Nazenin and Secretary, Department of Family and Community Service S

[2003] AATA 574

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 574

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2002/1363

GENERAL ADMINISTRATIVE DIVISION		)
Re		ABBAS NAZENIN

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal REAR ADMIRAL A R HORTON AO 

Date19 June 2003

PlaceSydney

Decision The decision under review is affirmed

[Sgd] Rear Admiral Horton, AO
  Member

CATCHWORDS

SOCIAL SECURITY – cancellation of disability support pension – claim for reinstatement – whether Applicant has physical, intellectual or psychiatric impairment – whether impairment is 20 points or more vide Schedule 1B of the Social Security Act – whether Applicant has continuing inability to work – ability to undertake educational or vocational training

Social Security Act 1991 – section 94, schedule 1B

Social Security (Administration) Act 1999 – section 80

Re Simek and Secretary, Department of Social Security (1991) 24 ALD 727

REASONS FOR DECISION

19 June 2003 REAR ADMIRAL A R HORTON AO      

1.      Mr Abbas Nazenin, the Applicant in this matter, seeks review of a decision of the Social Security Appeals Tribunal (“the SSAT”) on 24 June 2002 which affirmed a decision of an Authorised Review Officer (”ARO”) on 10 April 2002 to cancel payment of the disability support pension (“DSP”).   The decision by the ARO had in turn affirmed the original decision by an authorised delegate of the Secretary, Department of Family and Community Services (“the Respondent”) dated 7 December 2001, which determined that the Applicant was not eligible for the continuation of payment of the DSP.

2.      The Applicant lodged an application for review by the Administrative Appeals Tribunal (“the Tribunal”) on 17 September 2002 (T1).  This lodgment date was outside the 28 day statutory limit in which to lodge an appeal due to the absence of Mr Nazenin in Turkey when the SSAT decision (T2) was published, the Respondent conceding that review of the decision should proceed.

3.      At the hearing before the Tribunal on 24 April 2003, Mr Nazenin was self-represented.  Ms J Green, an advocate for Centrelink, represented the Respondent.   The Applicant gave evidence, as did Mr Muharrem Bicer and Mr Kamil Sahin Dokuyucu on his behalf.  Ms Ozan Nermin, an interpreter fluent in the Turkish language, was present to assist the Tribunal.

4. The Tribunal had before it the documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act1975 (“the T documents”). The Tribunal also took into evidence the following documents:

Exhibit A1     Report by Dr C Irani, Orthopaedic Surgeon, dated 9 December 2002

Exhibit A2Report by Dr B Mahmood, General Practitioner, dated 5 November 2002 

Exhibit A3Report by Dr B Mahmood dated 17 February 2003

Exhibit A4Statutory Declaration by the Applicant dated 25 February 2003

Exhibit A5Report by Dr A Capa, General Practitioner, dated 9 April 2003

Exhibit A6Report by Dr M Ebrahimi, General Practitioner, dated 22 April 2003

Exhibit R1 Videotape of surveillance of the Applicant by Peter A Cox and Associates for the period 28 August 2003 to 14 September 2003

BACKGROUND

5.      Mr Nazenin was born in Turkey in 1953, and migrated to Australia in November 1977, having received some schooling at secondary level, and then working as a farm hand before undertaking military service.  He gave evidence that he was employed by Broken Hill Proprietary in Wollongong from 1977 until 1986, during which period he was involved in accidents “three or four times”, the last confining him to light duties work, which was not available with his then employer.   A resultant compensation case was settled in 1990, at which time he moved to Sydney, undertaking some light work until being granted the DSP in 1992.  

6.      Following advice received on 30 May 2001 that Mr Nazerin was working at Diptron Pty Ltd, (trading as EGE Fine Foods), a food wholesale company located at Blacktown, the Respondent arranged for surveillance.  The report from Peter A Cox and Associates is at T8. The resultant videotape was taken into evidence as Exhibit R1.

7.      Mr Nazenin completed a Medical Review Form on 18 October 2001, this being accompanied by a Treating Doctor’s Report by Dr M Chowdhury, General Practitioner, in which he diagnosed conditions of neck and lower back pain, right wrist pain and depression.  A medical assessment was completed by Dr S Graudins of Health Services Australia (“HSA”) on 20 November 2001, his findings being that Mr Nazenin had 20 impairment points and a continuing inability to work.

