Mourtekis and Department of Family and Community Services - [2001] AATA 635

DECISION AND REASONS FOR DECISION [2001] AATA 635

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/860

GENERAL ADMINISTRATIVE DIVISION          )
           Re      Arthur Mourtekis
  Applicant
           And    Secretary, Department of Family and Community Services
  Respondent

DECISION

Tribunal Ms SM Bullock, Senior Member

Date6 July 2001
PlaceSydney

Decision      The decision under review is affirmed pursuant to section 43 of the Administrative Appeals Tribunal Act 1975.
  ..............................................
  Ms SM Bullock
  Senior Member
Catchwords
SOCIAL SECURITY - Disability Support Pension - Impairment Rating

Legislation
Social Security Act 1991 ss 94(1), 94(2), 94(5), 100(3)

REASONS FOR DECISION

6 July 2001 Ms SM Bullock Senior Member

This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") made by Mr Arthur Mourtekis, of a decision of the Social Security Appeals Tribunal ("the SSAT") dated 27 April 2000 (T2). The SSAT affirmed a decision made by a Centrelink Delegate of the Secretary, Department of Family and Community Services ("the Department") on 12 August 1999, to reject Mr Mourtekis' claim for a Disability Support Pension (T12).
A hearing was held before the Tribunal in Sydney on 12 April 2001. The Applicant provided oral evidence to the Tribunal. He was represented by his daughter, Ms A Mourtekis, who also provided oral evidence to the Tribunal on behalf of her father. The Respondent, the Department, was represented by Mr J Kenny, Departmental Advocate. The Tribunal was assisted by an interpreter in the Greek language.
The Tribunal took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) ("T-Documents", T1-T34) and the following exhibits:

Exhibit Number    Description Date
T1 – T34 Section 37 Statement and Documents. Various
A1      Medical Report of Dr C Yiannikas, Consultant Neurologist     11 October 2000
A2      Medical Report of Dr C Yiannikas, Consultant Neurologist     5 April 2001
A3      Medical Report of Dr M Guirgis, Consultant Orthopaedic Surgeon, with attached letter from Anna Mourtekis       4 January 2001
A4      List of combined medical problems submitted by the Applicant's daughter Undated
A5      Letter from The Canterbury Hospital to Dr Dracos, General Practitioner     15 December 1996
R1      Respondent's Statement of Facts and Contentions     6 October 2000

Issues

The issue in this matter relates to whether or not Mr Mourtekis is qualified to receive a Disability Support Pension. Specifically, the sub-issues are:
(a)Whether Mr Mourtekis has a physical, intellectual or psychiatric impairment; and if so,
(b)Whether Mr Mourtekis has an impairment rating of 20 points or more under the Impairment Tables contained within Schedule 1B to the Social Security Act 1991 as required by subsection 94(1)(b) of that Act; and if so,
(c)Whether Mr Mourtekis has a continuing inability to work as required by subsection 94(1)(c)(i) of the Social Security Act 1991.

The Tribunal also notes that pursuant to section 100 of the Act, it will need to consider the Applicant's conditions on the day on which his claim was lodged and for a period of three months starting immediately after the day on which the claim was lodged.
Legislation

The legislation relevant to a determination in this matter is the Social Security Act 1991 ("the Act"). Section 94 of the Act sets out the qualifications for Disability Support Pension. As relevant, section 94 provides:
"94      Qualification for disability support pension
(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
…
(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.
Note: For work see subsection (5).
…
(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.
…"
Section 100 deals with the commencement day for Disability Support Pension and as relevant states:
"Early claim
100 (3) If:
(a) a person lodges a claim for a disability support pension; and
(b) the person is not, on the day on which the claim is lodged, qualified for a disability support pension; and
(c) the person becomes qualified for a disability support pension sometime during the period of 3 months that starts immediately after the day on which the claim is lodged;
the person's provisional commencement day is the first day on which the person is qualified for the pension and is an Australian resident and in Australia.
…"

Background

The facts contained in this section are by way of background information and are not disputed by the parties.

Mr Mourtekis was born on 10 June 1945 in Greece (T3 p14). He is currently 56 years old. Mr Mourtekis left school in third class primary school at the age of 13 or 14 after repeating this grade when he was unable to obtain the requisite pass mark. He did not continue with his schooling because all the other students had reached high school and in addition, he had to start work.
Mr Mourtekis immigrated to Australia in June 1968 (T3 p17). He worked in factories as a labourer, for example in a Cabarita factory manufacturing tin containers for beer and lemonade. He had also worked as a supervisor and in 1990 he bought his own car wrecking business. Mr Mourtekis currently lives with his wife and daughter at a property at Revesby that is jointly owned by all three (T3 p19). Mr Mourtekis' son also lives at this property. Mr Mourtekis is separated from his wife, having separated in January 1993 (T3 p15).
On 23 December 1993, Dr P Clouston reported that "chronic denervation changes were seen on EMG in some C6-7 muscles bilaterally. There was no electrophysiologic evidence of median nerve entrapment at either wrist." (T4 p56)
On 17 April 1997, Dr V Fung reported that there was a bilateral slowing of ulnar motor conduction across the elbow, but the remainder of the nerve conduction studies were normal. An "EMG showed moderately severe changes of denervation in a C5 –T1 distribution, most marked in C7–8 innervated muscles." Dr Fung reported that these findings were consistent with a moderately severe chronic cervical radiculopathy, most marked in a C7–8 distribution, with mild, superimposed ulnar neuropathies at the elbow, most likely on the basis of "double crush" syndrome (T5 p59).
On 29 August 1997, Dr J Ellis, an Orthopaedic Surgeon, reported that Mr Mourtekis was suffering from cervical spinal strain with spondylitic lesions at C5-6 and C6-7 and that these were associated with occipital headaches. Dr Ellis also reported that Mr Mourtekis had low lumbar strain with local tenderness, a spondylolisthesis at L5-S1 and degenerative changes in the spine at L3-4 and L4-5 (T6 p64). Dr Ellis reported that he assessed the permanent impairment of Mr Mourtekis' neck at 15%, of which he estimated half as being due to previous spondylosis. Dr Ellis further reported that the permanent impairment of Mr Mourtekis' back was again assessed at 15%, of which half was estimated as being due to pre-existing spondylosis and spondylolisthesis. Dr Ellis opined that although Mr Mourtekis had evidence of a right carpal syndrome, he did not consider this to be related to his motor vehicle accident (T6 p64).
On 3 November 1997, Dr B Lyle reported that Mr Mourtekis' condition had further deteriorated from early 1996 to December 1996, with pains extending down both arms, particularly the left and also extending to his lumbar spine (T7 p65). Dr Lyle noted that in December 1996, Mr Mourtekis collapsed on his way to work and had to be taken to hospital. Dr Lyle next saw Mr Mourtekis in October 1997, when he was suffering from splitting headaches, neck pain and spinal pain extending to his hip and leg. Dr Lyle reported that Mr Mourtekis "…had been unable to seek treatment because of severe financial stress, having lost his home due to his inability to service his business debts". Dr Lyle saw Mr Mourtekis on three further occasions, including 2 October 1997, in the hope of slowing his rate of deterioration. Dr Lyle opined that he was extremely guarded in any prognosis to that effect, and was only willing to continue treatment if Mr Mourtekis felt a benefit from such treatment.
On 8 July 1999, Dr G Dracos, General Practitioner, provided a "Treating Doctor's Report" in support of Mr Mourtekis' Disability Support Pension claim (T8). Dr Dracos noted that Mr Mourtekis had the conditions of cervical disc lesion, lumbar spine spondylolisthesis, anxiety-depression and benign prostatic hypertrophy. Dr Dracos opined that it would be more than two years before Mr Mourtekis was likely to be able to return to his usual job or any other type of job. Dr Dracos further opined that Mr Mourtekis would not be able to undertake any type of part-time work in more than two years, nor would he benefit from vocational training or rehabilitation as Mr Mourtekis' conditions are multiple and chronic.(T8 p69).
On 14 July 1999, Mr Mourtekis lodged a claim for Disability Support Pension (DSP) with the Department (T3). Mr Mourtekis claimed the following conditions:
1)cervical disc lesion
2)lumbar spine spondylolisthesis
3)anxiety – depression
4)benign prostatic hypertrophy
5)severe headaches and dizziness
6)hip problem
7)stress
8)stomach problems
9)irregular heartbeat
10)underarm muscle, part of chest muscle and leg muscle wasting away (T3 p46)

