Mohammad Sazegar and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2012] AATA 712
•15 October 2012
[2012] AATA 712
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2010/2790
Re
Mohammad Sazegar
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Senior Member J F Toohey
Date 15 October 2012 Place Sydney The Tribunal affirms the decision under review.
.........[sgd]...............................................................
Senior Member J F Toohey
CATCHWORDS
SOCIAL SECURITY - disability support pension –– back condition – psychological condition – whether Post Traumatic Stress Disorder or Adjustment Disorder – whether conditions treated and stabilised during relevant period – whether continuing inability to work – finding that conditions treated and stabilised – impairment rating twenty points – no continuing inability to work – decision under review affirmed
LEGISLATION
Social Security Act 1991 ss 94, Sch 1B
Social Security (Administration) Act 1999 ss 41, 42; Sch 2
CASES
Preston and Secretary, Department of Family and Community Services [1999] AATA 614
REASONS FOR DECISION
Senior Member J F Toohey
15 October 2012
BACKGROUND
Mr Mohammad Sazegar was born in Iraq. He arrived in Australia by boat in 1999. He spent a year in Curtin Detention Centre before being granted a protection visa. He is now an Australian citizen. His wife, Doaa Sobie, arrived in Australia from Iran in 2005. She and Mr Sazegar met in 2005 and married in 2006. They have a four-year old daughter.
In September 2006, Mr Sazegar was helping out in a friend’s butcher shop when he was attacked and stabbed several times by an unknown assailant. He spent a week in hospital recovering from his injuries. He suffers from back pain and a psychological condition as a result of that assault.
On 24 December 2009, Mr Sazegar lodged a claim for disability support pension (DSP). The respondent rejected his application on the ground that he did not meet the relevant criteria in the Social Security Act 1991 (the Act). In June 2010, the Social Security Appeals Tribunal (SSAT) affirmed that decision.
Mr Sazegar has applied for DSP before, and since, the application which is the subject of these proceedings. His other applications are not considered here but some of the reports prepared in connection with them throw light on his present application.
RELEVANT LEGISLATION
To qualify for DSP, Mr Sazegar must satisfy the criteria in s 94 of the Act. In particular, he must have:
(i)a physical, intellectual or psychiatric impairment, or impairments, which are rated at 20 or more points according to the Impairment Tables (the Tables) in the Act; and
(ii)a “continuing inability to work” as defined in the Act.
Mr Sazegar must satisfy the relevant criteria at, or within 13 weeks of, the time of his application: Social Security (Administration) Act 1999, ss 41, 42; sch 2. That makes 24 December 2009 to 22 March 2010 the relevant period in this case. .
The respondent does not dispute that Mr Sazegar’s back condition and psychological condition are impairments within the meaning of the Act but says they do not attract the necessary rating and, moreover, that he does not have a continuing inability to work.
Mr Sazegar also suffers from gastric reflux but it is agreed that this condition is properly rated NIL points on the relevant Table because it has minimal effect on his ability to function. For this reason, I will not consider it further.
THE ISSUE
I have to decide whether, during the relevant period, Mr Sazegar qualified for DSP. That requires me to determine:
·in relation to his back condition:
(i)whether his back condition could be assigned a rating on the Tables during the relevant period;
(ii)if so, what rating it should be assigned.
·in relation to his psychological condition:
(i)what psychological condition was he suffering from;
(ii)whether that condition could be assigned a rating on the Tables during the relevant period;
(iii)if so, what rating it should be assigned.
If I am satisfied that Mr Sazegar’s impairments rate 20 points or more on the Tables, I then have to determine whether he also has a continuing inability to work.
SUMMARY OF DECISION
For the reasons set out below, I am satisfied that Mr Sazegar’s back and psychological conditions were treated and stabilised at the relevant time and could be assigned a rating on the Tables. I find they rated a total of 20 points. However, I am not satisfied that Mr Sazegar had a continuing inability to work at the relevant time. I therefore find that he did not qualify for DSP at that time.
THE IMPAIRMENT TABLES
The Tables comprise a legislative instrument determined by the Minister pursuant to s 26 of the Act for the assessment of work-related impairment. The Introduction to the Tables Sets out how they are to be applied.
In relation to rating an impairment the Introduction states:
4A rating is only to be assigned after a comprehensive history and examination. For a rating to be assigned to condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised.
…
5The 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 evidence 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 two years.
6In order to assess whether it condition is fully diagnosed, treated and stabilised, one must consider:
what treatment or rehabilitation has occurred;
whether treatment is still continuing or is planned in the near future;
whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2years.
In this context reasonable treatment is taken to be:
treatment that is feasible and accessible ie, available locally at a reasonable cost;
where a substantial improvement can reliably be expected and whether treatment or procedure is of the type regularly undertaken or performed, with a high success rate and low risk to the patient.
It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment, unless that treatment has associated risks or side effects that are unacceptable to the person. In those cases where significant functional improvement is not expected or where there is a medical or other compelling reason for a person not undertaking further treatment, it may be reasonable to consider the condition stabilised.
Spinal impairments are rated by reference to Table 5. Table 5.2 concerns the thoraco-lumbar-sacral spine. Psychiatric impairments are rated by reference to Table 6.
MR SAZEGAR’S BACK CONDITION
Mr Sazegar gave evidence that he was helping at a friend’s butcher shop in September 2006 when a man whom he did not know came in to buy meat. In an apparently unprovoked attack, the man “turned around behind me and he just greeted us and I didn’t feel anything except that he was beating me”. Mr Sazegar gave evidence that, when he felt the “beating”, he went outside otherwise he “would have been killed”. He suffered deep knife wounds to his arms, chest and back in the attack and was struck about the face and back.
An ambulance was called and Mr Sazegar was taken to Westmead Hospital where he was admitted for three days. His wounds were stitched and he was kept under observation. After being discharged, he was re-admitted a couple of days later for four days for assessment.
Mr Sazegar had no back problems before the September 2006 assault but says he has had back pain and numbness in his leg every day since. Medication helps “a bit but not much”. He says that, since the assault, he has been unable to walk or sit for long and he has to lie down for several minutes, several times each day.
