Kuru and Secretary, Department of Family and Community Services

[2003] AATA 762

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 762

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2002/1741

GENERAL ADMINISTRATIVE  DIVISION		)
Re		AYSE KURU

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr. S. Webb, Member

Date7 August 2003

PlaceSydney

Decision The decision under review is affirmed.

[Sgd] Mr S. Webb, Member 

CATCHWORDS

SOCIAL SECURITY - disability support pension - neck pain, lumbar pain, depression, sleep apnoea - whether 20 Impairment Points - whether continuing inability to work

LEGISLATION

Social Security Act 1991,section 94, Schedule 1B

Social Security (Administration) Act 1999, ss 42, 43, Schedule 2

CASELAW

Re Mifsud and Secretary, Department of Family and Community Services (2000) AATA 737

Re Aksu and Secretary, Department of Family and Community Services (2000) AATA 648

REASONS FOR DECISION

7 August 2003 Mr. S. Webb, Member       

1.      This application by Mrs Ayse Kuru (“the Applicant”) is for review of the decision of the Social Security Appeals Tribunal (“the SSAT”) dated 17 October 2002 to affirm the decision of an authorised review officer to reject her application for Disability Support Pension (“DSP”) on 15 August 2002.

2.      The Applicant lodged the application for DSP in question on 21 April 2002 (T3).  On 18 April 2002 her treating doctor, Dr Tuncer Cimenbicer, stated that her diagnosed medical conditions were cervical spondylosis and discopathy causing chronic neck and shoulder pain, discogenic lower back pain, major depression and sleep apnoea (T4).

3.      The Applicant was assessed by Dr David Keen, a medical adviser for Health Services Australia (“HSA”), on 10 May 2002.  Dr Keen reported a combined impairment of 10 Impairment Points.  She was subsequently assessed by Dr Lovett-Iskandar on or about 21 June 2002.  Dr Lovett-Iskandar reported a combined impairment of 15 Impairment Points.

4.      The Applicant’s DSP claim was rejected on 31 May 2002.  The Applicant pursued her right of reconsideration and review thereafter.

5.      A hearing before the Tribunal was convened in Sydney on 5 August 2003 at which the self-represented Applicant gave oral evidence.  The Department of Family and Community Services (“the Respondent”) was represented by Ms Rachel Quinn from Centrelink’s Service Recovery Team. An interpreter assisted the Tribunal in the Turkish language.

6. The Tribunal had before it documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (“T documents”) and the Respondent’s Statement of Facts and Contentions dated 16 July 2003. The Applicant tendered a statement by Dr Tuncer Cimenbicer dated 28 July 2003 (Exhibit A1).

legislation

7.      The relevant legislation in this matter is the Social Security Act 1991 (“the Act”), especially section 94 and Schedule 1B, and the Social Security (Administration) Act 1999 (“the SSA Act”), especially sections 42 and 43 and Schedule 2.

evidence of the applicant

8.      The Applicant told the Tribunal she suffers severe pain in her neck that radiates into her right shoulder and down her right arm, two or three times each year, for periods lasting up to three months.  Her evidence was that during such periods she is significantly disabled and in constant pain.  She explained that during such periods she still has to do the housework, including vacuuming and cleaning but cannot do such chores without many breaks.  Her evidence was that she does these chores despite the pain.  The Applicant told the Tribunal her neck problems prevent her sleeping and limit her capacity to work.  She explained that she experiences constant pain in her neck and the fingers and thumbs of both hands.  She stated that she takes medications for the pain, but these adversely affect her stomach.  Her evidence was that the pain is less in the mornings.

9.      The Applicant informed the Tribunal she injured her lower back when she was working in a television factory in the position of Leading Hand.  She gave evidence that she successfully claimed compensation and was awarded an amount of $13,000 in 1982.  The Applicant explained that she experiences severe lower back pain which radiates into her legs and feet two or three times each year for periods lasting up to one month.  Her evidence was that during these periods she cannot walk for more than five minutes and must force herself to endure the pain in order to complete daily household chores.  She said when the pain is bad she can walk from her second storey apartment to the local shop, which takes less than five minutes on level ground.  The Applicant told the Tribunal that she experiences constant pain in her lower back, which fluctuates and restricts her movement.  In cross-examination the Applicant stated that she can traverse the stairs to her apartment without difficulty if she bandages her legs.