Mr Mourtekis noted in his claim that because of these disabilities and their deterioration, his doctors and specialists had advised very light duties only (T3 p51).

On 12 August 1999, Dr N McCullum, Medical Adviser with Health Services Australia (HSA), reported that Mr Mourtekis had neck pain, with intermittent radiation down both lower limbs since 1994 and X-rays showed a disc lesion at C5/6, for which the treatment regime was physiotherapy and "Panadol" (T9 p75). Dr McCullum noted that the pain was aggravated by lifting and twisting and that Mr Mourtekis experienced pins and needles in both arms. Dr McCullum further noted that Mr Mourtekis was able to use his upper limbs efficiently for feeding, driving and writing, but while his general mobility was good, his being able to move on and off a couch unassisted, he did have mild wasting of his left arm.

Dr McCullum also noted that Mr Mourtekis had back pain and that his X-rays showed a Grade 1 spondylolisthesis and spondylosis which caused similar restrictions to the neck, which was being similarly treated. Dr McCullum found that Mr Mourtekis was unable to sit for more than an hour, had mild wasting in his right thigh and could walk only fifteen minutes before the pain radiated down to the right lower limbs. Dr McCullum also reported that Mr Mourtekis had had anxiety/depression with suicidal thoughts since 1997, when he lost his house due to his business failing and for which he had been prescribed "Dothiepin". Mr Mourtekis however had been non-compliant with his medication and had also not seen a psychiatrist. Dr McCullum also reported that Mr Mourtekis had benign prostatic hypertrophy with nocturia, frequency and significant obstruction, for which an operation was recommended. Dr McCullum further reported that Mr Mourtekis had had two episodes of atrial fibrillation in the last five years but this had reverted to sinus rhythm spontaneously and was currently asymptomatic. Dr McCullum noted that no medication had been prescribed but Mr Mourtekis again had been non-compliant.
Dr McCullum assessed Mr Mourtekis as having nil impairments for the neck pain, spondylosis and spondylolisthesis under Table 5. Dr McCullum further assessed Mr Mourtekis' anxiety/depression and benign prostatic hypertrophy as temporary, to be reviewed in six months. In regard to Mr Mourtekis' heart condition, Dr McCullum assessed this as a nil impairment under Table 21, as it occurred only about once per year.
Dr McCullum concluded that despite Mr Mourtekis' multiple problems, including back and neck pain, these should not interfere with his ability to perform light duties and work for example, as a toll collector. Dr McCullum gave a nil total impairment rating for Mr Mourtekis and further opined that Mr Mourtekis was currently unfit for work because of a temporary medical condition, depression, for which he should be reviewed in six months and which, with appropriate treatment should improve (T9 p84).

On 12 August 1999, recorded in a "New Claim Action Sheet" by a Centrelink delegate, was advice to Mr Mourtekis about the Newstart Allowance. However Mr Mourtekis stated on the form that he did not want to claim this as he was happy to wait for the Disability Support Pension outcome (T10 p86).
On 12 August 1999, a Delegate of the Department wrote to Mr Mourtekis, informing him that his claim for Disability Support Pension had been rejected (T12).
On 18 August 1999, following the Department's decision to reject Mr Mourtekis' claim for Disability Support Pension, Mr Mourtekis submitted six additional medical reports, dated variously, from the following doctors: Dr S Raj Sundaraj, Anaesthetist and Pain Management Specialist, dated 11 December 1995 (T13); Dr V Fung, dated 17 April 1997 (T14); Dr G Shirley, Radiologist, dated 29 April 1997 (T15); Dr M Guirgis, Consultant Orthopaedic Surgeon, dated 12 December 1997 (T16); Dr C Yiannikas, Consultant Neurologist, also dated 12 December 1997 (T17); and Dr G Dracos, General Practitioner, dated 6 July 1999 (T18).
On 19 October 1999, Dr J Phillips, Medical Adviser with Health Services Australia, wrote that having considered the six additional medical reports submitted by Mr Mourtekis, he still considered that Dr McCullum's original assessment of a nil impairment remained appropriate and therefore the impairment rating should not change. Dr Phillips concluded that "this man is fit for a wide range of jobs. I disagree with the Treating Doctor's Report – this man's current health problems are mild only." (T21 p114)
On 21 October 1999, the same Departmental Delegate determined that the original decision was correct under section 94 of the Act (T22).
On 1 November 1999, Mr Mourtekis requested that an Authorised Review Officer ("ARO") review the decision of the Departmental Delegate (T24).
On 29 November 1999, Ms C Carboni, ARO, wrote to Mr Mourtekis informing him that she had decided that the decision to reject his claim for Disability Support Pension was correct. Ms Carboni determined that while Mr Mourtekis did have physical impairments resulting in an appropriate rating of 10 points for the chronic pain, these were not to the requisite 20 points or more under the Impairment Tables (T29).