Mr Sazegar gave evidence that, since the assault, he can only lift light weights and he has been unable to lift his young daughter since she was a few months old. Before the assault he used to do the mowing and helped with housework but now he does nothing. He pays someone to mow the lawn. He can wash himself but not when he is in pain. He needs help to tie his shoelaces. His wife does most of the driving; he only drives if he is going somewhere close to their home.
When he was in Iran, Mr Sazegar helped his father make and sell shoes in a market. When he came to Australia, his visa did not permit him to work for several years. In about 2004 he went into a small mixed business with another man but it ran at a loss and folded after several months. Mr Sazegar’s evidence about his employment in the period leading up to his present application is dealt with below.
Observations on Mr Sazegar’s evidence
Mr Sazegar speaks very limited English. He completed 520 hours of English language classes “with great difficulty” and says he “can’t remember much”. He also attended a TAFE course which Centrelink sent him to but says he felt stressed, he could not concentrate or comprehend the lessons, and so stopped going. His oral evidence was taken through an interpreter. It was not always easy to follow. Besides some difficulties in interpretation, Mr Sazegar’s lack of education, his functional illiteracy, and his psychological condition also appeared to affect his ability to give evidence clearly.
The respondent contends that Mr Sazegar is not a reliable witness and that his credibility is in issue. The respondent cites in particular a note by a Centrelink officer of conversations with Mr Sazegar which the respondent says are at odds with aspects of his claims, and a note of a job capacity assessor in December 2009 to the effect that he was “able to demonstrate a sitting tolerance of 30 minutes without overt pain behaviours”. The respondent also says trips made by Mr Sazegar to Iran in November 2006, July 2008 and March 2011 are at odds with his claim that he cannot sit for long periods.
Mr Sazegar gave evidence about the conversations which I accept and, in fairness, notes of conversations conducted without an interpreter cannot be considered reliable. No evidence was led about the observation of the job capacity assessor and, as a psychologist, her expertise in pain behaviour is questionable. In light of the evidence about the nature and extent of his back pain, I am not persuaded that the fact Mr Sazegar made trips to see his family whom he had not seen for many years undermines his claims.
I am satisfied that Mr Sazegar gave his evidence truthfully as best as he could and without exaggeration. I note that none of the doctors who have examined him appear to doubt that he is genuine. Further, Ms Sobie gave evidence consistent with his and I have no reason to doubt what she says.
Ms Sobie’s evidence
Ms Sobie gave oral evidence through an interpreter. She said that, before the assault, her husband was “a normal person, like any other person” and actively engaged domestically, socially and emotionally; after the assault, he became more isolated and his relationship with his family changed; he is mostly angry with their young daughter; he sleeps badly and has nightmares; he is scared “most of the time”, and irritable and short-tempered; he no longer uses public transport on his own whereas before the assault he would sometimes. He spends most of his day lying down, and more so more recently. He used to help sometimes with housework but not anymore.
Ms Sobie believes her husband’s psychological and physical conditions have not improved but have deteriorated.
Treatment
It is not easy to get a clear picture of the treatment Mr Sazegar has undergone since the assault, partly because of his poor memory and partly because information in medical reports is often sketchy.
In January 2007, Dr Mahmoud Abdalla, who was Mr Sazegar’s general practitioner at the time, completed a medical certificate, apparently in connection with an earlier claim by Mr Sazegar for DSP. It is difficult to read. Parts of the handwritten certificate are illegible but appear to list his conditions as including “anxiety depression” and “back”. That part of the certificate which details treatment is indecipherable.
According to a Job Capacity Assessment (JCA) report prepared by Centrelink in January 2007, treatment at that time comprised medication for depression and anxiety. For reasons which are not clear, the assessment dealt only with Mr Sazegar’s psychological condition although it referred in passing to his back pain.
Reports show that Dr Abdalla treated Mr Sazegar’s back conservatively with painkillers and referred him to Dr Vijay Maniam, an orthopaedic specialist, who referred him for radiological investigations.
Dr Maniam reported on 16 April 2007 to Dr Abdalla that Mr Sazegar had been suffering lumbar spine pain and pain in the sacro iliac joint since the assault; it was worse at night and radiated into the lower limbs bilaterally. Dr Maniam noted that Mr Sazegar had been stabbed in the left upper arm, right lower arm, occiput, left flank and left forearm, and had suffered facial laceration and a right sided buckle wound. He concluded he had a musculoligamentous strain and said he was to remain on “conservative measures” and have a CT scan. A CT scan in April 2007 showed minor bulging of the L3/4 disc and minimal spondylolisthesis of the lumbar spine.
In May 2007, Dr Abdalla completed a further report for Centrelink. In relation to Mr Sazegar’s “severe” back pain, he wrote that treatment comprised analgesics and non-steroidal anti-inflammatory drugs, and he was “seen by specialist” (which I take to mean Dr Maniam). He noted that Mr Sazegar’s back condition was likely to last more than 24 months and his ability to function was likely to deteriorate over the next two years because of it. The same report shows that, in relation to his depression, Mr Sazegar had “seen psychologist” and it had a “severe impact” on his ability to function.
On 11 May 2007, Dr Abdalla reported “to whom it may concern” that Mr Sazegar was on continuous medication and under medical supervision and seeing “specialists and [a] psychologist”; his symptoms persisted and his prognosis was guarded. (It is not clear whether this last comment refers to one or both conditions.)
A JCA report on 20 May 2008 by a registered psychologist documented that Mr Sazegar had been participating in psychotherapy and had had ten sessions to date with a next appointment on 28 May 2008; he had a referral to a psychiatrist and the first appointment was to be arranged. The assessor also noted that Mr Sazegar was on medication and participating in physiotherapy for his back and was to be reviewed by a specialist.
In April 2008, Dr Abdalla completed a further medical certificate. His notes are not easy to read but appear to describe treatment as analgesics, NSAIDS (non-steroid anti-inflammatory drugs) and “psychologist counselling”.
A further JCA report on 6 June 2008 noted that Mr Sazegar was “currently undergoing physiotherapy” to treat his lower back pain.
On 17 December 2009, Dr Abdalla completed a DSP medical report. He noted Mr Sazegar’s back pain and difficulty walking, standing and moving. He described treatment as analgesics and “local [indecipherable]” and physiotherapy. He described future treatment as “above and any further treatment that will be available”. He thought the condition would last more than 24 months and would deteriorate.
