OZAL and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2010] AATA 651

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 651

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No. 2009/2963

GENERAL ADMINISTRATIVE DIVISION		)
Re		RASIM OZAL

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Dr J D Campbell, Member

Date30 August 2010   

PlaceSydney

Decision The decision under review is affirmed.

.................[sgd].............................

Dr J D Campbell

Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – multiple impairments – whether impairment ratings can be assigned – whether impairments were adequately documented and assessed – whether conditions were diagnosed, treated and stabilised – decision under review is affirmed.

Social Security Act 1991, s 94 and Schedule 1B

REASONS FOR DECISION

30 August 2010   Dr J D Campbell, Member

1.The decision under review is the decision of the Social Security Appeals Tribunal made on 27 May 2009, affirming a decision made by Centrelink on 5 November 2008 to reject Mr Ozal’s claim for disability support pension.

2.Mr Ozal was born in Turkey in 1967.  He held various employments after leaving school.  He worked as a security officer for a total of twelve years, and had also been employed as an insurance sales person, a machine operator in a factory, and as a basketball trainer.  He moved to Australia in 2004 with his wife, and was granted a permanent resident status on 8 June 2006.  After arriving in Australia he initially worked at Australian Air Express lifting heavy cargo, and later obtained employment as a security guard.

3.Mr Ozal was assaulted while working as a security guard in February 2006 and suffered injuries.  He remained in hospital for two or three days.  By the end of 2006 he was back at work, and throughout 2007 he worked on and off as a security guard.  Since becoming involved in a motor vehicle accident in December 2007, he has not undertaken any work.  Mr Ozal lives at home with his wife, son and stepson. 

4.On 8 September 2008 Mr Ozal lodged a claim for disability support pension (DSP), in which he listed his disabilities as blind left eye; hearing loss in both ears; obesity; multi-joint arthritis; hypertension; hypothyroidism; varicose veins; spinal and cervical pain; forgetfulness; and hernia.  Centrelink rejected this claim on 5 November 2008.  This decision was affirmed by an Authorised Review Officer on 27 March 2009, and was further affirmed upon review by the Social Security Appeals Tribunal on 27 May 2008.

5.The issue before the Tribunal is whether Mr Ozal met the qualification criteria for DSP as set out in section 94 of the Social Security Act 1991 (the Act) on 8 September 2008 or within 13 weeks of that date (the relevant time). In particular, the issues are whether some or all of Mr Ozal’s impairments were permanent within the meaning of the Act; and if so, whether his impairments attracted an impairment rating of at least 20 points against the Impairment Tables set out in Schedule 1B to the Act.

6.Mr Ozal stated that various physical and psychological complaints have prevented him from working, and that these complaints have got worse over the last two years.  He complained of widespread pain in his body, particularly ankle joints, knee, hip and shoulder joints, neck and lower back with some radiation to left hip and left leg.  As a consequence of the pain, Mr Ozal stated that he can remain in a standing position for no longer than 30-40 minutes, walk no more than 1-1.5 kilometres at one time, and drive for no longer than 45 minutes.  He is unable to do much physical activity, and does very little around the house apart from a little cooking.  He also stated that he has difficulty with sleeping and experiences shortness of breath and snoring.  He further stated that he is experiencing problems with his mood, memory and sexual activity, and has been seeing a psychologist since the death of his mother in 2008

7.In a treating doctor’s report dated 28 August 2000, Dr Demdi listed Mr Ozal’s conditions with most impact as below:

Condition	Symptoms/history/treatment
Multi-joint arthritis	Cervical spine, elbows, wrists, lower back, right knee – causing limitation in range of movement and pain and difficulty with prolonged walking and heavy lifting.  Treated with analgesic and physiotherapy.
Morbid obesity	Weight loss measures are planned.
Left eye prosthesis	Initial trauma as a child.  Artificial left eye since 2006.
Hearing problems	Tympanoplasty and mastoidectomy in 2006.

8.Dr Demdi also listed the following conditions to be present but generally well managed:

Condition	Symptoms/history/treatment
Hypertension	Treatment with anti-hypertensives and weight reduction.
Gastro oesophageal reflux	Treated with medication.
Thyroid	Surgery in 2003.

9.A job capacity assessment report was completed on 16 September 2008.  In this report the assessor considered Mr Ozal to have the following impairments:

Condition	Rating assigned and ground
Hyperthyriodism	Zero rating pursuant to Impairment Table 19 as there was minimal impact on ability to function.
Visual loss	5 point rating pursuant to Table 14 for left eye blindness.
Partial hearing loss	5 point rating pursuant to Table 12 for 29.8% binaural hearing loss.
Neurodegenerative disorder (memory loss and diminished comprehension)	Zero rating pursuant to Table 8 as Mr Ozal has reasonable judgment in routine activities most of the time.