Further, Ms Carboni concluded that Mr Mourtekis was currently fit for suitable light work which allowed him to change posture and which did not include squatting, climbing stairs or heavy lifting, such as could be found in light process work, or working as a ticket collector or parking attendant (T29).

On 3 March 2000, Mr Mourtekis lodged his application for review to the SSAT and on 27 April 2000, the SSAT affirmed the decision under review. The SSAT decided that the appropriate ratings for Mr Mourtekis were 10 points for chronic pain under Table 20; a nil impairment rating for pain in the cervical spine and thoracolumbar spine under Table 5.1 and 5.2 respectively; a nil impairment rating for pain and numbness in both arms under Table 3; a nil rating for pain in the leg under Table 4; a nil rating for psychiatric impairment under Table 6 and a nil impairment rating for benign prostatic hypertrophy under Table 16 (T2 pp8-9). The SSAT further noted that in relation to the intermittent atrial fibrillation, in view of the absence of any real evidence regarding this condition, the SSAT was unable to assess any impairment rating. As Mr Mourtekis' total impairment rating was less than 20 points, the SSAT determined that he did not satisfy the legislative requirements under subsection 94(1)(b) of the Act and therefore did not qualify for a Disability Support Pension (T2 p9).
On 5 June 2000, Mr Mourtekis lodged his application for review to the Tribunal (T1).

Evidence of Mr Arthur Mourtekis

The Tribunal referred Mr Mourtekis to the list of medical problems he had recorded in his Claim for Disability Support Pension (T2 p46 ). When the Tribunal referred to the cervical disc lesion and asked Mr Mourtekis if he could remember how his neck felt at the time of the claim, Mr Mourtekis stated "As I sit and look at you and don't move, I have no pain. When I move left or right I get a sharp pain. Both shoulders and arms hurt. If I lift my neck, I get a sharp pain." When the Tribunal asked Mr Mourtekis how this condition affected his hands, he stated there is unbearable pain and his forearms are numb day and night. Mr Mourtekis further described how in the morning he shakes his hands to move them and he wakes up in the night with numbness. Mr Mourtekis also noted that by sitting at the hearing, his hands would get numb and he felt the same on 12 July 1999 when he had signed his claim form, further adding that this condition dated back to at least 1979. Mr Mourtekis further stated to the Tribunal that from mid to the end of 1999, he used to have a lot of physiotherapy and chiropractic treatment but now his neck condition has worsened. Mr Mourtekis also informed the Tribunal that he does not know what medication he takes for his neck because he cannot read the labels, but he is trying to get better because three or four years ago, some doctors had wanted to operate on his neck, but Dr Guirgis has advised him not to have the operation.
In relation to his back problem, Mr Mourtekis stated to the Tribunal that after he has been sitting for half an hour, his back hurts and that is how it is now. Mr Mourtekis further stated that in July 1999, he could only bear the pain with medication and today the condition is worsening. He tries to help himself, although the doctors have said that it is only possible to manage the pain with medication.
In response to the Tribunal's question regarding work around the house, Mr Mourtekis stated that he could cut the grass but he could not do a lot of other work and if he is not okay, he goes to bed. This was the case, Mr Mourtekis stated, both back in 1999 and now, but now he has additional problems: his neck problem worries him much more, his hands go numb and he cannot sleep, and the pain in his back has worsened.