According to a report of Dr Elias Matalani, a consultant occupational physician who saw Mr Sazegar for assessment in December 2010, he was treated with physiotherapy at the hospital and attended about ten sessions, and he was prescribed painkillers.
On 8 February 2010, Dr Joseph Sanki, a specialist in diagnostic radiology, performed a CT scan of Mr Sazegar’s lumbosacral spine. He found “multilevel spondylitic change” at various levels in his spine, most of which he described as mild. In a report to Mr Sazegar’s then general practitioner, Dr Gias Swid, Dr Sanki said he “may benefit from a CT-guided epidural injection of corticosteroid”. In evidence before the Tribunal, Mr Sazegar could not recall this for sure. He said: “Maybe he told me and I didn’t want to do it. I’m not sure”.
In any event, it does not appear that Dr Sanki’s suggestion was taken up by Mr Sazegar’s treating doctors. Nor is there any evidence of any doctor, treating or otherwise, suggesting that surgery would be appropriate. I note that, to the extent that they make any comment, all reports indicate Mr Sazegar has been compliant with recommended treatment. The evidence about other recommendations for other forms of treatment is dealt with below. They include participation in a pain management program which does not appear to have been suggested by any treating doctor.
Currently Mr Sazegar goes to the pool for hydrotherapy “sometimes” and has “five or six” sessions of physiotherapy each year. He last had hydrotherapy about one month before the hearing, and physiotherapy “about a year ago”. The cost of treatment is a factor.
Mr Sazegar’s pharmacy has provided a list of receipts for medications he bought between February 2009 and April 2012. Giving evidence, Mr Sazegar confirmed is it a complete list of what he bought in that period. Around, and during, the relevant period, it shows mostly medications for reflux. Subsequently, it includes anti-inflammatory and anti-depressant medications.
Other medical evidence concerning Mr Sazegar’s back condition
Dr Matalani, and Dr Dale Kong, another occupational physician, assessed Mr Sazegar’s back condition. They prepared written reports and gave oral evidence.
Dr Matalani’s evidence
Dr Matalani examined Mr Sazegar in December 2010. He noted the minor degenerative changes in the CT scans in 2007 and 2010 and in a bone scan performed in March 2010. He diagnosed Mr Sazegar as suffering a soft tissue injury and chronic back strain on the background of spondylosis and spondylolisthesis.
Dr Matalani noted that, despite conservative treatment with painkillers, physiotherapy and anti-inflammatory medication, Mr Sazegar’s symptoms had persisted for years after the assault and he thought the long-term prognosis was “guarded”. He thought Mr Sazegar’s symptoms were likely to persist and any significant functional improvement of his back with or without reasonable treatment within the next two years was unlikely.
In evidence before the Tribunal, Dr Matalani was asked about other forms of treatment, in particular hydrotherapy, pain management and back strengthening exercises. He gave evidence that hydrotherapy might provide short-term temporary benefit but was unlikely to result in long-term improvement in Mr Sazegar’s back pain.
Dr Matalani did not think a pain management program would assist Mr Sazegar. He described it as comprising mainly cognitive behavioural therapy (CBT) supplemented by physiotherapy and medication, which participants usually have to attend daily for three weeks. He thought Mr Sazegar’s participation not feasible because of his lack of English and the program’s heavy reliance on understanding and practising CBT, and the need for Mr Sazegar to comprehend and practise all the information given to him by a number of specialists. He doubted Mr Sazegar would even be accepted into a program because of his lack of English, and he thought working through an interpreter would not be effective. In any event, he said, a pain management program would not affect the underlying pathology in Mr Sazegar’s lumbosacral spine and, given that pathology, it was unlikely it would make a significant functional improvement in his back pain.
Dr Matalani thought back strengthening exercises would be helpful as a “strategy to cope” but, because of the “multiple pathologies” in Mr Sazegar’s back, it would not reduce his pain significantly in the long-term. He did not think any of the treatments (hydrotherapy, back strengthening, pain management clinic) would have reliably led to substantial improvement in 2010. He took into account that, by 2010, Mr Sazegar had undergone some three-and-a-half years of treatment without significant improvement and he did not think any other treatment that would have led to a significant improvement.
Dr Kong’s evidence
Dr Kong examined Mr Sazegar in July 2011. He took a history from Mr Sazegar of a gradual onset of back pain two or three months after the assault which developed into “a constant burning type pain” in his lower back which radiated down into his legs and up into his scapula. He noted the multilevel degenerative changes and disc bulging in Mr Sazegar’s spine shown on the CT scans which he thought were minor and not uncommon in a person of his age. While he did not say Mr Sazegar was exaggerating, Dr Kong thought he complained of pain at an extreme level that was inconsistent with his clinical findings and with his work history.
In his report, Dr Kong wrote that it appeared Mr Sazegar “did not undertake formal treatment for his back pain until at least two years after the assault” when his general practitioner started him on analgesics and a seven-to-ten week course of physiotherapy. It is not clear what he meant by “formal treatment”, and it is not correct to say that Mr Sazegar had no treatment in that time. Dr Kong agreed that a program of physiotherapy at the hospital followed by several sessions of physiotherapy a year as well as pain killers was fairly standard treatment for the acute phase of the back condition but he thought more sustained treatment would be of benefit.
Dr Kong noted that there had been no significant improvement in Mr Sazegar’s condition since 2006 and he thought it likely his impairment would persist for more than two years. However, he did not think it was treated and stabilised during the relevant period because “further treatment options were available”. He thought referral to a pain management clinic appropriate and long-term management with physiotherapy, hydrotherapy and medication advisable. He thought a program would probably take around six months and would need to focus on Mr Sazegar’s lifestyle including weight loss and back strengthening, as well as on his psychological problems.
Report of JCA, December 2009
In a JCA report in December 2009 in connection with Mr Sazegar’s present application, the assessor recommended he have further investigation as “his reported symptoms are not consistent with the pathology of an L3/4 lesion”. The assessor is a registered psychologist without apparent expertise in assessing symptoms of disc lesions, and the basis of her comment is not clear. For this reason I place no weight on it.
Can a rating be assigned to Mr Sazegar’s back condition at the relevant period?
The respondent contends that, at the relevant time, Mr Sazegar’s back condition could not be considered treated and stabilised because further reasonable treatment was available which would likely result in improvement.