10.     The Applicant told the Tribunal that she has sleeping problems associated with stress and anxiety and that she uses sleeping tablets in order to sleep.  On nights when she cannot sleep she said she watches television.

11.     The Applicant gave evidence that she has suffered from anxiety, stress and depression for many years.  She claimed that she has been treated for these conditions by Dr Cimenbicer, with whom she can converse in Turkish.  She told the Tribunal that Dr Cimenbicer has referred her to a psychiatrist as her anxiety and panic attacks are getting worse.

12.     The Applicant’s evidence was that she can dress herself and brush her hair without difficulty, but experiences a lot of pain in the mornings on first arising.  She said she has to stand for a while to let the pain dissipate before dressing herself.  She noted, however, that she cannot stand for periods longer than ten minutes.

13.     The Applicant stated that her only hobby is watching television.  Her evidence was that she can only sit for short periods of up to half an hour and then has to move because of the pain and anxiety.  She stated that she can no longer knit due to pains in her fingers and her failing eyesight.

14.     The Applicant claimed she was unable to work because she is “a sick person” with “no power” and therefore no capacity to work for 30 hours per week. 

15.     In cross-examination the Applicant agreed that she had travelled to Turkey in 2001, noting that she had not been able to sit down for the duration of the flight and had moved around the aircraft in order to minimise her pain and anxiety.  She told the Tribunal that as she was two days late returning from Turkey  Centrelink cut off her wife pension, in consequence of which she applied for DSP.  The Applicant explained that her husband is on a DSP because he has heart problems and diabetes.  She stated that they assist and care for each other.  The Applicant informed the Tribunal that she cannot drive a car and does not often use public transport, relying instead on her husband to drive his car.

submissions, consideration of the issues and findings

16. The Tribunal notes that the start day applying to the Applicant’s DSP claim is to be worked out in accordance with sections 42, 43 and Schedule 2 of the SSA Act. In the present case clauses 3 and 4 of Part 2 of Schedule 2 of the SSA Act apply with the effect that the start day is the day on which the claim is made or, in the event that the Applicant is not qualified for the payment on that day, then the first day on which the Applicant becomes qualified for the payment within the period of 13 weeks after the day on which the claim is made.

17.     As the Applicant lodged her claim for DSP on 22 April 2002, it follows that the start day is either 22 April 2002 or a day within a 13 weeks period commencing on 23 April 2002.  Thus, the Tribunal must determine whether or not the Applicant was qualified for DSP either on 22 April 2002 or within a 13 week period commencing on 23 April 2002 (“the qualifying period”).

18. Section 94 of the Act sets out the qualification criteria for DSP.

“94      Qualification for disability support pension

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.

19. The Respondent conceded that the Applicant suffers permanent disabilities and satisfies section 94(1)(a) of the Act. The Tribunal so finds. The evidence of Dr Cimenbicer is that the Applicant’s cervical spondylosis and discopathy are longstanding and cause chronic neck and shoulder pain. His evidence is that the Applicant also suffers from discogenic lower back pain, which is also longstanding. The Applicant’s evidence was that this condition arose from a work injury for which she was compensated in 1982. Dr Cimenbicer indicated that both these conditions were being treated conservatively, but may require surgery in the future. He certified that the Applicant suffers from “major depression” and “sleep apnoea”, both of which he indicated were long term conditions.

20. The remaining points of contention in the case at hand are whether the Applicant satisfies sections 94(1)(b) and (c)(i) of the Act. In order to so qualify, the Applicant’s impairments must attract a rating of at least 20 Impairment Points pursuant to the tables set out at Schedule 1B of the Act and she must be found to have a continuing inability to work in accordance with section 94(2) of the Act.

impairment points

21. The introduction to the Impairment Tables set out at Schedule 1B of the Act states:

“3. … In using these tables ratings can only be assigned for conditions where there is an associated current loss of function or where prolonged loss of function would be expected in most work situations.

