Said; Secretary, Department of Family and Community Services - [2002] AATA 951

DECISION AND REASONS FOR DECISION [2002] AATA 951

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2002/262

GENERAL ADMINISTRATIVE DIVISION          )
           Re      SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Applicant
           And    ELIA SAID
  Respondent

DECISION

Tribunal Rear Admiral A R Horton AO, Member

Date 18 October 2002
Place Sydney

Decision The decision under review is affirmed.

[SGD] Rear Admiral A R Horton AO
Member

CATCHWORDS

SOCIAL SECURITY – cancellation of disability support pension – review of decision that the Respondent continues to qualify – whether Respondent had physical, intellectual or psychiatric impairment of 20 points or more - whether Respondent had continuing inability to work

Social Security Act 1991 - section 94, schedule 1B
Social Security (Administration) Act 1999 – section 80

McDonald v Director-General of Social Security (1984) 1 FCR 354
Freeman v Secretary, Department of Social Security (1988) 87 ALR 506

REASONS FOR DECISION

18 October 2002 Rear Admiral A R Horton AO, Member

This is an application by the Secretary, Department of Family and Community Services, for review of a decision of the Social Security Appeals Tribunal ("the SSAT") of 22 January 2002 which set aside a decision of an Authorised Review Officer ("ARO") of Centrelink dated 22 November 2001 to cancel payment of the Disability Support Pension ("DSP") to Elia Said ("the Respondent"). The latter decision had affirmed an earlier decision by an authorised delegate of the Applicant.
The Applicant lodged an application for review by the Administrative Appeals Tribunal ("the Tribunal") on 19 February 2002. A hearing took place on 2 August 2002. Following adjournment for further medical evidence, the hearing was resumed on 6 September 2002. Mr G Lozynsky, advocate, appeared for the Applicant. Mr M Smith of Counsel appeared for the Respondent.
The Tribunal had before it the documents provided by the Applicant pursuant to section 37 of the Administrative Appeals Tribunal Act1975 ("the T documents"). The Tribunal heard evidence from Mr Said, his wife Mrs Evelyn Said, Dr A Dinnen and Dr G George. The Tribunal also took into evidence the following documentation:

Exhibit A1Report by Dr P Kamenyitzky, Senior Medical Adviser, Health Services Australia, dated 21 June 2002
Exhibit A2Report by Dr G J George, Consultant Psychiatrist, dated 26 August 2002
Exhibit R1Report by Dr A Dinnen, Consultant Psychiatrist, dated 9 May 2002
Exhibit R2Report by Dr A Dinnen, Consultant Psychiatrist, dated 15 May 2002
Exhibit R3Letter from Dr A Michael, General Practitioner, dated 24 July 2002
Exhibit R4Report by Dr A Dinnen, Consultant Psychiatrist, dated 7 August 2002 under cover of a letter to Dr Dinnen by Mr W Gerogiannis, Solicitor, dated 7 August 2002
LEGISLATION

Section 94 of the Social Security Act1991 ("the Act") defines the qualification criteria for the disability support pension and states, relevantly:
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) …
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.
Note: For work see subsection (5).
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:
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 80 of the Social Security (Administration) Act1999 provides the authority for the cancellation of a pension, stating relevantly:
[Secretary's discretion –cancel or suspend payment]
(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.
(2) …

Impairment is assessed against the work related Impairment Tables at Schedule 1B of the Act. The introduction to these Tables states, relevantly:
…
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. …
These Tables give particular emphasis to the loss of functional capacity that a person experiences in relation to work. …
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. …
The condition must be considered to be permanent. …
In general, pain or fatigue should be assessed in terms of the underlying medical condition which causes it. For example, Table 5 should be used for spinal pathology. However, where the medical officer is of the opinion that the Tables underestimate the level of disability because of the presence of chronic entrenched pain, Table 20 can be used to assign a rating instead of the Table(s) that otherwise would be used to assess the loss of function to which the pain relates. Medical officers must use their clinical judgement and be convinced that pain or fatigue is a significant factor contributing towards the person's overall functional impairment. Medical reports and the person's history should consistently indicate the presence of chronic entrenched pain or fatigue….

