Khazma and Secretary, Department of Family and Community Services

[2003] AATA 517

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 517

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2002/729

GENERAL ADMINISTRATIVE DIVISION		)
Re		ABDUL KHAZMA

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Dr J D Campbell, Member

Date4 June 2003

PlaceSydney

Decision The Tribunal sets aside the decision under review and in substitution thereof determines that the Applicant qualifies for the payment of a disability support pension from 26 February 2001.

Dr J D Campbell
  Member

CATCHWORDS

Social Security - disability support pension - multiple physical and psychiatric improvements - assessment - continuing inability to work

Social Security Act 1991, section 94, Schedule 1B.

REASONS FOR DECISION

Dr J D Campbell, Member                 

1.      In this matter, Mr Abdul Khazma (“the Applicant”) seeks a review of the decision of the Social Security Appeals Tribunal (“SSAT”) dated 29 April 2002, which affirmed the decision of an authorised review officer dated 3 October 2001 to reject the Applicant’s claim for disability support pension (“DSP”).  This latter decision had affirmed an earlier decision dated 6 April 2001 by a delegate of the Secretary, Department of Family and Community Services (“the Respondent”) to reject the Applicant’s claim for disability support pension dated 26 February 2001.

2.      A hearing was held before the Tribunal on 11 April 2003 at which the Applicant was represented by Mr Vincent of Counsel and the Respondent by Ms Buckley, an advocate, from Centrelink.  Oral evidence was presented to the Tribunal by Mr Khazma, Doctor D A Lim and Doctor Keen.

3.      The following documentation was admitted into evidence before the Tribunal.

Exhibit No.	Name of Documents	Date
T1 - T18 P1 - 130	Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
A1	Applicant’s Statement of Facts and Contentions	5 March 2003
A2	Medical Report of Doctor Lim	4 September 2002
A3	Supplementary Medical Report of Doctor Lim	5 March 2003
A4	Medical Report of Doctor Dinnen	25 October 2002
A5	Medical Report of Doctor Dinnen	7 April 2003
A6	Medical Report of Doctor Samad	13 March 2003
A7	Audiogram of Applicant by Doctor Chang	31 May 1999
A8	Medical Report of Doctor Samad	30 January 2002
R1	Respondent’s Statement of Facts and Contentions including bundle of documents of T documents of an earlier hearing	3 April 2002
R2	Medical Report Doctor Keen	20 February 2003
R3	Medical Assessment Report	30 August 2001

issues

4.      The relevant issues in this matter are:

(1) Whether the Applicant, Mr Khazma, has a physical, intellectual or psychiatric impairment and that impairment is 20 points or more under the impairment tables in schedule 1B of the Social Security Act 1991; and

(2)      If so, whether or not he has a continuing inability to work because of the impairment because –

·           the impairment of itself prevents him from doing any work for at least 30 hours per week at award wages within the next 2 years; and either

·           the impairment of itself is sufficient to prevent him from undertaking educational or vocational training or on the job training during the next 2 years; or

·           such training is unlikely (because of the impairment) to enable him to do any work for at least 30 hours per week at award wages within the next 2 years.

LEGISLATION:

5.      The relevant legislation in this matter is the Social Security Act 1991 (“the Act”) and in particular section 94 and the Tables for the assessment of work related impairment for disability support pension (‘Schedule 1B Impairment Tables’).

Section 94 of the Act provides:

“SECTION 94 QUALIFICATION FOR DISABILITY SUPPORT PENSION – CONTINUING INABILITY TO WORK

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.

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.

94(3)In deciding whether or not a person has a continuing inability to work because of impairment, the Secretary is not to have regard to:

(a)the availability to the person of educational or vocational training or on-the-job training; or

(b)if subsection (4) does not apply to the person – the availability to the person of work in the person’s locally accessible labour market.

94(4)For the purposes of subparagraph (2)(b)(ii), if a person has turned 55, the Secretary may, in considering whether educational or vocational training is likely to enable the person to do work, have regard to the likely availability to the person of work in the person’s locally accessible labour market.

94(5)In this section.

“educational or vocational training” does not include a program designed specifically for people with physical, intellectual or psychiatric impairments;

“on-the-job training” does not include a program designed specifically for people with physical, intellectual or psychiatric impairments;

“work” means work:

(a)that is for at least 30 hours per week at award wages or above; and

(b)that exists in Australia, even if not within the person’s locally accessible labour market.

94(6)A person is not qualified for a disability support pension on the basis of a continuing inability to work if the person brought about the inability with a view to obtaining a disability support pension or a sickness allowance or with a view to obtaining an exemption, because of the person’s incapacity, from the requirement to satisfy the activity test for the purposes of job search allowance, newstart allowance or youth training allowance.”