10.In a neuropsychological assessment report dated 10 October 2008, Ms Wong, a clinical psychologist, recorded that cognitive assessment conducted on Mr Ozal revealed average general intelligence and very mild cognitive disturbance.  She observed that this is most likely associated with his untreated depressed mood.  Ms Wong further observed that given his untreated symptoms of depressed mood, he may experience mild and intermittent difficulty with judgment, making sense of new information and thinking clearly and logically about new or unfamiliar problems until such time that he receives appropriate and adequate specialist treatment. 

11.Mr Ozal provided further material in the form of a letter from Dr Emin dated 19 January 2009, in which the doctor details that Mr Ozal suffers from various conditions including those nominated by the treating doctor, plus asthma, varicose veins and sexual impotence.  A further treating doctor’s report dated 29 January 2009 was lodged.  In this report Dr Emin nominates the conditions with most impact as arthritis, which had got worse after the car accident in 2008.  A second condition nominated was major depression which was being treated with Efexor.  Other conditions nominated as well managed and causing minimal or limited impact of Mr Ozal’s ability to function were visual loss in left eye, hypertension, varicose veins, overweight, and hypothyroidism.

12.In a further job capacity report dated 18 February 2009, the assessor concluded that Mr Ozal had a total impairment rating of five points.

Consideration

13.I have considered the material lodged with Mr Ozal’s original claim for DSP on 8 September 2008 and for a period of thirteen weeks thereafter, together with any later material that enhanced an understanding of conditions nominated in the claim.  I have made the following findings with regard to Mr Ozal’s impairments.

(a)Mr Ozal had an injury to his left eye as a child.  In 2006 he underwent a left eye evisceration with insertion of an eye prosthesis.

(b)He underwent thyroid surgery in 2003 and has been subject to review by an endocrinologist, Dr Marks.  Dr Marks’ letter dated 20 April 2007 indicates that the right lobe nodule is benign and does not warrant any further investigation.

(c)He underwent tympanoplasty and mastoidectomy to the ear in May 2006.

(d)He underwent a left inguinal hernia operation on 2 June 2008.

(e)He was involved in a motor vehicle accident on 25 December 2007.  Mr Ozal was assessed by Dr Guirgis on 16 April 2008.  In his report, Dr Guirgis, having described symptoms reported to him by Mr Ozal, concluded that such symptoms and signs were of post traumatic mechanical derangement of the cervical and lumbar areas of the spine, right elbow, right wrist and left knee.  A bone scan undertaken on 13 May 2008 is reported as demonstrating arthritic changes in the cervical spine, elbows, wrist, L4/L5, right and left ankle suggestive of traumatic or degenerative origin.  Radiographic correlation may be helpful if clinically indicated.

(f)He was assaulted and taken to Westmead Hospital on 8 February 2006 suffering lacerations and bruising and a fracture of the left mandible.  He was assessed by Dr Millar, a consultant rehabilitation specialist, on 28 November 2006, who noted restriction of movement in the cervical and lumbar spine.  Dr Miller concluded that with better treatment, Mr Ozal would slowly progressively improve, with the minimal fracture of the mandible having not been a significant problem.

14.In further consideration, I note that Mr Ozal stated that he did not see a dietician until later in 2008; and that he has difficulty with any dieting because of his lack of mobility and his psychological condition.  Further, I note that Mr Ozal has not seen, nor has a wish to, see a psychiatrist and that his treatment with Efexor was discontinued.  I further observe that Mr Ozal had surgical treatment for his varicose veins some four months ago.

15.I find that Mr Ozal satisfied section 94(1)(a) of the Act in relation to his claim in that he had 12 impairment conditions during the relevant period. I turn to the assessment of each impairment under the Schedule 1B Impairment Tables under the Act:

(a)Multiple joint osteoarthritis

Main complaint with regard to this impairment condition is pain in many joints and particularly in the lower back.  Mr Ozal uses Panadol to control pain, with intake of up to six tablets a day. Apart from bone scan, no further investigations, including radiology examination, have been undertaken.  There was no documentation as to the loss of range of movement.  Suggested treatment including weight reduction has not been undertaken.

On the material before me, I find that this impairment was not fully diagnosed, treated and stabilised as at the relevant time.  In such circumstances it is not appropriate to nominate an impairment rating.

(b)Morbid obesity

There is no doubt that Mr Ozal suffers from morbid obesity, with weight varying between 190 and 200 kilograms and his height being 2 metres, which equates to a BMI of between 47 and 50.  Despite being severely overweight, no progress toward treatment by way of weight reduction had occurred as at the relevant time.  Furthermore, treatment would appear to be somewhat dependent on assessment and proper treatment of his mood disorder.

The condition of morbid obesity, while diagnosed, had not been fully treated and stabilised as at the relevant time.  In such circumstances, it is not appropriate to nominate an impairment rating.