In relation to his depression, Mr Mourtekis stated to the Tribunal that his medical problems create anxiety and while his exterior body looks okay, inside of him he is in pain. However, he has not seen any doctors for his depression because he cannot afford it. He only sees Dr Yiannikas, a Consultant Neurologist, and Dr Dracos, Mr Mourtekis' General Practitioner, and two months ago he also saw Dr Guirgis, Consultant Orthopaedic Surgeon. He saw Dr Yiannikas about two or three months ago and he sees Dr Dracos sometimes three times per week and other times, two times a month, but Dr Dracos says he cannot help him. Mr Mourtekis further stated that he could not recall whether he saw Dr Dracos more in 2001, in 2000 or in 1999.
In regard to the prostate problem, Mr Mourtekis stated that in one hour, he goes to the toilet often but he cannot urinate properly, he feels pain and cannot sleep at night. More than three years ago in 1997 or 1998, he had seen Dr Boulos at Burwood, who had said that he should have an operation, but he was scared. Mr Mourtekis stated that he takes medication for this problem, which is at about the same level of discomfort as in 1999. If he can find the money, he is considering having a special operation in Melbourne, which costs about $7500.00.
Mr Mourtekis told the Tribunal that he gets headaches which start from the back of his head, moving to the front, with the pain lasting ten or twelve hours, for which the doctor has prescribed very strong medication. The pain of these headaches, Mr Mourtekis told the Tribunal, is much stronger now than at the time he had applied for the Disability Support Pension. In 1999, he had had two or three headaches per week, but the pain then did not last as long as it does now. Currently he still has headaches two or three times per week, but they last longer. For example, last week Mr Mourtekis had two continuous days of headaches but at other times, he has ten or twelve hours of continuous pain.
In relation to his hip problem, Mr Mourtekis stated that the problem had appeared in the last two years and when Dr Yiannikas had examined him, he found the left leg shorter and sent him to have X-rays. Now he has pain in the right knee, Mr Mourtekis told the Tribunal, a pain which is new and for which he has to move a lot to recover. When referred by the Tribunal to his list of medical conditions in T3 p46, in particular where he had mentioned a wastage of the leg muscle, Mr Mourtekis said that this was the same condition he was now describing and his right limb was becoming swollen while the other limb was becoming smaller.
Mr Mourtekis told the Tribunal that his stomach problems are better. Sometimes he has strong pain which lasts more than half an hour but it is helped by medication. He did not know what the cause of this problem was, though he thought it could be an ulcer, but it was not affecting him as much now.
In relation to his heart problems, Mr Mourtekis informed the Tribunal that he had been hospitalised twice in intensive care and kept under observation for two weeks. This happened when his hands were numb, he could not drive and felt dizzy and the ambulance had taken him to Canterbury Hospital. The doctor had advised him to get pills for his irregular heartbeat, but he was not taking any medication for this now because he does not have an irregular heartbeat every day. His irregular heartbeat now is the same as it was at the time of his application for the Disability Support Pension, lasting two or three days when it starts.
In response to the Tribunal's question as to whether he had any other physical, medical or psychological problems, Mr Mourtekis stated that he felt his body had deteriorated and that he is worse than in July 1999, although not all the problems have become worse. For example, he is not as upset in regard to his irregular heartbeat, although it does interfere with his ability to do things.
Mr Mourtekis told the Tribunal that he still drives a little every day when he goes shopping or to the doctor. He does the shopping for the whole family with his daughter who is not working. At home he mows the grass and does the washing up, but his ex-wife does the cooking. His ex-wife cooks for the children but she offers him some food since they all live in the same house and need to avoid arguments, Mr Mourtekis told the Tribunal. Mr Mourtekis also stated that he wished he could work, but the pain and his body do not allow him to. When questioned by the Tribunal as to whether he could have worked in 1999, he stated that he could not do so and that was why he had made his application for Disability Support Pension. As to the question of retraining, his headaches, pain and dizziness would not allow him to work because he always concentrates on the pain, Mr Mourtekis stated, and the situation was the same in 1999, but now the pain is stronger and goes on for longer.
In relation to his appointment with the government doctor [at HSA], Mr Mourtekis said his appointment was two or three minutes, the physical examination was less than one minute and the doctor was not very happy. Mr Mourtekis could not remember if he had X-rays with him but he thought he must have. Mr Mourtekis also stated to the Tribunal that the doctor did not look at the reports, although he could not recall if he had his papers with him. Mr Mourtekis further stated to the Tribunal that he saw a government doctor one more time, again for a short time of two or three minutes, but he could not recall if the doctor had examined him on a bed. However, there was a difference in the examination with the second doctor in that he treated him better, more as a human being. Mr Mourtekis could not say to the Tribunal, however, if there had been any difference in relation to the examination, although he could say that the first doctor had not examined him properly. Mr Mourtekis had said to the second doctor that he had neck problems, but the doctor had said there was nothing wrong with him and Centrelink had then automatically given him 10 points.
The Respondent referred Mr Mourtekis to the motor vehicle accident he had in 1994 and the question of the quantum of settlement. Mr Mourtekis replied that he had settled out of court for $40000.00- $50000.00 but he could not recall when, although he had settled his case before he had finished with his car yard business.
Mr Mourtekis told the Tribunal that he had seen Dr Guirgis following the accident, and the Tribunal notes that Dr Guirgis' report of 4 January 2001 indicates the first examination had occurred on 10 October 1995 (Exhibit A3). When the Respondent asked Mr Mourtekis whether he had told Dr Guirgis that he has had numbness since the accident, Mr Mourtekis replied that this numbness had been present from before the accident, but it became worse afterwards. The Respondent then referred Mr Mourtekis to Dr Guirgis' reference to the Applicant's history of suffering from neck pain and stiffness three years earlier, for which he was treated conservatively with tablets and physiotherapy, such that the neck pain had settled to a large extent with the neck becoming better as time passed. The Respondent then noted that Dr Guirgis also had reported that since December 1993, Mr Mourtekis had had no problems with his neck until the accident happened in November 1994 (Exhibit A3 p1). Mr Mourtekis responded that his problems go back to 1979. When the Respondent suggested that Mr Mourtekis had been trying to persuade Dr Guirgis and the Insurer that his problems had first arisen from the time of the accident, the Applicant replied that he never tells the doctor what to write.
The Respondent then referred Mr Mourtekis to his examination by Dr McCullum, where he was found to have a full range of neck movements. Mr Mourtekis told the Tribunal that he never had full movement in his neck, to achieve this he would feel extreme pain and he had told the doctor this but the doctor had treated him badly. Mr Mourtekis agreed that Dr McCullum had recorded two bouts of his having heart problems.