8.      On 30 November 2001, Dr N Rose of HSA undertook a file examination (T14), this taking into account the video record (Exhibit R1).  Dr Rose assessed the full impairment rating as 15 points, with the Applicant being fit for full-time work.  On the basis of that report, DSP was cancelled on 7 December 2001 (T17).  On review by an ARO (T29), and in turn the SSAT (T2), the total impairment rating was assessed at 5 points (both authorities being of the opinion that contrary to the opinion of Dr Rose, no points could be allocated for a depressive condition).  Mr Nazenin is presently in receipt of Newstart Allowance.

LEGISLATION 

9. Section 94 of the Social Security Act 1991 (“the Act”) defines the qualification criteria for the DSP, and states, relevantly:

"94 Qualification for disability support pension

94(1) A person is qualified for disability support pension if:

(a) the person has a physical, intellectual or psychiatric impairment; and

(b) the person's impairment is of 20 points or more under the Impairment Tables; and

(c) one of the following applies;

(i) the person has a continuing inability to work;

(ii) the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and

(d) the person has turned 16; and

(e) the person either;

(i) is an Australian resident at the time when the person first satisfies paragraph (c); or

(ii) has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or

(iii) is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:

(A) is not an Australian resident; and

(B) is a dependent child of an Australian resident;

and the person becomes an Australian resident while a dependent child of an Australian resident.

…

94(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that :

(a) the impairment is of itself sufficient to prevent the person from doing any work within the next 2 years; and

(b) either:

(i) the impairment is of itself sufficient to prevent the person from undertaking educational or vocational training or on-the-job training during the next 2 years; or

(ii) if the impairment does not prevent the person from undertaking educational or vocational training or on-the-job training - such training is unlikely (because of the impairment) to enable the person to do any work within the next 2 years.

…

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

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

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

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

94(5) In this section:

...

"work" means work:

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

(b) ..."

10. Section 80 of the Social Security (Administration) Act1999 provides the authority for the cancellation of a pension, stating relevantly:

“80 Cancellation or suspension determination

(1)If the secretary is satisfied that a social security payment is being, or has been, paid to a person:

(a)who is not, or was not, qualified for the payment; or

(b)to whom the payment is not, or was not payable:

the secretary is to determine that the payment is to be cancelled or suspended.”

11. Impairment is assessed against the work-related Impairment Tables at Schedule 1B of the Act. The introduction to the Tables states, relevantly:

"…

2. These tables are designed to assess impairment in relation to work and consist of system based tables that assign ratings in proportion to the severity of the impact of the medical conditions on normal function as they relate to work performance. These Tables are function based rather than diagnosis based. ...

3. These tables give particular emphasis to the loss of functional capacity that a person experiences in relation to work. ...

4. A rating is only to be assigned after a comprehensive history and examination. For a rating to be assigned, the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. ...

5. The condition must be considered to be permanent. ...

6. In order to assess whether a 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 2 years.

In this context, reasonable treatment is taken to be:

Treatment that is feasible and accessible, ie, available locally at a reasonable cost;

...

It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment ...In those cases where significant functional improvement is not expected...it may be reasonable to consider the condition stabilised.

...

8. In general, pain or fatigue should be assessed in terms of the underlying medical condition which causes it. ..."

EVIDENCE

12.      Mr Nazenin confirmed in evidence that he ceased work in 1992 when he was granted the DSP.  In 2001 he returned to part-time work for a short period in response to a request from a friend who was the owner of the business known as Diptron Pty Ltd.  He gave evidence that he was employed from 9 July 2001 to 28 September 2001 as a casual part-time cleaner (Exhibit A4), his tasks being to clean floors and tables.  He stated that he advised the Respondent of his intention to undertake part-time work.  Mr Gursel Ozme, the owner and a director of Diptron, confirms these employment dates at T12 p 34, this being in response to a questionnaire from the Respondent.