6.      The Tribunal also notes the amendments introduced with the passage of the Social Security (Administration) Act 1999 within which in Schedule 2, section 4(1)(c), a period of 13 weeks is nominated after the day on which a claim is made, which may elapse and during which the claimant may become qualified for the social security payment.

BACKGROUND:

7.      Mr Khazma had applied for an invalid pension on 9 July 1990.  This claim was rejected on 3 August 1990, but this decision was set aside on 20 December 1990 by the Social Security Appeals Tribunal, a report by Doctor Ali, a consultant psychiatrist, having been furnished to the Tribunal, in which Doctor Ali considered the Applicant to be suffering from reactive depression.

8.      Following a review in 1994 the Applicant was informed in writing that his disability support pension would be cancelled, as he could be suitable for other work.  Despite such advice, a decision was made by a disability support officer to grant overseas portability for less than one year.  Following a further review on 12 June 1997 the Applicant was informed in writing on 29 September 1997 that his claim for disability support pension was rejected.  Following further investigation and assessment the Applicant’s disability support pension was cancelled on 5 November 1998, this being affirmed on 11 November 1998 by an authorised review officer, affirmed by the Social Security Appeals Tribunal on 11 January 1999, which in turn was affirmed by the Administrative Appeals Tribunal on 23 December 1999 and an appeal to the Federal Court, dismissed in a judgement dated 17 April 2000.

9.      In this matter the Applicant lodged a further claim for disability support pension on 26 February 2001.  This was considered and rejected by the Respondent on 6 April 2001, this decision being affirmed by an authorised review officer on 30 October 2001 and by the Social Security Appeals Tribunal on 29 April 2002.  It is from the decision of the Social Security Appeals Tribunal that the Applicant has lodged an appeal.

EVIDENCE

MR KHAZMA:

10.     Mr Khazma told the Tribunal that he was born in 1948, enjoyed a period of three years schooling, is unable to read or write English, but can read and write Arabic.  In January 1969 he migrated to Australia and in 1970 he was certified as a tradesman boilermaker following course work and assessment at TAFE.

11.     Mr Khazma informed the Tribunal that he had a motor vehicle accident in 1972 and a work accident in 1980, when he fell from scaffolding.  He received compensation following the work accident and has never returned to work after that accident.  He also stated that he had received disability support pension payments in the past.

12.     Mr Khazma stated that he was married in 1974, that he and his wife had seven children, one of which died; that three still live at home; that he and his wife separated two years ago and that he lives in separate accommodation, with the three children, still at home remaining with his wife.

13.     Mr Khazma detailed a history of being involved in a further motor vehicle accident in 1989: a fall some five years ago in which he slipped on a stone, hit his head and hurt his right knee, and that he was confined to bed for two months as a consequence.  The Applicant stated that his current doctor is Doctor Qamar, whom he attends once per fortnight and who he has been seeing for the last 10 years.  He also stated that he saw Doctor Ali, a psychiatrist many years ago and that he was given two medicines.

14.     Mr Khazma told the Tribunal of his current medical complaints, namely;

·     asthma, which is a little better than before;

·     pain – stopped some pain tablets, because of discomfort, but continues to take panamax and  dymadon;

·     psychiatric issues – still seeing Doctor Samad, who prescribes medication;

·     hearing – difficulty with both ears, noise in ears, which makes him uncomfortable and dizzy.

15.     Mr Khazma described his daily routine to the Tribunal in the following terms.

·     Has difficulty with sleeping, with problems arising from his neck.  Usually goes to bed at 1am and takes his sleeping tablets twice a week, with immediate effect.  If he does not he goes to sleep slowly.  Mr Khazma stated that he sleeps for a maximum of two hours, then arises, goes to the toilet and then to the refrigerator prior to sitting on the lounge and then takes time to go back to sleep, sleeping over a period of ten minutes to two hours – this habit having commenced in 1972.

·     Arises about 10am each day, drinks a cup of coffee and eats something prior to going shopping at 11am, three or four times a week.  In the afternoon he sleeps on the bed for two hours, walks for 10-15 minutes three to four times a week, though he tries to walk everyday.  Mr Khazma stated that he sometimes borrows a car to take his daughter to work (three to four times per week), mainly over the last month, as she has a learner’s permit.  The distance is about two to three kilometres.

16.     Mr Khazma told the Tribunal that if he walks for a longer period, he suffers much back pain with pain in the front of his legs, together with pain in his left side, neck and left leg.  He takes four to six tablets of dymadon, panodol or panamax each day.  Mr Khazma stated that as a consequence of his pain he becomes irritable and that he had to move to his current bedsitter away from his family because of frequent misunderstandings with his wife and the household tension he was creating because of his irritability.  Mr Khazma stated that he has few friends, rings the family and occasionally visits the family and does watch some television.