For Mr Sazegar it is submitted that a person is not required to exhaust all treatment options before a condition can be considered permanent, meaning it has been treated and stabilised and will more likely than not persist for the next two years, and is unlikely to significantly improve with or without reasonable treatment within that time.
The evidence from Mr Sazegar, Ms Sobie and the doctors supports the conclusion that he has had continuing back problems since the assault which have not improved and appear to have become worse. At the relevant time, his back had been treated with physiotherapy and medication for three years without any apparent sustained improvement. By all accounts, he had always been compliant with treatment. Although there had been a suggestion that an epidural might help, that suggestion was not made, or taken up, by any other doctor. Nor is there evidence of any other treatment suggested by any treating doctor.
Dr Kong agreed that Mr Sazegar had undergone standard treatment for his condition. It is relevant that he regarded physiotherapy, hydrotherapy and medication as means of long-term management, and that he acknowledged that Mr Sazegar’s psychological problems would need to be dealt with as well.
I prefer Dr Matalani’s evidence about the likely benefits of participation in a pain management program to that of Dr Kong. Given its heavy reliance on CBT and Mr Sazegar’s limited English, lack of education and difficulty concentrating, I am satisfied that Mr Sazegar would have very real difficulty in participating in a pain management program and that any benefit would be limited. I also accept Dr Matalani’s evidence that further physiotherapy, hydrotherapy and back strengthening exercise might ease the symptoms, but would not alter the underlying pathology, of Mr Sazegar’s back condition. I am satisfied they would be unlikely to have led to significant functional improvement within the following two years.
I am satisfied that, in the relevant period, Mr Sazegar had undergone reasonable treatment for his back. I am satisfied that it had stabilised and could be assigned a rating on the Tables.
Rating
Table 5.2 assigns the following ratings to a lumbosacral impairment:
Rating
Criteria
NIL
Normal or nearly normal range of movement.
FIVE
Loss of one‑quarter of normal range of movement.
TEN
Loss 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.
TWENTY
Loss 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.
In December 2010, Dr Matalani assessed Mr Sazegar as having a loss of “slightly more than quarter of normal range with back pain and referred pain”. He noted the criteria in Table 5.2 and concluded that a rating of TEN points was “reasonably consistent” with that rating.
Dr Kong considered that, in July 2011, Mr Sazegar had lost approximately 25% range of movement. Because he did not consider the impairment treated and stabilised, he did not assign a rating. However, he noted Mr Sazegar’s reported sitting, standing and walking tolerance of about seven minutes, inability to sit for any length of time without changing position, his discomfort on walking more than about 100 metres, and his inability to drive more than short distances. Although he considered Mr Sazegar’s reported pain inconsistent with clinical findings, Dr Kong did not suggest he did not believe Mr Sazegar.
On the basis of Dr Matalani’s and Dr Kong’s reports, I am satisfied that Mr Sazegar’s back condition rates TEN points on Table 5.2.
MR SAZEGAR’S PSYCHOLOGICAL CONDITION
Mr Sazegar gave evidence that, since the assault, he had had trouble sleeping; he feels scared when he remembers the attack and dreams of it three or four times each week. When he takes medication “sometimes” it’s better. He fears going out alone without his wife and he fears crowded places. He occasionally goes to a shop by himself but usually with his wife. He tried to avoid strangers. He is stressed and short-tempered. He feels panic, sometimes up to several times a week.
Ms Sobie supported her husband’s claims. Her evidence about the effects of the assault on him is summarised above.
Treatment
Mr Sazegar’s evidence about when he first sought treatment for any anxiety or depression symptoms was not easy to follow. According to the written reasons of the SSAT, he told that tribunal he had seen a psychiatrist, Dr Alex Sharah, five or six times, and Mr Medhat Metry, a psychologist, twenty times or more. He also said he had started taking Serepax “three month ago” and it made him feel “a bit better”.
In oral evidence before this tribunal, Mr Sazegar said he first sought treatment “maybe two years ago – 2010”. However, it appeared he misunderstood the question asked of him because, on further questioning, he said that in 2006 he went to see Mr Metry for his back and his “nerves”; he saw Mr Metry every two or three weeks for about a year-and-a-half but stopped seeing him because Mr Metry did not give him any medication and he did not feel any improvement.
A JCA report in October 2007 notes that Mr Sazegar had had ten sessions of counselling with Mr Metry, apparently paid for by an insurance company connected to the assault.
A further JCA report in May 2008 noted that Mr Sazegar had participated in ten psychotherapy sessions. The report noted his next appointment was on 25 May 2008 and that he had a referral to a psychiatrist and the first appointment was to be arranged.
It is not clear who that psychiatrist was. The first time Mr Sazegar appears to have seen a psychiatrist was in February 2009 when he saw Dr John Pickering in connection with his application for Australian citizenship. He was apparently referred to Dr Pickering by the Department of Immigration and Citizenship. Dr Pickering’s report is considered below. He did not make any recommendation regarding treatment, presumably because of the limited purpose of his assessment.
In March 2010, Mr Sazegar saw Dr Sharah, psychiatrist, on a referral from Dr Sanki. Dr Sharah’s report is considered below.
Mr Sazegar gave evidence that he has taken the anti-depressant Lovan for about two years. He says it has not helped much and he still has nightmares. More recently he has been prescribed Serepax. As noted below, it appears, from the list of receipts, that he was first prescribed (or purchased) Serepax in April 2010 for medication. Since July 2010 he has purchased Lovan but he does not appear to have done so consistently.
Mr Metry’s report
On 31 December 2008, Mr Metry reported “to whom it may concern” that Mr Sazegar was under his care for his psychological condition and had last attended that day. He thought Mr Sazegar was suffering from Post-Traumatic Stress Disorder (PTSD) and that his psychological and physical conditions were affecting his interpersonal, social and cognitive functioning.
Mr Metry’s report appears to have been written in connection with Mr Sazegar’s application for Australian citizenship because it refers to his psychological condition affecting his ability “to perform the necessary English tests” but nothing turns on this. Unfortunately, however, it is of limited assistance. It does not say how often he had seen Mr Sazegar, what his treatment comprised, whether any progress had been made or what his prognosis might be.