13.     At Exhibit A4 and in oral evidence Mr Nazenin stated that at no time did he work for more than eight hours per week.  Mr Ozme defined the Applicant’s hours of work as “approx 1 ½ (one) [sic] hour per day – approx 8 (eight) hour per week.” (T12, p 35).  As regards his wages during this period of employment, Mr Nazenin gave evidence that he was not paid more than $80 per week, a gross wage confirmed by Mr Ozme.  In response to a question as to why he ceased this part-time work in September 2001, Mr Nazenin stated that his wife opposed any further work and he wished to have more time to look after his children.  

14.     Mr Nazenin gave evidence that he was comfortable working at Diptron because he could work at his own pace.  Whilst he only worked for eight hours per week, he would often be at the premises of Diptron for much longer, as he enjoyed the company of other employees, could relax and read papers and books, and as he advised the Respondent’s doctor, he needed to “go out”.   In response to Ms Green’s questioning, he stated that home was “boring” and going to work helped with his depression.  If he went to a club, he said he would spend money that he could not afford.  For the above reasons, the Applicant still spends time at Diptron, although he is no longer employed there.

15.     The Applicant described the medical conditions that prevented him working as neck and back pain, wrist pain and depression.   His neck and back pain are relatively constant, leading to headaches, and while he can turn his neck and head, he “just feels the pain”..  He gets cold feet which Dr Thompson, an orthopaedic specialist that he saw on three occasions in late 2002, attributed to his back condition.  (No report by Dr Thompson was available to the Tribunal).  The Applicant cannot stand or sit for too long, but can travel for reasonable distances on public transport.  He described his wrist pain as effecting his writing, and whilst it also effects his ability to twist and turn and push with his hand, which suffered an injury requiring three to four stitches after an accident in the 1980s, it “does not restrict a lot, but is painful as I do things”. 

16.     As to depression, the Applicant provided little description as to how this effected his life.  To cope with his depression, he visits Diptron, a club or the shops, and he also takes walks. The Applicant stated that he gets angry at home and with his children, although he generally gets on well with the children.  His relationship with his wife is “so-so” which he assumed was because of his depressive condition.  He has received no specialist treatment.  Dr Mahmood, his General Practitioner, notes at Exhibit A3 that the Applicant was not responding to medication for depression, but Dr Mahmood makes no reference to any particular medication.  Dr Chowdhury notes on 7 January 2001 that the Applicant is on medication, with no significant improvement, but also makes no reference to any particular medication.  Mr Nazenin stated that since 1986 he had taken many medications, and was presently taking the anti-depressant Endep. 

17.     The Tribunal was shown a video taken during surveillance of the Applicant  over thirteen consecutive weekdays, from 28 August to 14 September 2001.  In the main, these showed Mr Nazenin entering and leaving the premises of Diptron Pty Ltd, and on one occasion driving a forklift within the premises.  There was no surveillance within the buildings, which Mr Nazenin submitted would have confirmed his conditions of employment.

18.     The video showed Mr Nazenin:

·     arriving and departing by Holden station wagon, with no apparent disability in respect of entering or leaving the vehicle, turning his head to observe traffic, or opening the vehicle doors or the tailgate, and bending into the vehicle.

·     walking slowly but easily to and from the vehicle. On 3 September, the video shows him walking briskly without apparent difficulty.

·     opening and closing (and locking/unlocking) the external gates to the premises on most days (a duty given him by the owner), without any apparent difficulty.  The video did not reveal problems in bending, nor in manipulating the locks with the right hand. 

·     carrying bags in one or both hands, and placing them in the vehicle.

·     Operating a forklift with no apparent difficulty.

19.       Mr Muharrem Bicer gave evidence for the Applicant.  He has been a family friend since 1991.  He identified Mr Nazenin as a priest, a position that had not been addressed by the Applicant in his evidence, with responsibilities to assist with funerals of persons in the Turkish community, and to provide counselling in those circumstances.  He was aware that Mr Nazenin had back pain, and had observed him lying on the floor for respite.  Mr Bicer was not aware of any other medical conditions, but knew that Mr Nazenin sometimes went swimming for relief.  He described Mr Nazenin as very quiet, but that he sometimes showed anger and stress.  Mr Bicer believed the latter resulted from economic problems.