…

5. The condition must be considered to be permanent. Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years. 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 2 years.

…

7. A single medical condition should be assessed on all relevant Tables when that medical condition is causing a separate loss of function in more than one body system.... For example, it is inappropriate to assess an isolated spinal condition under both the spine table (5) and the lower limb table (4) unless there is a definite secondary neurological deficit in a lower limb or limbs.

8. 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 Table(s) that otherwise would be used to assess the loss of function to which the pain relates. Medical officers must use their clinical judgement and be convinced that pain or fatigue is a significant factor contributing towards the person's overall functional impairment. Medical reports and the person's history should consistently indicate the presence of chronic entrenched pain or fatigue….”

22.     The Tribunal is satisfied that the Applicant’s claimed conditions of depression and sleep apnoea are not conditions that have been fully diagnosed, treated and stabilised.  Dr Cimenbicer records the Applicant suffering a major depression that is of long standing.  The Applicant gave evidence that Dr Cimenbicer has been treating the depression. She acknowledged that she has not consulted a psychiatrist or a psychologist about her depression.  Her evidence was that she could talk in her native language with Dr Cimenbicer and she could not afford to consult a psychiatrist.  That may be true, however, the Tribunal notes that Dr Cimenbicer is neither a psychiatrist nor a psychologist.  In the circumstances it is not possible, therefore, to find that the condition of depression has been fully diagnosed, treated and stabilised.  Indeed, the Applicant tendered evidence that Dr Cimenbicer has recently referred her to a psychiatrist for treatment of depression as the condition is getting worse. 

23.     There is insufficient evidence to confirm a diagnosis of sleep apnoea and there is no evidence of such a condition being treated or stabilised.  Dr Keen noted that the Applicant has not been assessed or treated for sleep apnoea and observed that her symptoms “were more those of initial insomnia related to some depressive symptoms” (T6, folio 38).  Dr Lovett-Iskandar observed that the Applicant’s main complain in relation to depression was related to her difficulty sleeping. 

24.     The Tribunal is satisfied that the Applicant’s claimed conditions of depression and sleep apnoea have not been fully diagnosed, treated and stabilised and cannot, therefore, be considered to be permanent conditions for the purpose of assessment under the Impairment Tables.  The Tribunal so finds.

25.     Dr Lovett-Iskandar assessed the Applicant’s lumbar impairment under Table 5.1, recording a rating of 10 Impairment Points, as the Applicant’s range of movement was reduced by 25 percent.  It is not clear whether Dr Lovett-Iskandar in fact applied Table 5.1, which relates to the cervical spine, when assessing the Applicant’s lumbar spine impairment.  The appropriate Table applying to lumbar impairments is Table 5.2, which provides:

“TABLE 5.2     Thoraco—lumbar-sacral spine

As 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

RatingCriteria

NILNormal or nearly normal range of movement.

FIVELoss of one-quarter of normal range of movement.

TENLoss of one-quarter of normal range of movement as well as back pain or referred pain:

·     with many physical activities and

·     with standing for about 30 minutes and

·     with sitting or driving for about 60 minutes.

or

·     Loss of half of normal range of movement.

TWENTYLoss of half of normal range of movement as well as back pain or referred pain:

·     with most physical activities and

·     with standing for about 15 minutes and

·     with sitting or driving for about 30 minutes.

or

Loss of three-quarters of normal range of movement.

FORTY         Ankylosis in an unfavourable position, or unstable joint.”

The Tribunal is reasonably satisfied that Dr Lovett-Iskandar allocated 10 Impairment Points under Table 5.2 on the basis that the Applicant’s lumbar impairment resulted in the loss of one quarter of the range of movement and was associated with back pain and referred pain consistent with the criteria for a rating of 10 Impairment Points under the Table.  The Tribunal agrees with Dr Lovett-Iskandar’s rating, which is consistent with the evidence, and so finds.