17.     Mr Khazma stated that he has not undertaken any gardening or lawn mowing for six to seven years because of pain.  He does wash his plates and prepares his food but this causes pain in shoulder, neck and head.  He has no problems with vacuuming, washes underwear by hand, makes his bed once a month and has difficulty with repetitive bending, with moving around also causing a problem.  He is able to sit in appropriate seats for a long time (up to one and a half-hours) without any trouble, but with some seats he has trouble.

DOCUMENTARY EVIDENCE

18.     In his application for disability support pension lodged on 26 February 2001, the Applicant noted that he had the following conditions;

Cervical Spine        -          small central protrusion of C3/4 and 4/5 discs;

Dorsal Spine           -          compression of the vertebral body at T9;

Left ankle and foot  -          old incompletely united fractures of the distal tip of the lateral malleolus of the left ankle.

Diabetes Mellitus    -          unstable

Hypertension

Hearing loss            -          mild to moderate (T4, p68)

19.     In describing the difficulties arising from these disabilities, the Applicant stated that he had difficulties all the time sitting, standing driving a car, lifting, carrying, bending, hearing, concentrating, remembering, sleeping and interacting with others, while often he has difficulties undertaking care for himself, understanding and following instructions and attending work or other appointments. (T4, p69).

20.     In a medical report from Doctor Qamar dated 27 January 1999, (T5) Doctor Qamar states that Mr Khazma suffers from:

·     "hypertension   150/100 treated but remains unstable

·     diabetes mellitus                   treated but  remains unstable

·arthritis of neck and back  -  neck movements painful: rotational neck movements cause dizziness: extension and forward flexion of back painful.  Movements in both upper limbs normal.

·     asthma      -         treated with ventolin inhaler.”

21.     In a CT Scan of the Cervical, dorsal and lumbar spine, Doctor Grey and Doctor Cohen reported the following findings (T6, p79, 80)

“CT SCAN CERVICAL SPINE

Scans were performed from the C3 to T1 level.

There is a small central protrusion of the C3-4 and C4-5 discs.  These are not causing any significant deformity of the thecal sac and all nerve roots appear to exit without compression;

Moderate degenerative change is noted at the C6-7 disc space including the uncovertebral joints and to a lesser extent at the c5-6 level;

The nerve roots at all levels appear to exit satisfactorily.  There would not appear to have been any significant change since the last examination.

CT SCAN LUMBAR SPINE

Scans were performed from the L3 to S1 level.

There is no evidence of disc protrusion or canal stenosis at any level.

All nerve roots exit without compression.

The facet joints are quite well preserved and there is no significant spondylosis.

DORSAL SPINE

There is marked compression of the vertebral body of T9, and further mild compression of T8 and T10. 

There is associated irregularity of the apposing inferior and superior surfaces of the involved vertebral bodies, and this irregularity suggests that the marked compression is more likely to be secondary to an old, healed, Scheuermann’s osteochondritis, rather than as a result of a previous fracture.

There are mild secondary degenerative changes at T8-9 and T9-10.

There is also a moderate Kypho-scoliosis at this level.

SUMMARY

Compression of the body of T9, in association with irregularity of the upper and lower surfaces of the vertebral bodies at T8-9 and T9-10, is thought to be due to an old, healed, Scheuermann’s osteochondritis

22.     An x-ray of the left foot and ankle was reported by Doctor Cohen on 10 February 2000 as showing;

“There are old incompletely united flake fractures of the distal tip of the lateral malleolus.

No secondary arthritic changes are evident in the ankle joint or in the joints of the foot.

A tiny calcancal spur was reported to be present on x-rays of July 1995.  It is of minimal size, and thought to be of doubtful significance.

No other bone or joint abnormalities have been demonstrated.”

23.     In a report dated 31 May 1999 Doctor Chang, a consultant ear, nose and throat surgeon detailed the following opinion (T7, p82);

“Thanks for referring this gentleman who was concerned about the tinnitus that he experienced over the last one year.  Examination today did not reveal any visible abnormality in his ears, but audiometrically he has bilateral noise induced hearing loses of a mild to moderate degree for which I have advised the fitting of suitable hearing aids.  I have given him the appropriate recommendation to the Australian Hearing Service for that.  His hearing problem is compatible with his past occupation as a boilermaker.”

24.     In a medical report dated 10 June 1999, Doctor Adler, a consultant in pain management and rehabilitation medicine detailed the following summary of his opinion in relation to the Applicant (T8);

“Mr Khasma had prior Scheuermann’s disease and secondary degenerative facet arthritis aggravated by multiple accidents including a pedestrian, driver-related motor car and a fall off a scaffold that resulted in chronic mid thoracic degenerative spondylosis-related complaints.  There are signs of a right rotator cuff tendonitis.