Mr Kasim Abaie’s report
A report dated 31 August 2010 from Mr Kasim Abaie, a registered psychologist, shows that Mr Sazegar was referred to him for “clinical intervention, psychological assessment, counselling and psychotherapy” on 9 August 2010.
Mr Abaie reported that the results of psychometric tests showed Mr Sazegar had severe depression, extremely severe anxiety and extremely severe stress. He thought Mr Sazegar met the criteria for PTSD, Adjustment Disorder, Major Depression Disorder and “Sleep Disorder (insomnia)”; that he was mentally and physically unwell and required “special care” and long-term therapy and support. Mr Abaie considered him “quite unfit for work” and in need of long-term ongoing medical and psychological treatment to get back to his normal life.
Dr Pickering’s report
Dr Pickering saw Mr Sazegar in February 2009 for psychiatric assessment in connection with his application for Australian citizenship, in particular as to whether he should be exempt from the Citizenship test on the ground of psychiatric disorder or mental disability.
In his report to the Department of Immigration and Citizenship, Dr Pickering outlined Mr Sazegar’s early years in Iran (where he went with his family from Iraq when he was six). He recorded that Mr Sazegar attended school for only three years and had difficulty learning on account of his inattentiveness and poor memory. He noted Mr Sazegar’s attendance at English language classes in Australia and his lack of any real learning. He outlined the 2006 assault and Mr Sazegar’s reported response.
Dr Pickering diagnosed Mr Sazegar as suffering from “a lifelong attention deficit/hyperactivity disorder” (ADHD) and more recent PTSD. He considered the ADHD had “severely impacted on his learning the material he needed for the Citizenship test and indeed has impaired his ability to learn English, in which he has absolutely minimal skills”. In relation to the PTSD, he thought it of “relatively mild degree” but nevertheless “quite disabling” and that it had made his functional cognitive symptoms much worse in that his concentration and memory were even more impaired than they were before the assault.
Dr Pickering concluded that Mr Sazegar’s “ability to concentrate for long periods of time is severe enough that it prevents him from learning” and would prevent him from performing any tests. … [his] psychiatric disorders would severely compromise his ability to do the Citizenship test and provide grounds for exemption”.
General practitioners’ reports
Medical reports from two general practitioners were submitted with Mr Sazegar’s application to Centrelink. It is not clear why.
Dr Gias Swid completed a DSP medical report in 19 October 2009. For reasons which are not clear, it concerned only Mr Sazegar’s psychological condition which he described as “life-long attention deficit/hyperactivity disorder” and PTSD. He noted “current symptoms” as poor memory, problems with attention, irritability, forgetfulness, nightmares, agitation, sleep disturbance, isolation. His note of current treatment is hard to read; it appears to suggest talking to Mr Sazegar’s previous GP and “can’t recall counselling sessions”. It notes “Seen by [Mr Metry] 2008”. Future treatment was “to be reviewed by psychiatrist Dr Pickering if he wishes Rx”. Dr Swid thought his condition would persist for more than 24 months and would fluctuate.
Dr Abdalla completed a report on 17 December 2009. Under conditions that are generally well managed or cause limited or minimal impact on functioning, he noted “anxiety depression [indecipherable]” but noted its impact was “severe”. His note of treatment is indecipherable. He did not think significant improvement could be expected.
JCA report December 2009
According to the JCA report in December 2009, Mr Sazegar started seeing a psychiatrist for ADHD and PTSD in February 2009. Current treatment was “psychiatric review every 3-4 months (cannot see more due to cost)”; future treatment was for reviews to continue. It is not clear who this psychiatrist was.
Dr Sharah’s report
Mr Sazegar saw Dr Sharah in March 2010 on referral from Dr Sanki. Dr Sharah noted that he had been seeing Mr Metry “two times a week for 24 weeks and has also seen a Dr Mahmoud Abu Arab on 15 occasions”. There is no other evidence before the Tribunal about visits to Dr Abu Arab and it is not clear what Dr Sharah was referring to.
Dr Sharah reported there was “no doubt” that Mr Sazegar was suffering from anxiety and depression; he thought of trying Mr Sazegar on anti-depressants but his weight was excessive, at over 100 kilograms, and he did not want to add to that with medication. Dr Sharah thought Mr Sazegar’s management by psychological means was “appropriate”. He thought Mr Sazegar was unable to work due to the depression which did not seem to be responding to the attempts by the psychologist, and he was likely to require psychiatric and/or psychological help indefinitely.
Evidence of Dr Dinnen
Dr Anthony Dinnen, psychiatrist, examined Mr Sazegar in February 2011 and prepared a written report. He gave oral evidence. Evidence was also given by psychiatrist, Dr Samson Roberts. Dr Dinnen and Dr Roberts disagree as to the diagnosis of Mr Sazegar’s psychological condition.
In his written report, Dr Dinnen said he thought Mr Sazegar “quite chronically traumatised” due to a combination of past experiences, including being in a detention centre in Australia. He thought Mr Sazegar had chronic PTSD with associated depressive disorder which caused marked impairment in functioning. He thought it highly unlikely there would be any marked improvement in the next two years.
Dr Dinnen diagnosed PTSD on that basis that Mr Sazegar satisfied the criteria in DSM-IV for that condition. Criterion A requires that a person be exposed to a traumatic event in which both of the following are present:
1The person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others
2The person's response involved intense fear, helplessness, or horror.
Dr Dinnen and Dr Roberts agree that the assault on Mr Sazegar constituted a criterion A1 event but they disagree as to criterion A2.
Giving evidence, Dr Dinnen said he did not specifically question Mr Sazegar as to whether he had a reaction of “intense fear, helplessness or horror” when he was attacked because he thought such a response “self-evident”, given the nature of the assault and that the symptoms described by Mr Sazegar of nightmares and ongoing fearfulness and avoidance of others indicated an extreme emotional response to the attack.
Dr Dinnen did not agree with Dr Pickering’s diagnosis of ADHD. He said he could see why Dr Pickering made that diagnosis, and he would not rule it out, but he could not see any evidence for it himself. In any event, on its own it could not in his view account for all of Mr Sazegar’s symptoms.
Dr Dinnen did not agree with Dr Roberts’ diagnosis of adjustment disorder with depressive features, in particular because one of the criteria for diagnosis of that condition is distress in excess of the stressor. In Dr Dinnen’s view, Mr Sazegar did not demonstrate excessive distress given the nature of the assault.