20.      Mr Kamil Sahin Dokuyucu also gave evidence for the Applicant.  He has known the Applicant for some eight to ten years, and sees him every few days.  Mr Dokuyucu and the Applicant visit each other in their homes.  He confirmed that the Applicant is a priest who assists with funerals “once or twice a year” and provides related cultural services to the Turkish community.  Mr Dokuyucu understands that Mr Nazenin cannot work because of his medical conditions, including cold feet, constant back pain (this being a source of daily complaint), asthma and blood pressure.  Whilst Mr Dokuyucu had not visited Diptron, he was aware that the Applicant had watched over that facility in the absence of the owner. 

MEDICAL EVIDENCE

21.      The Treating Doctors Report accompanying the Applicant’s claim was completed by Dr M R Chowdhury on 15 October 2001 (T11, p 28).  He diagnosed neck pain, lower back pain, right wrist pain and depression.  In respect of the latter, he indicated treatment by counselling, and considered the condition to be fluctuating.  He made no comment as to whether the condition was long term or temporary.  He considered the Applicant fit to try light duties for eight hours per week, to be reviewed in three months.  In a later report of 7 January 2002, Dr Chowdhury stated “he is suffering from ongoing neck and back pain with radiation to both legs, associated with secondary (sic) depression”, noting that the Applicant is “on medication” and restating his fitness for light duties.   In a further report of 7 March 2002, Dr Chowdhury confirms his diagnoses, but opines that the Applicant “is still unfit for work” (T26, p 78).  In a medical certificate dated 25 April 2002, Dr Chowdhury variously opines that the Applicant is fit for light duties for eight hours or more a week, and that such fitness should be achieved within three months (T41, p 99).  He is uncertain as to the long term future.

22.      A radiological report from North West Radiology (Dr Wong) dated 7 January 2002 concluded that there is minor broad-based bulging of the L4/5 and 5/S1 discs, but there was no evidence of nerved root compression or spinal stenosis (T25, p 77).  Dr Richard Lin of the Family and Child Medical Clinic at Kings Langley, noted on 4 June 2002 that the Applicant “suffers longstanding L4/5 disc prolapse and sciatica”, but made no comment as to the effect this may have on the Applicant (T43, p 102).

23.      Specialist opinion in respect of the neck and back conditions was provided by Dr C Irani in reports dated 29 April 2002 (T40, p 98) and 9 December 2002 (Exhibit A1).  In the former, Dr Irani draws on the CT scan, and states that the Applicant “suffers from chronic low back pain and will have difficulty in doing jobs requiring repetitive bending or lifting”.  Dr Irani states that the latter is written at the request of the Applicant.  He notes that the Applicant was first reviewed in 1990, and that his chronic back pain “has interfered and affected him from being gainfully employed, and that he has undergone intensive conservative treatment”..  Dr Irani notes that a recommendation by Dr Sengupta for spinal surgery was not followed up.  He further notes that on occasions Mr Nazenin presented with severe depression because of the ongoing back pain and an inability to work.

24.      Dr B Mahmood of Mayne Health Medicentre recorded in late 2002 or early 2003 (Exhibits A2 and A3) that Mr Nazenin regularly attended that practice with the health problems previously noted.  In both reports he noted headaches, and stated that various conditions are being, or have been, referred for specialist opinion or treatment.  Dr Mahmood opined on 5 November 2002 that “I don’t think this gentleman will be able to work normally on full-time” (Exhibit A2).   Dr M Ebrahimi of Castle Tower Medical Centre recorded at Exhibit A6 that he has known the Applicant for ten years, but it is not made clear whether that was in the context of providing medical treatment.   He noted the Applicant suffers low back pain and chronic tension headache, that he was not able to work and, prior to his pension being cancelled, the Applicant could swim every day to alleviate the pain.  Dr Ebrahimi stated that he did not think the Applicant could do any physical work.

25.      As earlier stated, two medical assessments were undertaken by the Respondent when considering the claim, the first by Dr Graudins (T13, p 36), and the second, which took account of the video record and was on the file, by Dr Rose (T14, p 50).  On the basis of a “constant ache” but normal neck movements, Dr Graudins diagnosed a cervical spine condition, but accorded an impairment rating under Schedule 1B of the Act of nil points. Thoraco-lumbar spine condition was assessed at 10 points on the basis of a loss of one quarter of movement. The Tribunal notes that Dr Graudins obtained details of the Applicant’s medication as Celebrex, Panadeine Forte or Manamax. No impairment points were assessed for the right wrist pain, based on mild interference with hand function. Depression was assessed at 10 impairment points (giving a total impairment rating of 20 points) based on the evidence of the Applicant and the Applicant’s angry, tense demeanour, with minimal eye contact, on examination. Dr Graudins noted that the Applicant had last received specialist psychiatric examination in the 1980s and was not undergoing any treatment for the condition.