His only prior work experience has been as a boilermaker/welder.  He has poor English and has a quite severe degree of wedging, with a less than 50 per cent gibbus compression of the T9 vertebra.  This degree of vertebral compression would be consistent with a development of spondylosis degeneration at this level and his area of pain at this site is consistent with these radiological findings.

He would not pass any pre-employment medical to obtain a job as a boilermaker and given his having no other work experience, and poor level of English literacy, would be most unlikely to find alternative employment.  I would not consider him fit to manage boilermaker work in any capacity at this time.”

25.     In a medical report dated 9 July 1999, Doctor Osman Ali, a consultant psychiatrist, who had been caring for the Applicant intermittently in the past detailed the following assessment (T9);

“There is no doubt that the picture of Depression persists with the varying secondary phenomenology from panic to irritability.  As the patient’s condition has not improved, it is anticipated that his rehabilitation will take a prolonged period of time and recommend that he be referred to the Commonwealth Medical Officer for long-standing benefit.

He may well require consistent rehabilitation over the next two years or more.  During that period of time, he is more likely than not to be significantly impaired, socially and occupationally.”

26.     In a treating doctor’s report undated but received by the Respondent with the claim, Doctor Qamar, detailed the Applicant’s complaints as (T10);

·     cervical disc lesion	Neckache and radiating pain to both shoulders: treated with panamax  ii tds.
·     Lumbar disc lesion injury to left ankle and calcaneal spur	Backache and ununited flake fracture of the distal tip of the left lateral malleolus.  Treated with panamax ii tablets.
·     Diabetes mellitus hypertension	Headache, poor concentration
·     Bronchial asthma	wheezy chest.  Ventolin inhaler.

27.     Doctor Qamar concluded that the Applicant had no capacity to return to any form of work for more than two years.

Further in relation to work ability the Applicant would;

·be absent from work four or more days per month;

·would have substantially diminished dexterity;

·would be unable to lift, carry and move objects;

·mobility would be constrained in some situations;

·instructions would occasionally need to be repeated.

28.     In a medical assessment report by a medical adviser of Health Services Australia (HAS) on 14 March 2001 (T11), the following whole person assessment was written.

“This client has suffered from chronic neck pain radiating to the shoulders and back pain radiating to legs and feet.  He reported difficulty with bending/lifting and long walking, standing and sitting.  He is still able to drive, use public transport, go shopping …..etc.  He showed normal gait and was able to squat.  There was normal movements of the cervical and thoraco-lumbar spine.  He reported pain in his left ankle and right knee, but there was normal power and movement of the joints.  He has suffered also from asthma, and hypertension, but all are stable on oral treatment.  He reported reduced hearing and intermittent tinnitus, but with normal balance and no communication problems.

He has an IR of 5 points.

He is medically fit for light work with the above mentioned restrictions.”

29.     A further whole person assessment of the Applicant was made on 30 August 2001 by Doctor Elliott, a medical adviser with HSA, following a determination by an authorised review officer, as the medical examination of 14 March 2001 failed to consider all the Applicant’s conditions, namely depression, and diabetes (T16).  Doctor Elliott made the following assessment (T17);

“This client last worked in 1980 as a boiler maker/welder.  He ceased this occupation after 11 years due to neck/left shoulder pain from a work injury in that year.  Although the client is literate in his native language, he is only partially literate in English.  According to the client and T.D.R, he has the following medical conditions:

1.    Neck/Left Should Pain – the client stated that this developed after an accident in 1972, and was exacerbated by the work accident in 1972.  According to the client, the neck pain radiates to the left shoulder.  A cervical CT scan report in January 1999 indicated that the client had mild disc protrusions at 2 levels, with no compression of nerves in the area.  On examination, the client’s neck mobility was normal, and there were no neurological abnormalities in the upper limbs.  This condition is permanent, and prevents duties involving repetitive head turning.

2.    Lower Back Pain – this also developed after the injury in 1972.  Although x-rays of the thoracic spine revealed moderate degenerative changes and kyphosis (spinal curvature), a lumbar spine CT scan on the same day was normal.  The client stated that the pain radiates to the legs.  On examination, his overall thoracolumbar spine mobility was normal, he transferred with minimal difficulty, and there were no neurological abnormalities in the lower limbs.  This condition is permanent, and prevents duties requiring heavy lifting, bending and prolonged postures.

3.    Left Ankle/Right Knee Pain – the client fractured his left ankle due to an accident in 1976, although no surgery was required.  On examination, he had a normal gait, and there was no deformity or swelling of either the left ankle or right knee.  This condition is permanent, and may cause difficulty with duties involving prolonged walking and standing.

4.    Bilateral Hearing Impairment – this is associated with intermittent tinnitus (ringing in the ears).  A previous review in May 1999 by an E.N.T specialist indicated that the client has mild-to-moderate bilateral hearing impairment.  However, on examination today, there was no major verbal communication difficulty (no hearing aids).  This condition is permanent, and may cause verbal communication difficulty in noisy work environments.