BACKGROUND

In 1996, the Tribunal made a decision that the Respondent was medically qualified for the DSP when claimed on 4 February 1992, and that such pension should be paid accordingly.
On 1 March 2001, Mr Said was advised that payment of the pension was due for a medical review. A Medical Review Form and a Treating Doctors' Report which diagnosed lymphoma of facial sinuses, idiopathic oesophagitis and gall stone, were submitted on 22 March 2001. Dr B Forssman, Senior Medical Adviser of Health Services Australia ("HSA"), carried out an examination on 4 April 2001, diagnosing conditions of non-Hodgkin's lymphoma, poor vision of the right eye and oesophagitis, and assessing a total impairment rating of 5 points and a fitness for full time work. Mr Said was advised on 17 May 2001 that he was not eligible for a pension; the Tribunal assumes that the intent of the advice was that his DSP would be cancelled as he no longer met the conditions of eligibility under section 94(1) of the Act.
Following reconsideration of this decision in June 2001, the Respondent was referred to Dr G George, Consultant Psychiatrist, for "independent psychiatric assessment", apparently on the basis of previously recorded anxiety attacks (page 121 of the T documents refers). Dr George (on September 12 2001) formed the opinion that "From a psychiatric point of view, he does not appear to suffer from any psychiatric disorder at the present time. Undoubtedly, when he did have an active cancer, he would have had some form of mood disorder, perhaps, chronic depression but he does not appear to have this at the present time. Hence, his ability to work in the future should be assessed on his present medical status. From a psychiatric point of view, there is no reason why he could not work on either a part-time or full-time basis." (T22).
The decision to cancel DSP therefore remained extant, and Mr Said sought review by an ARO. The ARO Referral at T25 notes the date of decision as 19 September 2001, rather than the original date (paragraph 8 above) of 17 May 2001. Suffice that the ARO decided on 22 November 2001 that the decision to cancel DSP was correct after considering relevant medical reports, and discussing medical conditions with Mr Said. In summary, the ARO assessed the total permanent impairment rating as 5 points (under Table 14 for loss of vision), thus finding that Mr Said had not met the conditions of section 94(1)(b) of the Act.
On 22 January 2002, the SSAT found that Mr Said had an impairment rating of 30 points and therefore met the criteria of an impairment rating of 20 points or more in Section 94(1)(b). The SSAT finding was based on 5 points under Table 14 (Miscellaneous Eye Conditions) for loss of vision, 5 points under Table 21 (Intermittent Conditions) for migraine, 10 points under Table 20 (Miscellaneous Conditions) for loss of balance and 10 points under Table 6 (Psychiatric Impairment) (described as anxiety and associated dizziness).
In respect of whether Mr Said had a "continuing inability to work", the SSAT considered him to be prevented by the above impairments from doing any work within the next two years, nor would he be able to successfully undertake training to enable him to work with new skills during the next two years. The Respondent was accordingly found to meet the criteria of section 94(1)(c) and hence the original decision to cancel DSP was set aside.
The matter before this Tribunal is therefore an application to review this decision by the SSAT, the thrust of the appeal being that the SSAT placed more weight on earlier medical reports than more current medical reports and the evidence of the Respondent himself.
The parties were in dispute as to the date of the original decision, and the Tribunal sought to clarify the matter at the resumed hearing. The Applicant relied on T17 p114 of the section 37 documents, which advised Mr Said of cancellation (albeit the wording of the advice implies it is a decision on a new claim) on 17 May 2001. The Applicant submitted that later activities in respect of review and referral to Dr George for a psychiatric assessment were part of the normal review process and did not change the original date. That payment may have continued after that date was an option at the discretion of the Secretary during the review procedure.