26.     Dr Keen assessed the Applicant’s cervical and lumbar impairments and allocated 10 Impairment Points, stating (T6, folio 38):

“Ms Kuru rates a combined impairment of 10 (using table 20 for pain rather than the functional spinal tables).”

Table 20 provides:

“TABLE 20MISCELLANEOUS - MALIGNANCY, HYPERTENSION, HIV INFECTION, MORBID OBESITY (ie BMI >40), HEART/LIVER/KIDNEY TRANSPLANTS, MISCELLANEOUS EAR/NOSE/THROAT CONDITIONS & CHRONIC FATIGUE OR PAIN

Table 20 can be used for miscellaneous conditions, for example, malignancy, HIV infection, morbid obesity, transplants, miscellaneous ear/nose/throat conditions, disorders with chronic fatigue (including Chronic Fatigue Syndrome) or pain and hypertension. Where there is a separate loss of function, in addition to the loss which can be rated using the system-specific Tables, Table 20 can be used. Double-counting of a particular loss of function, by the use of more than one Table, must be avoided.

Rating  Criteria

NIL                Controlled 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. There 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 eg. malignancy in remission with a poor prognosis

Heart/Liver/Kidney transplants - well controlled (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.

THIRTYVery severe symptoms which lead to substantial difficulty with most daily tasks. Assistance with elements of self-care may be required. Symptoms cause severe interference with ability to work or attend work (ie. minimal residual work capacity).

Heart/Liver/Kidney transplants - poorly controlled (poorly functioning) with fairly severe symptoms which lead to substantial difficulty with most daily tasks

Malignant hypertension - severe, uncontrolled

Inoperable, symptomatic and life-threatening aneurysm or malignancy. Very poor prognosis with only a very limited lifespan.

FORTYMajor restrictions in many everyday activities. Capacity for self-care is restricted, leading to dependence on others. No residual work capacity.”

27.     The Tribunal does not agree with Dr Keen’s assessment and does not find it appropriate to combine the Applicant’s cervical and lumbar conditions for the purpose of assessment. This is because the conditions are clearly distinguished from each other and have a functional effect upon different parts of the body.  While pain is the product of both conditions, it cannot be said that the pain thus caused is experienced in the same parts of the body.  The evidence is that the pain from the cervical condition is experienced in the Applicant’s neck and right shoulder, whereas the pain from her lumbar condition is experienced in her lower back and legs.

28.     It is clear that Dr Lovett-Iskandar did not consider it necessary to assess the Applicant’s cervical or lumbar impairments and related pain under Table 20, despite reporting (T8, folio 49):

“[The applicant] presents with [more than] 20 years of chronic pain in her neck and lower back which has been treated conservatively.”

29.     The Applicant’s claims concerning her experience of pain are subjective.  Consideration must be given to the Applicant’s reliability as a witness of truth.  Despite the able assistance of an interpreter the Tribunal notes communication difficulties were evident.  It is possible that some of the inconsistencies in the Applicant’s evidence are attributable to this cause.  Nonetheless the Tribunal is satisfied that the Applicant sought to exaggerate her symptoms in pursuit of her claims and that caution is required in determining the weight to be given to her uncorroborated evidence.  The Applicant claimed she could sit for only 10 to 15 minutes while watching television but was observed to sit without any apparent discomfort and without break during the hearing for almost one and a half hours. The Applicant appeared to have no difficulty rising to standing position and walking away from the bench thereafter.

30.     There is no doubt, however, that the Applicant experiences chronic pain in consequence of her cervical and lumbar conditions and that the pain restricts her capacity to undertake everyday activities.  The Tribunal accepts the Applicant’s evidence that the level of pain fluctuates and that her capacity for work fluctuates accordingly.  The preponderance of the medical evidence supports such a finding. The Tribunal is satisfied that pain is the most significant element causing functional impairment experienced by the Applicant.