5.    Non-Insulin Dependent Diabetes Mellitus/Hypertension/Asthma – these conditions are adequately controlled by medication, and are not associated with end-organ complications.  These conditions therefore have minimal impact on the client’s work ability, apart from the need to avoid dusty work environments (Asthma).

Hence, this client has a combined impairment rating of 5.  He is medically fit for full-time light work with the previously mentioned restrictions.  Suitable occupations would include light process work and car park attendant.  In view of his lack of transferable skills, the client would benefit from a vocational retraining/rehabilitation program in light duties.  However, this would need to be preceded by an English literacy course.  This advice differs from the T.D.R., which states that the client is unfit for full-time work for the next 2 years.  However, this is invariably because the treating doctor has been swayed by non-medical issues”.

30.     The Tribunal notes a medical certificate from Doctor Samad, a consultant psychiatrist, dated 15 May 2001 (T14), in which Doctor Samad detailed the Applicant’s condition as including diagnoses of chronic depression and an adjustment disorder.

31.     In an updated report dated 30 January 2002 to the Social Security Appeals Tribunal, Doctor Samad confirmed the psychiatric diagnosis as chronic major depressive reaction with acute episode and an adjustment disorder.  Doctor Samad indicated that the Applicant was being treated with zoloft and largactal (Exhibit A8).

32.     In a further report dated 13 March 2003, Doctor Samad considered the Applicant to be depressed, paranoid and looked suicidal, that there is no overt psychosis, but he is mildly delusional.  Doctor Samad had been seeing the Applicant on approximately a monthly basis and considered the Applicant to be suffering from

·     chronic major depressive reaction – acute episodes to psychotic proportion,

·     adjustment disorder.

Doctor Samad considered that the Applicant had impairment rating of some 15-20 per cent in respect of his psychiatric condition (Exhibit A6).

33.     In a medical report dated 25 October 2002, Doctor Dinnen, a consultant psychiatrist detailed the Applicant’s history and the following opinion

“The patient has chronic depressive disorder.  He has had a number of injuries through the years, the most significant for ongoing pathology being to the upper back, which causes ongoing pain and restriction.  He is not a good historian, and the generalisation of the thoracic pain to the neck and back is probably explained by musculoskeletal strain caused by postural and weight bearing problems consequent to the thoracic spine injury.  In any event, it is clear that he has been unable to work for 20 years, and has persisted on Social Security benefits throughout that time.

It is not surprising under these circumstances that he does have a chronic depressive disorder.  He is a stoic individual, in my view, and not given to exaggeration.  Indeed, I suspect some of the difficulties in assessment derive from his rather phlegmatic presentation. This even serves to believe the depth of his depressive disorder, and I believe the clinical opinion of his treating psychiatrists should be given more weight than has been the case until now.

According to table 6, assessing psychiatric impairment under the Social Security Act, his condition would warrant a score of 10 points. He has moderate and regular symptoms and generally functions with some difficulty and there are clearly difficulties with interpersonal relationships, a reduction in social activity, ongoing psychiatric treatment, and I believe the condition in its own right would prevent him from working effectively” (Exhibit 1 A2).

34.     In a further report dated 2 April 2003, Doctor Dinnen, having read the report of Doctor Samad of 13 March 2003, concluded that the Applicant does have a chronic incapacitating psychiatric illness best described as a “chronic depressive disorder”.  Doctor Dinnen considered the condition to be stable and chronically incapacitating and that the rating of 10 points originally given by him may be somewhat conservative, with indeed a rating of 20 points appearing to be more appropriate.  (Exhibit A4).

35.     In a report dated 4 September 2002, Doctor Lim, a consultant occupational physician detailed the Applicant’s accounts of injuries sustained in 1972, 1980, 1989 and 1997 and his current symptomatology which included pain and associated disability in various parts of his body, namely;

·     mid thoracic spine (between his shoulder blades) hurts all the time

·     neck and left shoulder are sore most of the time

·     has headaches and insomnia related to his neck pain

·     constant aches in his lumbar spine region

·     pain in the medial aspect of the right knee

·     intermittent swelling of his right ankle

·     pain in his groins if he sits for too long.

36.     In detailing his examination findings Doctor Lim concluded:

·     examination of the neck revealed no abnormality;

·     examination of the left shoulder revealed no abnormality;

·     examination revealed dysfunction of the middle thoracic spine with tenderness over paraspinal muscles, the middle and lower portions of the thoracic vertebrae with reduction of flexion of the thoracic spine by one third of its normal range and reduction of rotation to the left by about one third.