The Respondent referred Mr Mourtekis to his examination by Dr Phillips (from HSA), who had also observed a full range of movement in his neck and lower back, but Mr Mourtekis commented to the Tribunal that he has had these problems for a long time. Mr Mourtekis explained that he continues to have numbness in his hand, particularly during the night when his hands are still. During the day, Mr Mourtekis told the Tribunal that he gets rid of this problem by continually opening and closing his hands, but at night the numbness wakes him up. Mr Mourtekis demonstrated to the Tribunal how he has to shake his hands during the night to get rid of the pain. He also explained that he had been gesturing and moving his arms and hands during the hearing to relieve his numbness from sitting. Mr Mourtekis did agree that a lot of his sleeping difficulties related to his prostate problem but he is scared to have an operation.
In relation to his Disability Support Pension claim filed in July 1999, Mr Mourtekis agreed that his daughter Anna had helped him to complete the claim. When referred to his statement in the claim form that "Most times I am comfortable with the pain" (T3 p51), Mr Mourtekis stated to the Tribunal that he did not say he did not have pain, but that he puts up with it. In relation to his stomach problems, Mr Mourtekis agreed that he was taking "Zantac" at the time of his application but he could not recall when he had stopped. In relation to his stomach problems over the last two years, while this does not stop after taking medication, he can just bear the pain, Mr Mourtekis informed the Tribunal.
Mr Mourtekis agreed that he had been working in his car yard business until three months before his Disability Support Pension application but he explained he had employees for the heavy work. He had started with six employees but was then left with three, Mr Mourtekis told the Tribunal. By January 1999, there was just him and his daughter in the shop, his son having ceased working there in 1992 or 1993. If he needed a gearbox, it would not be taken out of a wrecked car, Mr Mourtekis stated, because he had old stock and everything that was needed was at the ready. Mr Mourtekis further added that he had stopped receiving wrecked cars about two or three years beforehand and if someone needed a car part they would have to get it out and put it in themselves. His customers had access to a lot of his old stock while he would sit in the office with his head on the bench, Mr Mourtekis stated. Although he could not say that he would be in such a state every day, if he did have a better day, he would do something less involved such as using a screwdriver.
Mr Mourtekis further stated that he had decided to sell his business about two or three years beforehand, but it was not easy to sell a business. He could not recall how long after the 1994 accident he had decided to sell because he had been concerned about his health. Mr Mourtekis also could not recall when his paid staff had ceased working in his business. He further added that he knew that running his business was going to be difficult after his accident, but he loved it and he had trusted himself that he would have been able to continue working. Initially he had been involved with the business and he agreed that he did lift heavy equipment, but this was with the assistance of two or three people together. Mr Mourtekis agreed that there was a great deal of bending and lifting involved in his work, as well as lying working on one's back under a car, but he told the Tribunal that two car hoists were used. Mr Mourtekis could not recall when he had stopped bending and lifting.
The Tribunal asked Mr Mourtekis about the lump in his neck referred to in the SSAT decision of 27 April 2000 (T3). Mr Mourtekis stated that he had had it taken out with an injection and had no further problems, but he did state that he sometimes still coughs up blood, having done so in July 1999, although he has not been able to discover where this blood comes from. Mr Mourterkis agreed that he did not raise this problem at the time of his claim because he did not think it was so important at the time.
Mr Mourtekis told the Tribunal that he does the shopping for the family at Woolworths, Revesby every 15 days. He further told the Tribunal that he does not get the whole of the groceries for the household, but gets a little bit each time, items like bread, milk or washing powder. Whenever he has money, he goes to Punchbowl markets but he does not wheel the food items to the car because the car is just next to the shop. At Woolworths, he does not use a trolley but carries the goods in his hands.
Mr Mourtekis agreed that he had told the SSAT that he weeds the garden. He further stated to the Tribunal that he is looking after 10 to 15 pot plants and that he often does the garden maintenance, but he does not grow vegetables. Mr Mourtekis also stated that he does handyman jobs around the house, such as painting the outside of it. He also stated that he drives the car by himself as his wife and daughter do not drive. He could not estimate for the Tribunal how many kilometres distance it was from his house to Punchbowl, but it was twenty minutes to the Revesby shops. Mr Mourtekis further told the Tribunal that he drives to his church at Bankstown and to visit friends and relatives in Punchbowl, Belmore and Yagoona, but he does not drive his car to go on picnics, outings or sightseeing. He further stated that if he had money, he would only drive his car more if he were well. He also explained to the Tribunal that he does not drive his daughter to parties because she does not go anywhere. When the Tribunal referred Mr Mourtekis to the fact that in July 1999 he was able to sit down for half an hour at a time, walk for ten minutes and cover 500 metres, Mr Mourtekis stated that he has never walked to stay fit. He also informed the Tribunal that he had travelled to the hearing by train.
Mr Mourtekis told the Tribunal that he had seen the Legal Aid Commission this year and they had referred him to a doctor but he had not seen him. Mr Mourtekis denied that he had been told by Legal Aid to put in another claim for the Disability Support Pension. He further stated that since selling his car parts business, he has been too sick to make any effort to find work and although there might be some jobs that he could do, his headaches, dizziness and swollen legs leave him unable to work. Mr Mourtekis added: "I want to work but my body won't let me." He further stated that because of his headaches, he could not work as a toll collector as he could not stand up. Mr Mourtekis also denied that in July 1999 he could have worked as a gatekeeper, because of his pain and furthermore, his neck pain and dizzinesss would also have prevented him from working as a parking attendant or from doing light factory or bench assembly work because he could not concentrate. Mr Mourtekis confirmed that his Newstart Allowance is $350.00 per fortnight.
EVIDENCE OF MS ANNA MOURTEKIS
Ms Mourtekis told the Tribunal she has lived with her father at the Beaconsfield Road address all her life. Ms Mourtekis confirmed that the business had been sold in June 1999 and that it had been just herself and her father working there for years, because as her father's health had deteriorated, they could not keep up with customer demand. Ms Mourtekis further told the Tribunal that at the beginning they had a lot of staff, with about ten people in April 1990, but they had to let them go following her father's accident in 1994.
Ms Mourtekis was referred to the list of medical problems in her father's application form (T3 p46) and when asked if she had helped her father compile this, she agreed that she had done so and that the list of health complaints reflected her father's problems as at July 1999. Ms Mourtekis confirmed her father's evidence that apart from his problems with his heartbeat and stomach, which were currently under control, his other conditions are getting worse. Ms Mourtekis then referred to a list of "current medication" being taken by her father (Exhibit 4). She elaborated for the Tribunal the details of her father's medication as well as the reasons for its prescription and the length of time each tablet was taken by her father. For the purposes of publication, this evidence is recorded as follows:
Number Name Condition
Sandomigran "for nerves"
Dothiepin Depression
Pressin Hypertension
Tritace Blood pressure
Naproxen Pain in the neck Nonsteroidal anti-inflammatory
Neo-Cytamen Vitamin B12 Injections for blood condition
Stemetil Dizziness, nausea
Voltaren "for nerves" Nonsteroidal anti-inflammatory
Brufen Nonsteroidal anti-inflammatory
Epilim For liver problems, jaundice
Ibilex An antibiotic
Zantac For serious stomach problem