The alternate view, as proffered by Counsel, was that a later operative date, or date of original decision, was the 19 September 2001, this being referred to in an internal document completed by the Applicant (T25 p130). To add to the confusion, a file note by the Applicant at T20 p121 which addresses the requirement to obtain an independent psychiatric assessment, states, "If we are to cancel this payment…." and the SSAT, probably through a typing error, refers to the 9 September 2001 as the date of cancellation. Counsel held to the view that the later date of 19 September 2001 was the relevant date, that being the decision that had been reviewed by the ARO and SSAT, but concluded that the matter may not be significant given the material to be presented. The Tribunal decided to reserve further comment and judgment.
EVIDENCE BEFORE THE TRIBUNAL
Mr Said was born in April 1962. He gave evidence that he arrived in Australia from Lebanon at the age of 13 and continued his schooling to the Higher School Certificate level. He subsequently undertook a hairdressing apprenticeship for four years, and worked as a ladies hairdresser in Chatswood for the ensuing nine years. He described himself as "a very good hairdresser" who "loved his job". He attained the position of manager of some of the salons of his employer.
In 1986 he returned to Lebanon to marry. In the course of the next few years, when he was considering opening his own salon, he started "getting ill". He described the circumstances variously as having difficulty breathing, dizziness, headaches, a loss of balance and stomach turning. He gave evidence that he was forced to give up hairdressing after the onset of these symptoms, periodic attempts to return to work being unsuccessful. This seemingly occurred in 1988 - 1989, there being medical reports in the section 37 documents, following referral by his general practitioner, Dr A Michael, in relation to these conditions.
Further medical examinations took place in Lebanon in 1990-1991, and in due course, Mr Said was diagnosed with malignant lymphoma of the right nasal sinus, and underwent chemotherapy treatment (T4 p42). On return to Australia, he underwent a course of radiotherapy for non-Hodgkin's lymphoma, a condition that was reported to be in full remission by Dr J Gibson, Consultant Haematologist, in May 1991 (T4 p50). Dr Gibson further reported in February 1996 (T8 p64) that the condition remained in full remission, and Mr Said confirmed in cross examination that this condition was periodically checked and that he was not on any medication. His response to the question "do you agree with Dr Gibson that you are in remission", he replied, " Well, he is the doctor, not me", but he went on to state that in his view, the lymphoma has contributed to his ongoing and current medical conditions.
Mr Said stated that he suffered from a swollen and weeping eye and a blocked right nasal passage and sinus, as well as balance and headache problems prior to the diagnosis of lymphoma, conditions that continue to this day. He suggested that the blocked nasal passage became worse after the excision of a polyp (T4 refers) at the time of chemotherapy treatment, the present effect being a mucus build-up and discharge which affected his sleeping pattern at night, requiring him to rest during the day. In turn, the blocked nasal passage affected his right eye, which had very limited vision. He does not wear glasses as they make no difference, and his capacity to read is limited to a few minutes by eye irritation and an inability to focus. Television viewing is restricted to about 30 minutes and an inability to cope with fast movement, such as in sport.
Mr Said gave evidence that he has both headaches and migraine, which have always been present; the same conditions were evident in 2001 when his eligibility to continue on payment of DSP was being assessed. He described them as different conditions, the former being at the back of the head, the latter "more at the front" and putting a lot of pressure on his eyes which become very blurry. This eye condition lasted about one hour, causing him to lie down; the migraine might last for three or four hours, sometimes occurring twice a week, sometimes not occurring for two or three weeks. In response to Counsel, he stated that migraines occurred "more than once a month". Whilst initially he took Inderal, more recently he has been taking Panadeine Forte, which he considered did not really help, although he believed it took "some pressure off the headache".