·     examination of lumbar spine revealed no tenderness and normal range of active movements;

·     examination of right knee indicated a probable mild medial compartment degeneration (osteoarthritis) associated with the varus deformity; and

·     examination of the right ankle revealed no abnormality.

37. Doctor Lim, having examined the available radiology, considered that the Applicant’s most significant musculoskeletal problem was his thoracic spine dysfunction, and in his opinion the Applicant had an impairment rating of 10 points pursuant to Table 5.2 of the Schedule 1B Impairment tables.

38.     Doctor Lim detailed the following conclusions

“I assessed Mr Khazma as having 10 impairment points due to his thoracic spine disorder.

The HAS had assessed Mr Khazma as having 5 impairment points for his hearing loss.

There was a prospect a definitive assessment of Mr Khazma’s psychiatric status may result in 10 impairment points, given the breakdown in his relationships with his family.

Mr Khazma is permanently unfit to continue working in his chosen career as boilermaker.

I assessed Mr Khazma as being unfit to work in occupations for which he is qualified by reason of education, training and work experience.

He is not a prospect for retraining."

39.     In a medical report dated 20 February 2003, (Exhibit R2), Doctor Keen a senior medical adviser with HSA, detailed particular comments as a result of information contained within the Applicant’s file.  As a consequence he disagreed with Doctor Lim’s assessment of ten points under table 5.2 as in his view table 5.2 requires a composite assessment of the movements of the thoracolumbar spine, and in the light of the two earlier examinations by HSA medical advisers, the more appropriate rating is zero.

40.     In oral evidence before the Tribunal, both Doctor Lim and Doctor Keen maintained their respective written opinions, with Doctor Lim stating that his speciality is spinal assessment; that there is reduction of flexion by one third for the thoracic spine, but no discernible impairment if one were to assess the thoraco lumbarsacral  spine as a single entity.  Doctor Lim stated that pain stopped the Applicant from working, and that none of the HSA advisers had detailed the severity of the pain, with pain and soreness being present all the time.  Doctor Lim considered that as regards his physical conditions, the Applicant was unfit for manual work and perhaps could undertake some light duties, for example counter work.

41.     Doctor Keen acknowledged the nature of his written opinion and confirmed the opinion he held as regards table 5.2.  Doctor Keen also acknowledged the issues of pain in this matter.

SUBMISSIONS:

42.     Counsel for the Applicant submitted that the Applicant’s various conditions when appropriately assessed were greater than 20 points.  The Psychiatric Impairment was a minimum of 10 points and more probably 20 points pursuant to table 6, and in so stating relies upon the opinions of Doctor Samad and Doctor Dinnen.  Counsel also submitted that the correct impairment rating for the thoracic spine was 10 points pursuant to table 5.2, and for the hearing loss is 5 points pursuant to table 12.

43.     Further Counsel for the Applicant, relying in turn on the reports of Doctor Adler, Doctor Lim, Doctor Samad and Doctor Dinnen contends that the Applicant has a continuing inability to work.

44.     The Respondent argues that the appropriate impairment rating for all conditions is 10 points, and that there is nothing about the Applicant’s conditions, which of themselves, would prevent him from undertaking light work.  The Respondent contends that the Applicant was not qualified at the date of his claim and did not become qualified within the 13 weeks thereafter and as such his claim for disability support pension must be rejected.

CONSIDERATION AND FINDINGS:

45.     The Tribunal has been particular in detailing the various medical assessments and opinions in this matter and notes that despite a documented history of psychiatric investigation opinion and treatment intermittently by Doctor Ali from the early 1990’s, a further report from Doctor Ali dated 9 July 1999 and a medical certificate from Doctor Samad dated 15 May 2001, and a history detailed by the Applicant of his psychiatric treatment, the documentation as completed by the two HSA medical advisers examining the Applicant on 14 March 2001 and 30 August 2001, failed to mention or address this issue in any meaningful way.  The Tribunal does not understand why this was not done, particularly when the authorised review officer had detailed such a singular absence in the first report of 14 March 2001, this being the reason for the second examination and assessment.

46.     As regards the psychiatric impairment in this matter the Tribunal is satisfied that the appropriate diagnosis is chronic depressive disorder, with the evidence and treatment of the disorder being detailed in the written opinions of the three psychiatrists, Doctors Ali, Samad and Dinnen.  Further the Tribunal is satisfied that the condition is longstanding and clearly in evidence at the time of application (14 February 2001), was clearly being treated (Doctor Ali) and was further assessed and treated as noted in Doctor Samad’s certificate of 15 May 2001 (that is within 13 weeks of lodgement).  The Tribunal also notes the report of Doctor Dinnen, which confirms the nature, and severity of the Applicant’s chronic depressive disorder.