(c)Mood disorder

This impairment condition was first mentioned in the neuropsychological assessment report of Ms Jenny Wong dated 10 October 2008, and was later referred to in a further treating doctor’s report of Dr Emin dated 29 January 2009, which stated that Mr Ozal was being treated with efexor.  This medication treatment apparently discontinued.  Mr Ozal gave evidence that he later received some treatments by a psychologist, but no documentation was provided.  There was no referral to a psychiatrist.

I find that Mr Ozal did suffer a mood disorder at the relevant time.  This condition however has been poorly documented by his treating doctor.  Further it is yet to have been investigated, treated and stabilised at this time, let alone the relevant time.  In such circumstances it is not appropriate to nominate an impairment rating.

(d)Visual disturbance

Mr Ozal has total loss of vision in left eye.  Pursuant to Impairment Table 14, the permanent loss of stereoscopic vision accrues a rating of five points.  I find that the appropriate impairment rating for this impairment condition is five points.

(e)Hearing loss

In the audiometry form completed by Dr Levot dated 18 September 2008, Mr Ozal’s condition was reported as demonstrating mild to moderate hearing loss in both ears.  It demonstrated a 37.3% binaural hearing loss.  Reference was made to ear surgery in May 2006.

I find that the hearing loss impairment is permanent.  The appropriate rating for such an impairment is 10 points under the Impairment Table 12.

(f)Thyroid condition

I have outlined the thyroid condition earlier in paragraph 13.  Mr Ozal has been under the care of Dr Marks, a specialist endocrinologist, and has few symptoms associated with his thyroid condition.  Appropriate impairment rating pursuant to Impairment Table 19 is nil, as thyroid disease was adequately controlled.

(g)Varicose veins

Varicose veins were apparently present bilaterally.  There was no symptomatology documented.  Treating doctor’s report dated 29 January 2009 recorded that impact of the condition on his ability to function was minimal.  Mr Ozal underwent surgery for this condition four months ago. 

I find that the condition was not fully documented, treated and stabilised as at the relevant time.  It would be inappropriate to nominate an impairment rating.

(h)Hernia

Mr Ozal underwent a surgical treatment on 3 June 2008.  There was no documentation of post-surgical complications or complaints.  As there is no documented material of any ongoing impacts of this condition, it would be inappropriate to assign an assessment rating.

(i)Hypertension

Mr Ozal has undergone treatment with anti-hypertensives.  Treatment was also said to include weight reduction, but this plan was not progressed in the relevant period.  There was no record of pressure readings.  In the absence of material which is suggestive of the blood pressure not being controlled with medication, I assign a nil rating pursuant to Impairment Table 20.

(j)Gastro-oesophageal reflux disease

This condition was noted in the original treating doctor’s report under the heading of limited impact on ability to function.  It was being treated with medication.  There was, however, no evidence of investigation or specialist referral; no date of onset or diagnosis is recorded. I conclude that the condition was not fully documented, diagnosed or treated prior to the relevant time.  Further, It would seem it was causing minimal functional impairment.  In such circumstances it would be inappropriate to assign an impairment rating.

(k)Asthma

The first mention of this condition in documentation before me was in a letter from Dr Emin dated 19 January 2009.  The condition of asthma was not documented or mentioned in the claim or in medical reports concerning Mr Ozal’s conditions at the relevant time.  It is therefore inappropriate to assign an impairment rating for the condition as a consequence of the claim lodged on 8 September 2008.

(l)Cognitive impairment

Mr Ozal complained of memory loss for recent events.  Neuropsychological assessment conducted by Ms Wong on 30 September 2008 found Mr Ozal to be of average intelligence, with a very mild cognitive impairment.  I find it is appropriate to assign a nil rating pursuant to Impairment Table 8.

16.In summary, I have assigned a total impairment rating of 15 points under the appropriate Impairment Tables to the conditions hearing loss and visual disturbance, which were fully documented, diagnosed, treated and stabilised as at the time relevant to Mr Ozal’s claim for DSP. I assigned a nil rating for both hypertension, cognitive impairment and the thyroid impairments.  I am not satisfied that the other seven impairments had been adequately documented, or were fully diagnosed, treated and stabilised at the relevant time as to have been considered permanent. 

17.In such circumstances I conclude that Mr Ozal does not satisfy section 94(1)(b) of the Act, which requires an impairment rating of 20 points for qualification for DSP. The decision under review is affirmed.

18.It is not necessary to address further requirements provided in sections 94(1)(c) or 94(1)(e) of the Act.

19.In affirming the decision under review, as I must in the light of the findings, I do note that Mr Ozal has multiple impairments.  Documentation in support of his claim was less than adequate, and he clearly had difficulty in differentiating between the state of his impairments at this time and what they were in 2008, at the time of his original application.  Any future claim will require adequate documentation and detailed enquiry and competent assessment of impairment conditions.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member.

Signed: ..........[sgd]...........................................................................
             Associate

Date of Hearing  30 July 2010
Date of Decision  30 August 2010
Solicitor for the Applicant          Self-represented
Solicitor for the Respondent     Ms S Memmott