Ms Mourtekis explained to the Tribunal that the "Dothiepin" tablets are helping her father's depression and although the dizziness and nausea are more apparent now, the jaundice is better and the stomach is also "good." However she added that her father has to take "Panadeine" if all the above medication does not work and he may have to take up to six to eight tablets per day, depending on the pain, two or three times per week. In 1999 by contrast, Ms Mourtekis told the Tribunal that her father's pain was not as bad and he did not take Panadeine on a weekly basis.

When the Tribunal referred Ms Mourtekis to her father's interviews with the Health Services Australia doctors, she stated that when both doctors checked the degree of rotation of her father's neck, he cringed with pain. She further added that her father's appointment with Dr McCullum was five or ten minutes long and that no interpreter had been present. In regard to other aspects of the examination, Ms Mourtekis stated that Dr McCullum had asked her father to turn his head while he was standing up. She added that Dr McCullum did not have the specialists' reports at the time. In relation to Dr Phillip's examination of her father, Ms Mourtekis stated to the Tribunal that this was better than the first doctor's examination in that it was longer, the doctor spent more time examining her father and an interpreter was present.
Ms Mourtekis then told the Tribunal that during the day her father, being a handyman, does "what he can when he can" but whatever he does, such as mowing the lawn or washing the dishes, he does so with difficulty. The difficulty her father experiences this time is about the same as when he applied for the pension, Ms Mourtekis explained to the Tribunal. When the Tribunal asked Ms Mourtekis if her father were to be tested for eligibility for the pension now, whether he would obtain a higher score than in 1999, she replied that her father had severity [of pain] in July 1999 and he was so sick so often, that was why he sold the shop. Ms Mourtekis further added that her father's working in the shop became dangerous with the result that the shop became self-service and she did everything else.
When asked whether, before the business had been sold she had told her father to sell the shop, Ms Mourtekis replied that as she could see that her father's health was not getting better, they had to do something. Ms Mourtekis further stated that her father would not be able to do other work because of his difficulties with pain, headaches and nausea. She added that no medical reports were obtained from around that time because "it was either medical reports or food on the table," and further, that her father needs a lot of medical treatment but he cannot afford to pay for it. In relation to her father's pension claim of 1999 and whether anyone in the family had been working at the time, Ms Mourtekis stated to the Tribunal that her mother had always been a housewife and although her brother had helped from time to time, he has his own debts.

Ms Mourtekis agreed with the Respondent that her father had not been on "Pressin" or "Tritace" in July 1999 and that he had been taking "Naproxen" in place of "Brufen". Ms Mourtekis also told the Tribunal that her father had been given "Neo-Cytamen" injections in the last couple of months but he has been having difficulty with these. Ms Mourtekis also stated that her father has been on "Stemetil" for a long time but he only tries to take it when he is about to vomit or "drop." Ms Mourtekis also stated to the Tribunal that as at July 1999, her father had been taking "Zantac" only, "off and on," whenever it was really serious. In relation to the issue of compliance with medication, when the Tribunal asked Ms Mourtekis whether her father himself makes the decision as to whether or not he needs medication, she agreed that this was so, but she further stated that her father takes what he really needs and that the doctors know this. Ms Mourtekis also agreed with the Respondent that when her father had indicated that he was taking "Voltaren" for "nerves", he had not intended "nerves" to equate with depression but with nervous pain.
When questioned by the Respondent on the issue of the Applicant's role in the business and when the hired help had left, Ms Mourtekis told the Tribunal that over ten years ago, the business had started with many staff but these were lost or shed along the way. When further asked when the business had stopped buying cars for wrecking, Ms Mourtekis replied it had been in the last few years. When the Respondent asked Ms Mourtekis how, for someone so involved in business, she could be so vague, Ms Mourtekis replied the business had stopped buying car wrecks "in the last year or so." Ms Mourtekis further stated that the business had started to become a worry when the Applicant had begun to have problems with his "head". In response to the Respondent's question as to why her father's deteriorating health had such a disproportionate effect on the running of the business when it relied on its employees, Ms Mourtekis replied that to run the shop properly, a couple of people were needed. In response to further questioning as to whether anything else had happened to affect the business, Ms Mourtekis replied that the car accident had been a factor but not the downturn in the industry itself.
Ms Mourtekis told the Tribunal that subsequent to the medical reports, the Applicant did not have any Insurance Company reports. In relation to whether the Legal Aid Commission had referred the Applicant to any doctors, Ms Mourtekis stated that she and her father had only received the Impairment Tables from Legal Aid.
Ms Mourtekis then informed the Tribunal that the Concord family home had been sold in 1997. She also stated that the Applicant does the shopping by himself if it is "just a bit," but if it is heavy and many items are required, she assists him. In response to the Respondent's question as to when she goes shopping with her father, Ms Mourtekis explained that the Applicant drives her to Woolworths for groceries and they usually go shopping once per fortnight. Ms Mourtekis further added that the loans, bills etc. are her responsibility and she goes out and pays these. When the Respondent asked Ms Mourtekis whether she had been working in July 1999, Ms Mourtekis replied that she was living at the Beaconsfield Street house then, the shop had just been sold and she had not obtained another job but had gone back to school. In response to the Tribunal's question as to whether she was working now, Ms Mourtekis stated that she was not but was doing a course in banking and her last job had been office work.
RECENT MEDICAL EVIDENCE
Dr Yiannikas, Consultant Neurologist
Dr Yiannikas provided two reports dated 11 October 2000 (Exhibit A1) and 5 April 2001 (Exhibit A2). Dr Yiannikas examined Mr Mourtekis on 14 December 1993 and 2 August 2000.
Dr Yiannikas concluded that Mr Mourtekis' symptoms were consistent with pathology predominantly affecting the C6 nerve root. An EMG showed features of chronic partial denervation consistent with C6 root pathology. A CT scan performed at the time confirmed the presence of spondylitic disc lesions at C4/5, C5/6 and C6/7.
Mr Mourtekis was reassessed on 12 November 1997, when he was continuing to complain of neck pain and pain radiating predominantly down his left arm associated with numbness. He was continuing to complain of headaches.
On review in August 2000, Mr Mourtekis complained of neck pain, numbness in both hands, pain in the left arm and difficulty with his left leg. Mr Mourtekis had weakness at the left triceps, left ECR Grade 4/5, in addition to wasting of the left arm and left leg. A repeat EMG continued to show significant chronic denervation in the left arm muscles consistent with root pathology.
Dr Yiannikas opined that the symptoms of weakness, pain and secondary headaches are consistent with cervical and lumbo-sacral radicular disease. Mr Mourtekis' impairment probably would be sufficient to prevent him from working for at least 30 hours per week over the next two years, Dr Yiannikas further opined. Possible forms of other employment included sedentary office-type work.
The difficulty for Mr Mourtekis in retraining is that his continuous headaches and neck pain make it difficult for him to undergo extensive educational training over a two year period, with little likelihood that retraining would equip Mr Mourtekis with new skills.
Dr M Guirgis, Consultant Orthopaedic Surgeon
Dr Guirgis reported on 4 January 2001 (Exhibit A3), that Mr Mourtekis has the following pathological entities:
1.Post-traumatic chronic mechanical derangement including chronic musculo-ligamentous sprain/strain of the cervical area of the spine which has aggravated the effects of underlying degenerative changes. There was evidence of the right and left C5 to T1 nerve roots bilaterally most marked in the C7/8 ennervated muscles. At the elbows, there was a manifestation of "Double Crush Syndrome."
2.Discopathic and spondylotic changes causing chronic mechanical derangement of the lumbar area of the spine.
3.Secondary osteoarthritis of the left hip with possible hip dysplasia with shortening of the left femur and wasting of the left thigh and calf muscles.
Dr Guirgis provided the following assessments:
  Cervical spine function    (Table 5.1)      10 points
  Lumbar spine function    (Table 5.2)       10 points
  Lower limb function        (Table 4)         10 points
Upper limb function       (Table 3)        5 points (non-dominant
upper limb)
Upper limb function       (Table 3)      10 points (dominant upper
limb)