Counsel referred Mr Said to the diagnosis by Dr Michael of 24 July 2002 (Exhibit R3) of gastro oesophageal reflux disease, which the Tribunal notes was referred to as dyspepsia or P/H ulcer, in his medical report in July 1996 (T9). The Respondent described this condition as starting when he was a bit tired, being very sharp, getting into his chest and heart and paralysing or numbing his arm. He stated that this condition originated about two years ago, that is in about 2000. He stated that he was originally prescribed Tazac by Dr Borody, but the medication was changed to Losec by Dr Michael, and changed again to Nexium in recent months. The symptoms always appear in the morning; the Respondent claimed that on one occasion he ended up in hospital and was treated with morphine for the pain, but no details were available. He further stated that the reflux pain just occurred, but was particularly brought on by physical effort and bending.
As regards the effects of breathlessness, dizziness and loss of balance on everyday activities, Mr Said described a falling effect, and an inability to stand for more than 10 minutes or so. In cross examination, he stated that his dizziness "is there almost all the time. It gets worse when I get my sinus problem". He indicated that he had never fallen over through a loss of balance. He takes Stemetil every day for this condition. He understood that he could have surgery to relieve this condition, but it would not be an easy operation. He could not return to hairdressing because of these conditions; because of sore arms when raised, and a general feeling of sickness. He could not use a blowdryer because of the heat. He stated that he had tried part time work to help his cousins, the most recent being some four to six weeks earlier. Such work involved stonemasonry (mixing cement) and farmwork, but his endurance was very limited as he became tired and suffered from reflux pain and some arm paralysis. In cross examination, he re-affirmed his desire to return to hairdressing, but said he could not do so because being in a shop would stress him out, and balance would be a particular problem.
In terms of domestic activities, Mr Said sometimes helps his wife in the home, but he mostly gardens, "maybe for half an hour" with breaks in between. His social outings are limited, due to nervousness, dizziness and getting uptight, particularly in the club environment and where music is played. He stated in cross examination that he could look after himself, drive for about 20 to 30 minutes without problems, and drive his children to school. He can only sit with comfort for about 15 minutes. Standing is limited to less than ten minutes. He is able to use public transport, but with difficulty. He cannot cope with shopping. About once a week, he lifts weight with his brother at their parent's home, "not heavy weights, you know, just something to exercise a little bit".
The psychiatric condition of Mr Said became the singular most contentious issue in the hearing, albeit Counsel for the Respondent did not address the matter in examination in chief. Mr Said stated in cross examination that he had been referred for psychiatrist consultation, he thought initially before the diagnosis of lymphoma and then on other occasions. He implied that he had not sought any further consultations given that cures had not been found for his ailments such as balance problems or dizziness. He admitted to feeling stressed, a condition he attributed to his inability to work and the resultant financial implications. In concluding his evidence, Mr Said reiterated his inability to work for the reasons earlier stated; in response to suggested occupations such as mail processor and telemarketing, he was adamant that he could not undertake such duties due to his inability to stand or sit for any reasonable period, his breathing, balance and dizziness problems, and the stress this would generate. The same considerations applied as regards referral to an agency such as the Commonwealth Rehabilitation Service (the "CRS"), although it was unclear as to whether he had been so directed at some time in the past.