31.     This being the case the Tribunal is satisfied that the assessment of the Applicant’s cervical impairment under Table 5.1 may underestimate the level of disability.  Clearly the level of impairment arising from loss of one quarter of the range of movement is likely to be different than the level of impairment arising from loss of one quarter of the range of movement combined with entrenched chronic pain.  For this reason, the Tribunal is satisfied that the Applicant’s cervical condition is more appropriately assessed under Table 20; Re Mifsud and Secretary, Department of Family and Community Services (2000) AATA 737.

32.     Considering all the evidence the Tribunal is satisfied that the Applicant’s cervical condition warrants a rating of 10 Impairment Points under Table 20.  The evidence is that the symptoms are mild to moderate and rarely prevent the completion of any activity but cause some loss of efficiency in performing daily tasks.

33. This being the case the Applicant’s cervical and lumbar conditions attract a combined rating of 20 Impairment Points in satisfaction of section 94(1)(b) of the Act.

continuing inability to work

34. In order to qualify for a DSP the Applicant must satisfy section 94(1)(c) and, in consequence, section 94(2) of the Act.

“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.”

Definitions applying to the section are set out at section 94(5), as follows:

“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.”

35. The Applicant complained that she is not able to work 30 hours per week in any employment because she does not have the capacity. There is no doubt the Applicant engages in significant illness behaviour and identifies herself as unfit and unable to work. It is clear there are barriers to her employment that are not related to her claimed conditions, such as language and length of time out of the workforce. Such elements are not relevant to these proceedings. The test to be applied pursuant to section 94(2)(a) of the Act is focused solely on whether the impairments in question prevent the Applicant from doing any work within the next two years.

36.     The Applicant asserted that she has “no power” in consequence of her impairments and is not capable of doing any work for 30 hours per week but brought no other evidence to bear. She gave no other reason why she could not work. Even if the Tribunal were to accept this submission the statutory test would not be satisfied. Section 94(2)(b) must also be addressed. The Applicant asserted that she would not be able to undertake educational or vocational or on-the-job training during the next two years.

37.     Considering the Applicant’s submissions, the Tribunal is mindful of the adverse effect entrenched chronic pain may have on a person’s sense of their own capacity.  The Applicant related her difficulties complying with Dr Cimenbicer’s recommendation that she should walk as much and as often as she can.   A previous Tribunal made comment on the issue of motivation in Re Aksu and Secretary Department of Family and Community Services (2000) AATA 648 at par 45. The Tribunal accepts that the chronic debilitating effect of enduring pain may diminish a person’s will to achieve. However, the question is, setting to one side any question of will or “motivation”, whether the person is unable to achieve because of their physical condition alone. In Mrs Aksu’s case the Tribunal accepted that the impact of her physical condition alone, that is the chronic pain she experienced, prevented her from undertaking everyday duties. In the instant case, the Tribunal does not comprehend the Applicant’s lack of “power” to mean that she does not have the ability to participate in work or training. The Tribunal is in no doubt that the Applicant’s chronic pain causes her difficulties performing certain everyday duties. However, the Tribunal is not persuaded by her uncorroborated evidence and submissions that the impact of her physical condition is such that she is not able to undertake work or training of the requisite kind.

38.     Dr Keen reported that on purely medical grounds the Applicant “should be capable of lighter work [not] involving heavy lifting or repeated bending, and with the opportunity to alter posture periodically” (T6, folio 38).  Dr Lovett-Iskandar also found the Applicant to be fit for “sedentary, light work” (T8, folio 50).  The Tribunal accepts this medical evidence.

39. The Tribunal is satisfied that the Applicant’s impairments during the qualifying period did not give rise to a continuing inability to work pursuant to sections 94(1)(c) and section 94(2) of the Act, despite the existence of significant non-medical barriers to her employment.

40.     This being the case, the Applicant’s claim for DSP must fail and the decision under review must be affirmed.

decision

41.     The decision under review is affirmed.

I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member

Signed:         A. Krilis
  Associate

Date of Hearing  5 August 2003

Date of Decision       7 August 2003
Representative for the Applicant    Self Represented

Advocate for the Respondent        Ms Rachael Quinn