Dr Guirgis concluded that Mr Mourtekis has continuing significant multi-regional disability and is permanently unfit for work or other activities involving heavy or repeated lifting or twisting, prolonged unrelieved static posturing of the trunk or jarring of these structures. Mr Mourtekis could not do labouring work or sedentary or sitting-based process or assembly work. Other limiting factors for Mr Mourtekis include language limitations, previous work history, educational attainment and chronic pain syndrome.

Submissions

Ms Mourtekis, on behalf of her father, submitted that the Tribunal should find that in relation to the issue of the impairment rating, the medical evidence and X-rays show many long term medical problems in her father's spine. Ms Mourtekis also submitted that her father suffers from a variety of other medical problems, as listed in Exhibit A4 and her letter of 25 February 2000 (T33). Ms Mourtekis submitted that the Applicant suffers side effects from the medication he takes. However, she contended that her father needs all of these treatments but cannot afford them. Ms Mourtekis further submitted that the Applicant needs a minimum of seven to ten tablets per day and that according to Dr Guirgis' report, the Applicant is entitled to an Impairment rating of 45 points.
Ms Mourtekis then submitted that the second issue that the Tribunal should consider is that the Applicant's medical problems do not allow him to do any type of work. By way of an example, Ms Mourtekis referred the Tribunal to the dizzy spell suffered by the Applicant on 15 December 1996 and the danger it presented.
Ms Mourtekis then submitted the third issue which the Tribunal should consider is the fact that the doctors at Health Services Australia did not have the full facts before them, their assessments were incomplete and that the Applicant had not been asked to be re-examined in person. Ms Mourtekis further submitted that the fourth issue to be considered by the Tribunal is that of the pain suffered by the Applicant.
In her final submissions to the Tribunal, Ms Mourtekis elaborated on the 1996 incident that led to her father being admitted to The Canterbury Hospital. Ms Mourtekis explained that the Applicant had not been feeling well and his hands and legs had gone numb on the steering wheel. He was also experiencing headaches and dizziness and he just managed to pull up at a service station to which the ambulance was then called. Ms Mourtekis stated that the Applicant was also experiencing neck problems.
In her concluding remarks, Ms Mourtekis submitted first that the Applicant's medical conditions had affected him severely, his health had been deteriorating and he was depressed about this. Second, Ms Mourtekis stated that Health Services Australia did not have the full evidence when they had assessed the Applicant and the assessments were incomplete and ill-informed. Ms Mourtekis also submitted that the evidence at hand in relation to the 1994 car accident was old and that in fact the car accident had made the Applicant's symptoms worse. Ms Mourtekis finally concluded that Health Services Australia had erred in its impairment rating of the Applicant. The Tribunal should consider an impairment rating of 45 points as assessed by Dr Guirgis , as well as the Applicant's inability to do any alternative work.
The Respondent's submission to the Tribunal was that although the Applicant had a number of medical conditions, the impairment ratings for these conditions were not enough to afford him eligibility for the Disability Support Pension: the Applicant needed to be able to show how these affected his mobility and other functioning. The Respondent's contention was that the best contemporaneous evidence on the Applicant's condition was provided by the two Health Services Australia Reports. The Respondent contended that the recent medical evidence is a long way beyond the original claim and further, that the rating given by the SSAT was correct.
In his final submissions, Mr Kenny for the Respondent pointed out that during evidence-in-chief, Mr Mourtekis had raised new conditions related to the deterioration of his health and new symptoms in regard to the pain in his right knee. Mr Kenny submitted that there is a need to be careful when looking at evidence obtained recently. Mr Kenny pointed out that there was only one medical condition that was worse in July 1999 and that was in relation to the Applicant's stomach problem, but even this was intermittent.
Mr Kenny further submitted that the Applicant's symptoms had a long history but the medical reports recently submitted by the Applicant are too far from the point of claim. In particular, Dr Guirgis' recent report was well after the Applicant's claim and furthermore, there was little in the report to connect the diagnostic findings with the ratings Dr Guirgis had given. Mr Kenny also pointed out that Dr Yiannikas' report did not give any impairment ratings. Furthermore, neither reports are reasonably contemporaneous with the Applicant's claim, Mr Kenny submitted. He further submitted that the Tribunal had heard the Applicant describe how his symptoms have worsened, but the appropriate test of this new evidence is for Mr Mourtekis to make a new claim. Hence, Mr Kenny concluded that the Applicant did not qualify for the Disability Support Pension as of July 1999. Mr Kenny, for the Respondent, accepted that there is a multi-site for the applicant's pain, but he submitted that the appropriate rating for the pain is ten points. In relation to the other conditions, the prostate problem could be treated with surgery and the depression was mild and not rateable. In his closing remarks, Mr Kenny for the Respondent, readily conceded that the evidence proves that the Applicant is not capable of heavy work, but at the time he made his claim for a Disability Support Pension, Mr Mourtekis could do light work, Mr Kenny submitted. Accordingly, the Applicant should consider making a fresh claim, Mr Kenny concluded, in order that Mr Mourtekis' new and worsening conditions can be assessed.