The Tribunal referred Mr Said to evidence given by Dr Dinnen, Consultant Psychiatrist, both in his report at Exhibit R1 and orally when he, Dr Dinnen, was interposed in the Respondent's evidence, to the use of marijuana over the last two and a half years. The Respondent confirmed his statement to Dr Dinnen that he had been under a lot of stress, and it calmed him down, and helped him relax and sleep. He stated in re-examination that he now used Valium as prescribed by Dr Michael to control stress.
Mrs Evelyn Said. Mrs Said gave evidence that when she married the Respondent in 1986, she was unaware of any medical problems affecting his occupation as a hairdresser. She observed that in about 1989, he started to get spells of dizziness. She never observed him at work, but at home he had to lie down a lot, and she had to look after him. She was aware that he had a breathing problem and "pressure on his head" before his cancer treatment; it was unclear whether she noticed any problem with a blocked nose at that time.
When asked her view as to his condition in 2001, the witness stated that the conditions of dizziness and headaches were worse than before the cancer operation. She notices that he needs to lie down more frequently, he is nervous " like he cannot handle the pressure inside". She stated that Mr Said cannot shop or visit places like church and cinema, has no interest in social activities, and has a limited ability to involve himself in the children's activities. She considers that her husband's sickness precludes him from sharing family interests and activities. In response to the Tribunal, she confirmed that her husband had stomach problems requiring medication every day, and even then, there were days when he suffered pain.
MEDICAL EVIDENCE
Section 37 documents contain relevant medical reports to substantiate the claim that the Respondent was claiming conditions of dizziness, loss of balance, discomfort in the stomach, and nasal obstruction prior to the diagnosis of lymphoma and the treatment that resulted. In respect of an anxiety condition, Dr L McGuigan, Rheumatologist, records on 20 July 1989 (T4 p49) "I think he has genuinely some illness which has been complicated by anxiety and depression". Dr J Gibson records in the report referred to at paragraph 18, "I very strongly suspect that many of his symptoms may be psychogenic in origin" and "a number of these symptoms pre-date the diagnosis of lymphoma by some years" and considers a psychiatric review to be appropriate. Dr A Michael, his General Practitioner since 1988, records on 3 September 1991, (T4 p47), treatment for dizzy spells, anxiety/stress, abdominal pain and lymphoma.
On 29 May 1991 at T4 p54, Dr R White, Staff Specialist Psychiatrist at Royal Prince Alfred Hospital refers to symptoms of headaches, dizziness, stomach fullness and aches, imbalance and "feelings of anxiety". He also thought the physical symptoms to be genuine. He did not find any evidence of psychotic process or major depression, and suggested that a program of exercise would be more beneficial than drugs or psychotherapy.
The remaining relevant medical evidence available to the Tribunal for that period is a report from Dr D Pohl, ENT Surgeon, who on 15 April 1992, (T5 p60) could find no significant balance lesion which would impair the Respondent's ability to work.
There are no medical reports for the ensuing four years. When questioned by the Tribunal, Mr Said stated that he was in Lebanon "working there for two and a half years", constantly receiving medical treatment for the conditions already referred to, and all the time on medication. The next available report is that of 5 February 1996, when Dr Gibson confirmed full remission from lymphoma, and diagnosed a chronic sinus infection. Dr Michael provided two further reports in the following three months, confirming diagnoses of dizziness, headaches, chronic anxiety/depression, and abdominal pain.
Apparently in the context of further considering his claim for DSP in 1996, the Respondent was referred to Dr D Dowda, Consultant Occupational Physician. His report at T11 p75 notes Mr Said's view that he was anxious and depressed, being conscious of symptoms relating to his health and particular the lymphoma. Dr Dowda had reservations as to whether the Respondent had a balance problem, but noted that "when he was standing up and he was asked to close his eyes, he invariably started falling backwards, saying he was losing his balance. This repeatedly occurred and he was always falling backwards". Dr Dowda found no clinical evidence of cerebellar lesion or central nervous system balance abnormality. Finally, he considered that further assessments in respect of certain conditions should be carried out, that many of the described symptoms could have a psychological/psychiatric origin, and the Respondent should be assessed accordingly.
Again, there are no medical reports available for the ensuing four years, when the Applicant advised Mr Said a Medical Review was to be undertaken. When questioned by the Tribunal, Mr Said indicated that he had been in Australia for the last seven years, that is, apparently since 1995, and that he had been seeing Dr Michael "almost every week" and Drs Gibson, Pohl and Borody as required. No relevant reports were available to the Tribunal, nor was there any evidence as to what medications were being prescribed in that period. There is no evidence that the Respondent was attending for psychiatric treatment, nor taking any relevant medications.
PSYCHIATRIC ASSESSMENTS
The initial psychiatric assessment available to the Tribunal was that of Dr White in 1991, as addressed at paragraph 29. It was followed some five years later by that of Dr R McMurdo, Consultant Psychiatrist, his report being at T12 p 82. These reports became prominent in the course of the hearing, in that Counsel for Mr Said submitted they were significant in the context of providing an historical psychiatric perspective, following as they did on earlier suggestions of an anxiety state by other medical practitioners, to enable Drs Dinnen and George, appearing respectively for the Respondent and Applicant, to form their opinions.
The background history provided by the Respondent to Dr McMurdo broadly encompasses the circumstances and conditions already noted, except in the context of the Respondent being quoted as saying that he had no problems before the onset of the lymphoma. Dr McMurdo reached the following conclusions:
a.        no evidence of psychosis and delusional ideas
b.        minimal balance problems
c.the Respondent gave a history "consistent with anxiety and panic disorder", but there were no somatic signs of anxiety on examination.
d.        the Respondent can do more than he leads the observer to believe.
e.overall, "the inclination is to believe that (the Respondent) does have anxiety and panic disorder, but also probably magnifies the situation consciously.
36.      When providing the Treating Doctors' Report in March 2001(T15) for the medical review for payment of DSP, Dr M Noussair, a General Practitioner attending the Respondent in the unavailability of Dr Michael, made no mention of an anxiety or depressive state.   As earlier noted, and after the original decision to cancel DSP in May 2001, a delegate of the Applicant directed that an independent psychiatric assessment was to be carried out. This was undertaken by Dr G George, a consultant for HSA, his report of 12 September 2001 being at T 22 p 123. He made the following relevant observations:
"…
he (Mr Said) said that generally, he feels reasonable at the present time, but it has been difficult for him to adjust to the fact that he has a clear bill of health. He said that dizziness was his major problem and, for this reason, he does not feel that he can do what he used to do. However, he did not record any pervasive symptoms of depression….
(He) had not seen a psychiatrist recently and was not under any form of psychiatric care.…
he did not exhibit any psychotic phenomena. His cognitions were intact."