26.      Dr Graudins noted that the Applicant had been working for two months at eight hours per week, and assessed that he could continue at that rate, but could not work a full day due to endurance limitations.  He opined that a return to full-time work or study was not possible within two years.  He noted that the Applicant had ceased work in 1990 due to a combination of medical and non-medical issues.  In summarising his opinion as to the ability of the Applicant to work, Dr Graudins considered that he remained unfit for full-time work due to a combination of physical and psychological problems.

27.      Dr Rose subsequently undertook a file re-assessment, primarily resulting from the availability of the surveillance video (T14, p 63). He assessed the cervical spine condition as being within normal limits, resulting in an impairment rating of nil points, and the thoraco-lumbar spine condition as warranting an impairment rating of 5 points (at most), being within the normal range of movement as demonstrated by normal gait apparently without discomfort, normal forward flexion and repetitive bending, an ability to carry objects and being full-time within the factory environment.   Depression was assessed at 10 impairment points (at most), with no explanation being given as to the basis of this rating.  In summarising his findings, Dr Rose considered the evidence on the video contradicted statements by the Applicant and the opinions of various doctors as to the Applicant’s restricted ability to lead a reasonably normal life, and to carry out work related duties.  He considered him fit for full-time duties.

FINAL SUBMISSIONS

28.      By way of final submission, the Applicant informed the Tribunal that when he was granted the pension, he had the expectation that his medical conditions would improve.  That has not been the case.  The pain in the neck, back and in headaches was unpredictable, and also reduced his strength to undertake work.  The Applicant believed the HSA medical examiners did not appreciate his level of pain and the distress that it caused, and that insufficient account had  been taken of X-ray/CT scans.  He observed that at times he could not even get up from his seat.  The Applicant submitted that financial situation contributed to his depression as did the poor health of his wife.  He stated that he attended the Commonwealth Rehabilitation Service in 2002, to no avail.  He stressed his truthfulness in describing his condition, but was adamant that he could not work for 30 hours per week.

29.      The Respondent submitted that the relevant date upon which medical evidence might be considered was, in accordance with the legislation, the date of the decision, namely 7 December 2001.  The Respondent further submitted that the ARO and the SSAT had correctly assessed the total impairment rating at 5 points under Table 5.2, this being in respect of the lumbar spine.  The Respondent opined that in the alternate in respect of pain, the Tribunal could consider the issue under Table 20 (Miscellaneous), but a nil rating would be appropriate on the evidence.

30.      In respect of the condition of depression, the Respondent contended that a nil rating was the correct assessment, and observed that whilst Dr Rose had suggested 10 points, the Respondent noted that Dr Rose supported the view “that the observed activities on the video were at odds with the applicant’s claim that he does little else but sit at home watching television because of his depression”..  The Respondent recalled that Dr Chowdhury described the condition as fluctuating, and made no assessment as to whether the condition was long term or temporary (T11 p 30).

ANALYSIS OF EVIDENCE AND FINDINGS

31. The Respondent concedes that the Applicant has impairments of neck pain, lower back pain, right wrist pain and depression and thus meets the criteria in section 94(1)(a) of the Act. The Tribunal so finds. The next question is whether the total impairment is of 20 points or more under the Impairment Tables pursuant to section 94(1)(b) of the Act.

32.      Neck pain is considered under Table 5.1, cervical spine condition.  Dr Graudins assessed movement as normal, and rated the impairment at nil points.  Dr Rose, consequent on viewing the video, accorded with this assessment.  The rating criteria under 5.1 is quite specific in that it states “NIL – normal or nearly normal range of movement”..  The videotape before the Tribunal covered a period of 13 days, and at no time was the Applicant observed to have any difficulty in respect of neck movement.  Accordingly, the Tribunal finds that nil points is the appropriate assessment.