47.     The Tribunal further observes from the various medical reports that the Applicant has the following conditions:

·     degenerative disease cervical spine with minor disc protrusions at C5/6 and C6/7 associated with pain;

·     degenerative changes at T8/9 and T9/10, compression of T9 all considered to be due to Scheuermann’s osteochrondritis and associated with pain in the interscapular area;

·     an ununited fracture of the distal tip of the lateral malleolus of the left ankle;

·     asthma – treated with ventolin;

·     hypertension – treated although variable response;

·     diabetes mellitus – treated with oral medication;

·     hearing loss bilateral – audiogram of 31 May 1999 demonstrates a 16.9 per cent hearing loss; and

·     pain in the lower back

48. The Tribunal concludes that the Applicant suffers from the impairments nominated in the previous paragraphs and as a consequence the Applicant satisfies section 94(1)(a) of the Act.

49.     The Tribunal, mindful that the assessment must be of impairments and their clinical features present at the time of lodgment or within 13 weeks after the day of the lodgment, turns to a consideration and assessment of each nominated impairment.

(a)  The musculo skeletal impairments.  The Tribunal observes that the main symptom in all such skeletal impairments is pain.  The Tribunal further notes the nature and chronicity of the pain and its effects on the Applicants ability to move, to care for himself, to undertake activities, to sleep and to work.  The site and nature of the various pain symptomatologies has been detailed by the Applicant, by many of the doctors and particularly in the report of Doctor Lim.  The Tribunal further acknowledges the difference of opinion between Doctor Lim and Doctor Keen as regard assessment under table 5.2.  It is clear to the Tribunal that the introductory comments to table 5.2 which state “As spinal mobility is a composite movement, the Table measures overall mobility of the trunk including hip movement and is not intended to measure mobility of individual spinal segments”, are particular.

As a consequence and as agreed by all the doctors if the range of movement of the thoraco-lumbar-sacral spine is to be assessed as a composite movement, the Applicant has a normal or nearly normal range of movement for the thoraco-lumbar sacral spine, as he does for the cervical spine, despite Doctor Lim’s finding of a loss of a third of the normal range of flexion of the thoracic spine.  Accordingly the Tribunal concludes that the Applicant has a nil points impairment rating pursuant to table 5.1 for the Cervical Spine and a nil points impairment rating pursuant to table 5.2 for the thoraco-lumbar-sacral spine.

The Tribunal, in noting that there is not a demonstrated loss of function of the spine, returns to a consideration of the Applicant’s pain symptomatology, which has been clearly detailed and determines that table 20 of the impairment tables is the appropriate table under which this issue should be addressed.  Table 20 details the following level of impairments:

Criteria

NILControlled hypertension

Malignancy in remission with a good to fair prognosis

Minor symptoms, which are easily tolerated and have no appreciable effect on ability to work.

TENMild to moderate symptoms, which are irritating or unpleasant but which rarely prevent completion of any activity.  Symptoms may cause loss of efficiency in daily activities but minimal interference performing or persisting with work-related tasks.  Here is minimal effect/impact on work attendance.

Hypertension that is difficult to control despite intensive therapy but without end-organ damage

Potentially life-threatening condition which is currently not interfering with daily activities e.g. malignancy in remission with a poor prognosis

Heart/Liver/Kidney transplants – well functioning) with only mild systemic symptoms.

FIFTEENModerate to severe symptoms which are more distressing but prevent few everyday activities.  Self-care is unaffected and independence is retained.  Symptoms may have mild to moderate impact on ability to perform or persist with work-related tasks and/or attend work.  Full-time work would still be possible.

Potentially life-threatening condition, which is currently interfering with daily activities but self-care, is unaffected.

TWENTYMore severe symptoms with a decreased ability/efficiency to carry out many everyday activities.  Most daily activities can be completed with some difficulty.  Symptoms may prevent or lead to avoidance of some daily tasks and simple tasks will usually aggravate symptoms of fatigue.  Symptoms cause significant interference with ability to perform or persist with work-related tasks.  Symptoms may cause prolonged absences from work.

The Tribunal, having reviewed the nature, location, severity and chronicity of the Applicant’s pain symptomatology in his cervical spine, in the intra scapular area, in the left shoulder, in his lumbar spine and associated headaches, the nature of the medication taken and the effects that the pain has on both his everyday activities, his recreational pursuits, his sleeping habits and his work capacity, concludes that the appropriate rating for the Applicant’s chronic pain is 15 points pursuant to table 20.

(b)  In relation to the Applicant’s bilateral hearing loss the Tribunal, having observed that the binaural hearing loss as assessed against the audiogram of 31 May 1999 is 16.9 per cent, concludes that the Applicant has a nil points impairment pursuant to table 12.

(c)  In relation to the Applicant’s hypertension, there is in the Tribunal’s view insufficient evidence to suggest that intensive therapy has been used to control the Applicant’s hypertension.  Accordingly the Tribunal concludes that the Applicant’s hypertension is assessed as a nil points impairment rating pursuant to table 20.