FINDINGS

The Tribunal has reached a decision in this matter, taking into account the oral and documentary evidence, the submissions and legislation.
Mr Mourtekis and Ms Mourtekis provided straightforward evidence and the Tribunal considered them to be credible witnesses.
Before assessing Mr Mourtekis' claimed conditions, the Tribunal notes a number of worsening conditions and new conditions described by Mr and Ms Mourtekis at hearing and recorded in Dr Yiannikas' and Dr Guirgis' reports. These new or worsening conditions include: numbness, tingling and pins and needles spreading from the inner borders of the elbows down the forearms and into the hands with numbness of the hands and fingers; wasting of the left arm and leg; hip condition; removal of a lump in Mr Mourtekis' neck and associated bleeding from time to time; pain in the right knee; and, worsening neck condition, dizziness and headaches.
The parameters of the claim for Disability Support Pension have therefore considerably widened since Mr Mourtekis lodged his claim on 14 July 1999 (T3). The Tribunal is only able to make an assessment in relation to those conditions contained in Mr Mourtekis' original claim which have been diagnosed, treated and stabilised, as referred to in the explanatory notes to the Impairment Tables contained within Schedule 1B to the Act.
The Tribunal finds that Mr Mourtekis suffers from neck and back pain, arm and leg pain and numbness of the hands. He also suffers from atrial fibrillation, prostatic hypertrophy, headaches, intermittent stomach problems and anxiety and depression. Thus, Mr Mourtekis satisfies subsection 94(1)(a) of the Act in that he has physical and psychiatric impairments.
The Tribunal turns to consider subsection 94(1) (b) of the Act concerning the impairment points each condition attracts.
Cervical Spine
Mr Mourtekis has told the Tribunal that this condition has worsened. The Tribunal considers the rating appropriate to Mr Mourtekis' claim is nil points under Table 5.1 to reflect normal or nearly normal range of movement. The Tribunal notes that as at 4 January 2001, Mr Mourtekis has a loss of one half the normal range of movement as assessed by Dr Guirgis. This worsening could be reflected in Mr Mourtekis' making another claim for Disability Support Pension, if he wishes to do so, to include this worsening and any other conditions not previously claimed.
Thoracolumbar Spine
The Tribunal determines that the appropriate rating, relevant to the claim is nil points under Table 5.2 to again reflect Mr Mourtekis' range of movement at the time of claim. The Tribunal also notes Dr Yiannikas' report of 11 August 2000 (Exhibit A1), in which it is noted that Mr Mourtekis had no back pain in 1997.
Currently, as recently assessed by Dr Guirgis, Mr Mourtekis has the loss of one quarter the range of movement, but again, he may consider making this worsened condition the subject of a new claim.
Numbness in both arms
The Tribunal considers that the appropriate ratings under Table 3, Upper Limb Function, is nil for the dominant and non-dominant arms, to reflect that at the time of claim, there was some evidence of loss of sensation with mild interference with hand function and manual handling. The descriptions provided by the higher ratings do not accord with all the evidence relating to Mr Mourtekis' upper limb function at the time of his claim.
Lower Limb Function
Under Table 4, the Tribunal determines the appropriate rating is nil to reflect the symptomology at the time of Mr Mourtekis' claim. The Tribunal notes the current rating for limb function assigned by Dr Guirgis on 4 January 2001 is ten points.
Anxiety-Depression
68. The Tribunal finds that the appropriate rating under Table 6, Psychiatric Impairment, is nil to reflect the Table's description of mild but regular symptoms causing subjective distress. Mr Mourtekis does not see a psychiatrist but takes medication prescribed by his General Practitioner to assist with this condition. His General Practitioner in a sense provides a counselling role. The Tribunal considers the nil rating reflects Mr Mourtekis' circumstances relevant to his claim.
Benign Prostatic Hypertrophy
The Tribunal's understanding of all the evidence is that this condition seems to have considerably worsened, although Ms Mourtekis' statement is that the condition is the same as it was in 1999. Mr Mourtekis was recommended to have an operation three years ago and most recently is considering an operation in Melbourne. The Tribunal finds that the appropriate rating under Table 16 relevant to Mr Mourtekis' claim is nil points to reflect his frequency problems, bladder outlet and symptoms. If Mr Mourtekis were to submit a claim to reflect his current symptomatology, a higher rating would need to be carefully considered.
Atrial Fibrillation
This condition seems to be at the same level as at the time of claim, although Mr Mourtekis' evidence is that there was an earlier period of worsening. He still experiences irregular heartbeat from time to time but takes no medication. The Tribunal finds the appropriate rating is nil points under Table 21 for Intermittent conditions.
Stomach Problems
The Tribunal noes that neither HSA nor the SSAT rated "stomach problems" as claimed by Mr Mourtekis (T3 p46). The Tribunal further notes that Dr Dracos, in his report of 19 January 2000 (T31), does not mention these problems. The Tribunal has also not rated Mr Mourtekis' stomach problems as it is unsure of the diagnosis of the condition.
Chronic Pain
Mr Mourtekis experiences chronic pain from his neck, including headaches, back and legs. Table 20 enables chronic pain to be assessed where other system specific tables do not cater for such symptoms. The Tribunal considers that the appropriate rating is 10 points to reflect the mild to moderate symptoms at the time of claim, associated with pain in his neck, back, legs and headaches. These symptoms had some impact on Mr Mourtekis' ability to work but did not prevent many everyday activities or self-care.
In summary, the combined impairment rating for all of Mr Mourtekis' claimed conditions is ten points.
74. The Tribunal considers that Mr Mourtekis' conditions have worsened considerably since his claim, as supported by Mr and Ms Mourtekis' evidence and the opinions of Dr Yiannikas, Dr Dracos and Dr Guirgis. If Mr Mourtekis were to lodge another claim for Disability Support Pension to reflect his worsening conditions and any new conditions with the expert opinions that he is unable to work, then this new and consistent evidence would be able to be considered by the Department.
Unfortunately however, the Tribunal's determination in relation to Mr Mourtekis' 1999 claim is that at that time Mr Mourtekis did not satisfy the requirements of subsection 94(1)(b) of the Act in that he has not reached the requisite 20 points. In such circumstances, as one of the requirements to satisfy section 94 of the Act is not met, the section as a whole is not met and at the time of his claim, the Tribunal determines that Mr Mourtekis was not qualified for a Disability Support Pension.

Accordingly, in all the circumstances and for the reasons set out above, pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal determines that the decision under review is affirmed.

I certify that the 76 preceding paragraphs are a true copy of the reasons for the decision herein of Ms SM Bullock, Senior Member
Signed:         .....................................................................................
  Stella Vaughan, Associate
Date of Hearing  12 April 2001
Date of Decision  6 July 2001
Representative for the Applicant              Ms Anna Mourtekis, Applicant's
Daughter

Representative for the Respondent Mr John Kenny, Departmental Advocate