Dr Dinnen gave evidence that, based on his experience of treating traumatised patients over many years, chronic PTSD does not respond to medication and Mr Sazegar’s PTSD was unlikely to improve with medication. In his view, treatment can relieve the symptoms of PTSD but not cure them; the illness will run its course regardless of a range of treatment and depends on a range of factors including a person's pre-morbid condition and life experiences. Dr Dinnen did not believe any treatment would cause a significant improvement in Mr Sazegar condition, only some symptom relief. He did not think any treatment other than what Mr Sazegar had had by the relevant period would have made any difference.
Dr Roberts gave evidence (below) that, in his view, CBT could help Mr Sazegar. Dr Dinnen was less optimistic. He accepted it is a recognised form of treatment but does not think it as effective as some others do. He said it is not a unified single form of treatment and relies essentially on talking and persuading a person to think differently about their problems. He did not think it would make a lasting improvement in Mr Sazegar’s condition.
Evidence of Dr Roberts
Dr Roberts examined Mr Sazegar in July 2011 for the respondent. He took a history of nightmares of a man stabbing people and noted he had seen a psychologist “on many occasions”.
Taking into account the symptoms described by Mr Sazegar of anxiety, palpitations, sleep disturbance and so on, Dr Roberts diagnosed him as suffering from Chronic Adjustment Disorder with depressed mood, being a pathological response to an event associated with a reaction beyond what would ordinarily be expected.
Dr Roberts rejected a diagnosis of PTSD. He said Mr Sazegar’s description of the assault did not match with the intense fear, helplessness or horror required by DSM-IV; in particular, Mr Sazegar was not aware of the nature and severity of the incident and it was only later that he realised he had been stabbed. Rather than being intensely fearful, helpless or horrified, Dr Roberts thought he described being very surprised. He acknowledged, however, that an effect of PTSD is that a person may not talk about an event in the detail.
Like Dr Dinnen, Dr Roberts did not agree with Dr Pickering’s diagnosis of ADHD. He said he would not discount that possibility entirely but he would be cautious because a diagnosis of ADHD requires symptoms from childhood and it was not possible to conclude that in Mr Sazegar’s case.
At the time he saw Mr Sazegar, Dr Roberts thought that “with evidence based treatment” his psychiatric condition would improve “to a limited degree” but, as he had not had “full evidence based treatment”, his condition could not be regarded as treated or stabilisedfully. He had not received consistent psychiatric treatment either individually or in a group.
On the basis of the list of receipts from Mr Sazegar’s pharmacy, Dr Roberts he did not think he was taking prescription medication on a regular basis. He did not think Mr Sazegar’s weight a relevant consideration in whether he should be prescribed anti-depressant medication because, to his knowledge only one such medication invariably causes weight gain; it is not a necessary side-effect. Overall, he thought Mr Sazegar’s treatment had been “sub-optimal”. Contrary to Dr Dinnen, he thought there was a reasonable expectation that anti-depressant or anti-anxiety medication would help Mr Sazegar but he agreed that chronic PTSD may not respondent to these treatments.
Dr Roberts agreed with Dr Dinnen that many people with chronic PTSD continue to suffer for years despite treatment and said that chronicity itself undermines progress. He agreed with Dr Dinnen that Mr Sazegar’s “tumultuous” childhood would make him less resilient and more vulnerable to psychiatric illness generally. However, he was strongly in favour the use of CBT following a traumatic event and thought Mr Sazegar could benefit from it. He agreed that its success rate varies depending on the nature of trauma, an individual’s motivation and their current medication. He agreed that with PTSD, one may not expect ever to treat the symptoms to complete remission but that was not say a person could not get back to an acceptable level of functioning.
Diagnosis
On balance, I prefer the evidence of Dr Dinnen to Dr Roberts on the question of diagnosis. The attack on Mr Sazegar was plainly very serious, unprovoked and unexpected. It went on long enough for him to sustain deep cuts to several parts of his body. It is highly unlikely that he was no more than “very surprised” by it, and that he simply went outside and waited calmly for an ambulance. His evidence was that he went outside or he “would have been killed”. I think it more probable than not that he was aware of what was happening, even if he could not properly comprehend it, and that he reacted at the time with intense fear, helplessness or horror. Moreover, Dr Roberts and Dr Dinnen agree it was likely Mr Sazegar was vulnerable to PTSD because of his past experiences.
The symptoms described by Mr Sazegar over an extended period, none of which is seriously disputed, meet the other criteria in DSM-IV. I accept he has recurrent distressing dreams of the event or a similar event, and recurrent and intrusive distressing recollections of it (criterion B); there is evidence of at least three of the indicators of avoidance behaviour and lack of responsiveness (criterion C); of sleeplessness and irritability (criterion D) all lasting more than one month; and significant impairment of functioning (criterion F).
I find on the evidence that Mr Sazegar was suffering from PTSD at the relevant time.
Was Mr Sazegar’s psychological impairment treated and stabilised at the relevant time?
As I have already noted, it is very difficult to determine from the evidence the nature and extent of the treatment Mr Sazegar had had at the relevant time, and Mr Sazegar’s memory is not altogether reliable.
It appears clear that Mr Sazegar underwent at least ten sessions with Mr Metry. If the JCA report in October 2007 is correct, those sessions had been completed by that date. However, the JCA in May 2008 shows they were continuing. Further, in December 2008, Mr Metry reported he had seen Mr Sazegar that day. On that basis, Mr Sazegar’s evidence before the SSAT that he saw Mr Metry 20 times or more may well be correct. There is no later report from Mr Metry and, if Mr Sazegar is correct that he saw him for about a year-and-a-half, his sessions probably ended around the end of 2008. As already noted, information about Mr Metry’s treatment is scant. I note that a JCA assessor recorded in September 2011 that her “multiple calls” to Mr Metry to verify dates of treatment had been unsuccessful.
I accept that CBT was unlikely to help Mr Sazegar for the reasons identified by Dr Matalani and Dr Dinnen.