(d)  In relation to the Applicant’s diabetes mellitus, there is again no evidence available to suggest that the Applicant has been subject to vigorous therapy to control the diabetes.  As a consequence the Tribunal concludes that the appropriate assessment for the diabetes mellitus is a nil points impairment rating pursuant to table 19.

(e)  In relation to the Applicant’s bronchial asthma, the Tribunal notes the mild symptomatology and use of a ventolin inhaler twice daily when necessary.  The Tribunal concludes that the assessment of this condition is a nil point's impairment rating pursuant to either table 20 or 21.

(f)   In relation to the Applicant’s other musculoskeletal conditions, namely right ankle and both knees, the Tribunal concludes that on the information available no impairment ratings can be given for these conditions.

(g)  In relation to the Applicant’s chronic depressive disorder, the Tribunal notes the opinions of Doctors Samad and Dinnen and the symptomatology outlined both by the Applicant and the doctors.  The Tribunal has already concluded that the psychiatric disorder is both chronic and has required therapy both prior to lodging a claim for disability support pension and continuing thereafter with a well-documented symptomatology.

In assessing the psychiatric condition, the Tribunal notes that table 6 is the appropriate table and this provides the following in part.

RatingCriteria

NILMild 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.  (e.g. 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.

TENModerate and regular symptoms and generally functioning with some difficulty. (e.g. noticeable reduction in social contacts or recreational activities, or the beginnings of some interference with interpersonal or workplace 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. (e.g. short periods of absence from work).

TWENTYPsychiatric illness or disorder with either serious symptomatology OR impairment in functioning that requires treatment by a psychiatrist (eg frequent suicidal ideation, severe obsessional rituals, frequent severe anxiety attacks, serious anti-social behaviour, diagnosed psychotic illness with continuing symptoms).  There is significant interference with interpersonal or workplace relationships with serious disruption of work attendance or ability to work.

The Tribunal notes that the psychiatric condition is permanent, is being treated and requires continuing supervision in treatment by a psychiatrist on a monthly basis.  The Tribunal notes that both Doctors Samad and Doctor Dinnen in his second report suggest an assessment of 20 points.  While the Tribunal acknowledges that an assessment properly falls between the 10 and 20 point impairment, the Tribunal, in the absence of more particular documentation at the time of the lodgment of the claim, concludes that a 10 point impairment rating pursuant to table 6 is appropriate.

50. As a consequence, the Tribunal concludes that the Applicant has a combined impairment rating of 25 points and that the Applicant satisfies section 94(1)(b) of the Act.

51. In addressing section 94(1)(c) as defined by the section 94(2) the Tribunal observes that the psychiatric opinions of Doctor Ali, Doctor Samad and Doctor Dinnen is that the condition is permanent and does prevent the Applicant from undertaking any work for the next two years. The Tribunal, while noting the opinions of the two medical advisers from HSA, concludes that any opinions they may have made as regards the Applicant’s work capacity suffer as a result of their failure to deal with and assess the Applicant’s psychiatric condition.

52.     In relation further to the Applicant’s other impairments and in particular to the musculo-skeletal impairments, the Tribunal observes that it is common ground between all the opinions expressed in relation to these conditions that at best the Applicant could undertake light duties, only after a period of rehabilitation and vocational training.

53.     The Tribunal, in noting that the opinions expressed suggesting that the Applicant may have some residual work capacity were taken in isolation of either a failure to consider the psychiatric condition, or alternatively a deliberate decision to defer to the opinion of the psychiatrists (Doctor Lim), concludes that the Applicant’s Impairments are in themselves sufficient to prevent him from doing any work in the next two years.

54.     Similarly and for the same reasons the Tribunal concludes that the Applicant’s impairments are of themselves sufficient to prevent the Applicant from undertaking educational or vocational training or on the job training during the next two years.

55. As a consequence of the Tribunal’s further findings, the Tribunal concludes that the Applicant satisfied section 94(1)(c) as defined by section 94(2)(a) and section 94(2)(b)(I), with the Applicant having a continuing inability to work.

56. It is the Tribunal’s finding that the Applicant, having satisfied section 94(1)(a), (b) and (c)(I) of the Act, qualifies for a disability support pension as at date of lodgment of his claim on 26 February 2001.

DETERMINATION

57.     The Tribunal sets aside the decision under review and in substitution thereof determines that the Applicant qualifies for the payment of a disability support pension from 26 February 2001.

I certify that the 57 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member

Signed:         .......................................................................................
  Associate

Date/s of Hearing  11 April 2003
Date of Decision   4 June 2003
Counsel for the Applicant          Mr M Vincent
Solicitor for the Applicant           Mr C Hynes        
Solicitor for the Respondent      Ms M Buckley