33.      The lumbar spine condition is assessed under Table 5.2.   The rating criteria is defined as:

“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

with standing for about 30 minutes

with sitting or driving for about 60 minutes”

Dr Gaudrins assessed a rating of 10 points, based on loss of one-quarter movement, but it can be assumed that he took account of back and or referred pain in accordance with the above criteria.  Dr Rose reduced that assessment to 5 points on the basis of observed performance, but nonetheless also noted at worst a loss of one-quarter of movement.   

34. Treating medical opinion at the time of the primary decision in this matter referred to pain, as indeed did all subsequent medical opinions before the Tribunal. The Applicant was consistent in his evidence in respect of pain, and notwithstanding that the videotape did not reflect any appreciable loss of movement or evidence of physical pain, the Tribunal is of the opinion that it should be taken into account in assessing the impairment rating under table 5.2. In doing so, the use of Table 20 is inappropriate in accordance with para 8 of the Introduction to Schedule 1B. The Tribunal therefore accords back pain an impairment rating of 10 points.

35.      Upper Limb Function is considered under Table 3 of the Impairment Tables.  Dr Chowdhury appears to have described the clinical features in his report of 15 October 2001 as “pain in wrist worse under excessive movement” (T11, p 30).  Both HSA doctors gave an impairment rating of nil points.   The Tribunal accords with a nil rating, as the video evidence reveals no discernible loss of effectiveness or flexibility.

36.      Depression is addressed under Table 6 – Psychiatric Impairment, and is relevantly defined thus:

“NIL - Mild but regular symptoms which tend to cause subjective distress.  On most occasions able to distract themselves from this distress.  Minimal interference with functions in everyday situations.  Exacerbation of symptoms may cause occasional days off work.  (eg 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. (eg 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."

In his Treating Doctors Report, Dr Chowdhury considers counselling to be an appropriate treatment, and in subsequent reports he maintains a diagnosis of secondary [sic] depression (T21, p72).   Dr Graudin is of the opinion that the condition warrants a 10 point rating, based on the Applicant’s history as presumably given and on his presentation.  Dr Rose accepts, at most as he describes it, a 10 point rating, but makes no specific comment as to how this rating was adjudged. He does consider the Applicant fit for full-time work or study with minimal constraints.  The SSAT did not support this assessment, considering nil points to be appropriate, noting “[H]is demeanour was not gloomy.  His evidence suggested he is functioning well in everyday situations” (T2, p 9).

37.      Before the Tribunal, the Applicant showed some slight degree of frustration which the Tribunal attributes to the relatively lengthy procedures to be followed in seeking restoration of a payment he had previously received.  His manner was generally composed.  His evidence in respect of his depressive condition was not strong or persuasive.  The Applicant gave no real evidence of interference with his daily functions, and his references to friction in the family situation were relatively low key.  The Applicant acknowledged that he has friends and sees them, that he enjoys his relationships with colleagues at Diptron, both when working and to the present day, and that he contributes to the cultural activities within the Turkish community.  He stated that he visits clubs, albeit infrequently given the costs of so doing. 

38.      Video evidence presented a picture of a man repairing to and from the work environment on a daily and regular basis.  It is not necessary to consider whether or not the Applicant was working longer hours than claimed, as the point is that he apparently was comfortable in that situation on a full daily basis.  And the Applicant continues to visit that workplace.  It may well be that this contributes to his wellbeing, and minimises his depressive condition.  But in doing so, the Applicant confirms that his depressive condition cannot warrant a rating other than nil.  The Tribunal finds accordingly.

39. The total impairment rating is therefore assessed by the Tribunal at 10 points, which is insufficient to meet the criteria in section 94(1)(b) of the Act. Thus the Applicant does not qualify for the Disability Support Pension.

40. It is not necessary to formally address section 94(1)(c) of the Act as to whether the Applicant has a continuing inability to work. However, the surveillance videotape provides, as far as it goes, evidence that the Applicant has the ability to meet a full day commitment outside the home on a regular basis, and with minimal indication of any physical disabilities.

41.      The decision under review, that is to cancel payment of the Disability Support Pension, is affirmed.

I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of REAR ADMIRAL A R HORTON AO

Signed:         L Bonouvrie
  Associate

Date/s of Hearing  24 April 2003
Date of Decision  19 June 2003
Advocate for the Applicant            self represented
Advocate for the Respondent       Ms J Green