated treatment sessions.
21. Dr Makarie, General Practitioner, provided a report dated 22nd February 2006 This report did not provide any additional relevant information.
REHABILITATION CONSULTANTS
22. Since January 2005 Mrs Kazan has been assessed face to face by three different rehabilitation consultants from Advanced Personnel Management. Essentially they reached similar conclusions which were that Mrs Kazan’s psychological symptoms provide a major barrier to employment and that she would benefit from treatment as well as vocational rehabilitation.
CONSIDERATION
23. Mrs Kazan is a 43 year old woman of Lebanese background who has not worked outside the home for more than 20 years. She appears to have no special skills and has a limited capacity to communicate in English.
24. It is common ground that at the material time Mrs Kazan had several conditions, namely, mixed aortic valve disease, hypertension and a lumbar spine condition which were permanent and which qualified her for a disability support pension.
25. It is also common ground that her impairment scored 30 points under the Impairment Tables.
26. I must now consider whether Mrs Kazan had a continuing inability to work (per section 94(1)(c) of the Act) because of her impairment.
27. In doing so I must consider whether the impairment of itself had such an impact on her capacity for work that it prevented her from doing work available anywhere in Australia in the next 2 years (section 94(2)(a) of the Act), being work of a kind which she is capable of performing without the need for retraining (see Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444).
28. There is clearly evidence that suggests Mrs Kazan has problems that impact on her in such a way that will affect her ability to work. What is not so clear is whether the conditions that have led to the impairment that qualify her for a pension are in themselves sufficient to prevent her from doing any work.
29. Notwithstanding the ambiguity in his second report I am satisfied that Dr Macauley’s evidence supports the conclusion that the main barrier preventing Mrs Kazan from working is her psychological state and not her aortic valve disease or hypertension.
30. With regard to the lumbar spine I am not satisfied that this condition prevents Mrs Kazan from working. Her own evidence on this issue was vague and unconvincing.
31. I found Dr Guirgis’ report superficial and unpersuasive. The radiological evidence appeared not to fully support his conclusion.
32. It follows that I am not satisfied that Mrs Kazan had a continuing inability to work because of the impairment she suffered at the time of her pension application.
33. In light of the evidence that suggests Mrs Kazan has significant psychological problems and the report of Dr Moustapha I am bound to consider whether at the material time Mrs Kazan had a psychiatric impairment.
34. In assessing the impact of a purported medical condition for the purpose of qualifying for a disability support pension a rating for loss of functional capacity must be assigned. A rating can only be assigned if the condition is a fully documented and diagnosed condition that “has been investigated, treated and stabilised” (Schedule 1B of the Act).
35. It can be argued that as of January 2006 Mrs Kazan has been diagnosed as having a psychiatric condition that may cause impairment sufficient to qualify for a disability support pension. Notwithstanding the longevity of her symptoms I am satisfied that at the time Mrs Kazan made an application for the disability support pension, the subject of this appeal, she did not have a psychiatric condition that would satisfy the conditions of the Act. There was no diagnosis and no treatment.
36. It follows that Mrs Kazan does not qualify to receive a disability support pension.
DECISION
37.The decision under review is affirmed.
I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Dr I. Alexander, Member:
Signed: A. Garcia .....................................................................................
Associate
Date of Hearing 15 March 2006
Date of Decision 31 March 2006
Representative for the Applicant self representedAdvocate for the Respondent Ms P. Sharma
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