At the relevant time, Mr Sazegar does not appear to have seen a psychiatrist other than Dr Pickering. Dr Swid had left it up to him to decide whether to see Mr Pickering for medication. Although the JCA assessor noted he had seen a psychiatrist since February 2009, it is not clear that this is correct. There is no evidence that his treating doctors thought he should see a psychiatrist. When Dr Sharah saw Mr Sazegar in March 2010, he thought he would like to try him on anti-depressants but nevertheless thought his management by psychological means appropriate even though he noted he did not seem to be responding to the attempts by the psychologist.
Mr Sazegar’s evidence before this tribunal was that the first time he took medication for his condition was about “two years ago”, putting it some time in 2010. That would be consistent with the written reasons of the SSAT (hearing in June 2010) which record that he said he started taking Serepax “about three months ago” (and note that he told the SSAT it made him feel “a bit better”). It would also be consistent with the list of receipts which shows two scripts for Serepax in April and May 2010 but not before. It therefore appears that the first time Mr Sazegar took medication was after the relevant period.
However, I accept Dr Dinnen’s evidence was that medication was unlikely to help Mr Sazegar’s chronic PTSD. Dr Roberts thought there was a reasonable expectation that anti-depressant or anti-anxiety medication would help but he agreed that chronic PTSD may not respond to such treatments, although he thought a person with PTSD might get back to an acceptable level of functioning.
The Tables state that 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. Reasonable treatment is taken to be treatment that is feasible and accessible:
where a substantial improvement can reliably be expected and whether treatment or procedure is of the type regularly undertaken or performed, with a high success rate and low risk to the patient.
On the evidence before me, I cannot be satisfied that there would have been a significant functional improvement in the two years following the relevant period. Indeed, later medical reports tend to bear that out. Nor can I be satisfied there was treatment available that could have been reliably expected to lead to substantial improvement in Mr Sazegar’s PTSD in the following two years. The weight of the medical evidence is that Mr Sazegar’s condition was going to continue for the long-term and might deteriorate. Even Dr Roberts thought, at best, there would be limited improvement. All of the evidence points to his condition continuing indefinitely.
I am mindful of Dr Roberts’ comment that Mr Sazegar’s treatment had been “sub-optimal” at the relevant time. Certainly, it appears to have been somewhat uncoordinated and it may have been somewhat spasmodic. Dr Swid’s note that Mr Sazegar could see a psychiatrist for medication if he wished seems an unusual way to approach treatment for such a debilitating condition. However, even with medication, Mr Sazegar reports only limited benefit and there no evidence to the contrary.
On balance, I am satisfied, on the evidence before me, that Mr Sazegar’s PTSD had been treated and stabilised at the relevant time and can be assigned a rating.
Rating
Table 6 assigns the following rating to a psychiatric impairment:
NIL
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. (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.
TEN
Moderate 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. (eg. short periods of absence from work).
TWENTY
Psychiatric illness or disorder with either serious symptomatology OR impairment in functioning that requires treatment by a psychiatrist (e.g. 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.
There are also ratings of THIRTY and FORTY points but it is not necessary to consider them here.
Dr Dinnen assigned Mr Sazegar’s impairment TWENTY points. Dr Roberts did not assign a rating although he thought it was likely to persist for more than two years and that there would be only limited improvement. I am not satisfied on the evidence that Mr Sazegar has the kinds of impaired functioning indicated by a rating of TWENTY points, although aspects of that rating were present. On balance, I think TEN more closely reflects his impairment.
DID MR SAZEGAR HAVE A CONTINUING INABILITY TO WORK?
At the relevant time, s 94(2) provided:
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 independently of a program of support within the next 2 years; and
(b)either:
(i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii)if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
"Work" means work that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and that exists in Australia, even if not within the person's locally accessible labour market: s 94(5).
In deciding whether or not a person has a continuing inability to work because of an impairment, regard is not to be had to the availability to the person of a training activity or the availability to the person of work in the person's locally accessible labour market: s 94(3).
Mr Sazegar’s evidence
At the time of his application on 24 December 2009, Mr Sazegar was employed as a kitchen hand in a restaurant. He gave evidence that he thought he worked there for nine or ten months, but a Centrelink computerised record shows it was for 11 months from March 2009. The source of the information in the record is not clear but it is not in dispute that Mr Sazegar was employed for 15 hours a week from March 2009 until early- to-mid-February 2010.
Mr Sazegar says he worked at the restaurant because Centrelink required him to as a condition of receiving newstart allowance. He gave evidence that his back pain increased while working because he had to carry and clean dishes. He described the degree of pain as “if it were before one to three, it’s now more than five”. He gave evidence that he left the job because the pain was increasing to the point that it was going down his legs and he could to move, and he had to lie down when he got home from work each day.
Ms Sobie gave evidence that she would drive Mr Sazegar to and from work each day. She said he was “always angry and feeling pain” and he would yell and tell her to drive faster so they could get home and, once there, he would lie down. I accept Ms Sobie’s evidence and I take into account evidence from Dr Kong that working as a kitchen hand would have aggravated Mr Sazegar’s back condition.
The respondent submits there is little evidence to show that Mr Sazegar left work on account of his impairments and says that, moreover, he gave inconsistent accounts to the doctors about his reasons for leaving.
According to Dr Dinnen’s report, Mr Sazegar told him he worked for nine months in 2009 as a kitchen hand but “became upset and couldn’t continue”. Dr Dinnen reported that Mr Sazegar told him “he found it very difficult with regard to being paid and had to ‘squeeze money out of that bloke’”. According to Dr Roberts’ report, Mr Sazegar told him it was not an easy job because there were a lot of breakages he had to pay for and he left “because of back pain and “nervous problems”. According to Dr Matalani’s report, Mr Sazegar told him he left work “because of his symptoms”.
In cross-examination, Mr Sazegar said he left work for two reasons: because of his back pain and because he sometimes had to wait up to a month to get paid. He was not asked, and he did not say, whether either played a greater part than the other in his decision to leave.
It is possible that Mr Sazegar’s back pain played a greater part in his decision to leave work that any problems that he had with his employer. However, given his evidence as to his reasons for leaving, I am not satisfied that was the case. I find, on the evidence, that his back pain and problems with his pay played equal parts. I take into account that the Centrelink record indicates, and Mr Sazegar does not suggest otherwise, that he worked for 15 hours a week consistently throughout the 11 months he was employed as a kitchen hand.
When he saw Mr Sazegar in December 2010, Dr Matalani thought he would be unsuitable for work requiring repetitive bending and twisting of the spine, prolonged or uninterrupted sitting, prolonged walking and standing, or heavy manual handling activities. He thought Mr Sazegar would be unlikely to be able to tolerate returning to his part-time occupation as a kitchen hand and unlikely to be able to tolerate working in factories or as a labourer unless a position could be found which allowed him to work within his physical restrictions. He thought Mr Sazegar’s impairment of itself was likely to prevent him from doing any work of 15 hours or more a week at that time or within the next two years.
In oral evidence, Dr Matalani said that, at the relevant time, given the considerable barriers faced by Mr Sazegar, retraining would not realistically enable him to obtain long-term sustainable employment. He qualified that opinion in cross-examination by saying he thought Mr Sazegar could have worked 15 hours at the relevant time within the restrictions of his disability but he would be vulnerable to exacerbations which would require intermittent time off work. Depending what sort of training was available, he would not exclude it being of some benefit to Mr Sazegar.
Dr Kong’s evidence
Dr Kong assessed Mr Sazegar’s capacity to work at the date of his examination in July 2011. He did not think, on the basis of Mr Sazegar’s physical conditions alone, that he was precluded from working for 15 hours or more during the relevant period. He thought working as a kitchen hand would have aggravated Mr Sazegar’s back condition but he thought he could do work of a sedentary office nature within the limitations of his physical restrictions. He agreed that Mr Sazegar’s psychological condition would have to be taken into account.
Dr Kong agreed that suitable employment would have to be tailor-made for Mr Sazegar to take into account matters such as his need to adjust his posture so that there was no prolonged sitting or standing, that he could not undertake repetitive bending or lifting and could not lift weights more than five kilograms; that he would need periods off work due to pain and his psychological condition, and he could not work many hours in a day; that he would need to be able to get up and move about, and he could not stand for very long, or go up and down many stairs. Dr Kong agreed Mr Sazegar would be at high risk of back injury and he agreed that his irritability would be a problem and that it would be difficult for Mr Sazegar to attend work reliably.
Dr Dinnen’s evidence
Dr Dinnen gave evidence that, at the relevant period, Mr Sazegar was not fully fit when he did work. He did not think Mr Sazegar could work 15 hours a week on a consistent basis; he might be able to work for short periods of time, even for a few months, but he was not fully fit for work at the relevant time. However, he thought there was “some reason to hope” that within the next two-to-five years Mr Sazegar might improve to the extent that he could undergo rehabilitation and retraining although psychosocial factors might affect his ability to respond to vocational training. He thought Mr Sazegar would need to make a considerable recovery from his chronic psychiatric illness in order to undergo any retraining.
Dr Roberts’ evidence
Dr Roberts recorded in his report that Mr Sazegar told him he had been working 15 to 22 hours a week at the relevant time. Dr Roberts gave evidence that, in relation to Mr Sazegar’s ability to work 15 hours per week, his initial impression was that he was quite impaired to the extent that he might be unemployable. However, having learned that he had worked for “protracted periods of time for what one would consider a normal number of hours per week” without apparent impairment, he “could not form the opinion that his condition was of a nature and severity as to preclude employment”.
Asked whether a person who had suffered traumatising experiences including the assault and detention would be unable to work 15 hours per week, Dr Roberts said Mr Sazegar had “clearly demonstrated that a person suffering a condition of the nature he described is capable of engaging in such a level of employment”.
Consideration
The question I have to determine is whether, during the relevant period, Mr Sazegar had a continuing inability to work within the meaning of s 94(2).
Mr Sazegar had worked for 15 hours a week consistently for nearly a year, including for about half of the relevant period. I accept that Centrelink required him to work in order to receive newstart allowance but the fact remains that he did work for that time.
In Re Preston and Secretary, Department of Family and Community Services [1999] AATA 614, the applicant was employed full time until a few days before the relevant period. There was medical evidence before the Tribunal that it “must have only been with great difficulty” that he continued to work. The Tribunal observed that “an ability to work cannot mean an ability to pursue employment while suffering an unacceptable level of pain or impairment”, and that must be correct. However, while there is no doubt that Mr Sazegar worked with back pain, I am not satisfied that he met the description of the applicant in Preston.
Mr Sazegar’s back pain would have made work difficult for him but his employment history leading up to and during the relevant period is very difficult to reconcile with a continuing inability to work within that period. There is no evidence, for example, that he had breaks in employment or had to take time off work, and he does not suggest that was the case. There is no evidence suggesting he had increasing difficulty working. Given his evidence that problems with his pay was a reason he stopped work, I think it more probable than not that, absent that problem, he could have continued working 15 hours a week. Even if he was unable to continue working for 15 hours a week, I am still not satisfied that he met s 94(2) within that period.
It does not necessarily follow merely because Mr Sazegar could have worked 15 hours a week throughout the relevant period that he did not also have a continuing inability to work. However, it raises the question of whether his impairment, of itself, was sufficient to prevent him from doing any work independently of a program of support within the following two years.
The medical evidence makes clear that Mr Sazegar would have had difficulty undertaking a training activity. However, I am not satisfied that his impairment would have prevented him from undertaking such activity, or that such activity was unlikely to enable him to do any work independently of a program of support within the following two years.
Dr Matalani qualified his written report and said he thought Mr Sazegar could have worked 15 hours a week at the relevant time within the restrictions of his disability although he thought Mr Sazegar would need intermittent time off work. He would not exclude some benefit from training. Dr Kong thought he could do work of a sedentary nature within his physical limitations, although he recognised Mr Sazegar’s psychological condition would have to be taken into account. Dr Dinnen thought there was reason to be hopeful. Dr Roberts would not exclude continuing employment.
Despite the evident difficulties he would have faced, I am not satisfied, on the evidence, that Mr Sazegar’s impairments would have prevented him from undertaking a training activity in the following two years or that such activity was unlikely to enable him to work independently of a program of support during that time.
I affirm the decision under review.
I certify that the preceding 142 (one hundred and forty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey. ........[sgd]................................................................
Associate
Dated 15 October 2012
Date(s) of hearing 3, 4 and 24 May 2012 Counsel for the Applicant Dr K Sant Solicitors for the Applicant Ms S Grey, Legal Aid Commission of NSW Solicitors for the Respondent Mr G Lozynsky, DHS Program Litigation and Review Branch
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