And as noted at paragraph 9:

"…
From a psychiatric point of view, he does nor appear to suffer from any psychiatric disorder at the present time. Undoubtedly, when he did have an active cancer, he would have had some form of mood disorder, perhaps, chronic depression but he does not appear to have this at the present time. Hence, his ability to work in the future should be assessed on his present medical status. From a psychiatric point of view, there is no reason why he could not work on either a part-time or full-time basis."

Dr A Dinnen had access to the report by Dr George, and assessed quite correctly in his report at Exhibit R1 (at p6) that the latter did not have access to previous psychiatric evaluations. He further noted that:
"in spite of his (Mr Said) professed disinterest at the interview with Dr George last September, nonetheless he obviously gave him very little information about the psychiatric symptoms which he described to me. Under the circumstances, it is not surprising that Dr George could find no evidence of a psychiatric disorder. Diagnosis depends on the patient describing symptoms.…"

Dr Dinnen notes that the Respondent described panic attacks twice every day, sometimes associated with dizziness. He also stated that he cannot sleep at night, and in the past took Tryptanol and an anti-depressant drug. Valium as prescribed by Dr Michael has replaced marijuana, as a means of reducing stress and calming down.
Taking account of a motor vehicle accident some three years ago, and the Respondents more recent use of marijuana, both of which he considered as providing "a further dimension to understanding …the long history of dysfunction", Dr Dinnen summarised his opinion thus:
"He was granted a disability pension following illness which developed when he was younger than 30 years old, and has not worked since. The likelihood that he will ever work again, under these circumstances, I would suggest is remote.
The various features of his condition suggest the most appropriate diagnosis as that of underdifferentiated somatoform disorder coded at 300.81 in DSM IV. The panic attacks and anxiety which are reported appear to be part of this condition. They would warrant the separate diagnosis of anxiety disorder not otherwise specified coded at 300.00
I believe because of this chronic psychiatric illness, expressed in somatic fashion as so well described by Dr White in 1989 (1991), the patient is totally unable to work. The impairment would prevent him from working for at least the next two years, and he would not benefit from a rehabilitation program…..
A more appropriate diagnosis is that of conversion disorder with mixed presentation coded at 300.11 in DSM IV. The alternative diagnosis of malingering cannot be excluded, but appears unlikely".

For administrative reasons, Dr Dinnen was interposed in the evidence of the Respondent. He confirmed his written opinion, and suggested that the comment by Dr Michael at Exhibit R3 to the effect that the Respondent "has a chronic anxiety disorder with somatic features. One must bear in mind that Mr Said does have underlying organic disorders" correctly assessed that there is a core of physical disease. He considered that the physical symptoms described by the Respondent (breathlessness, lack of balance, headaches, blocked right sinus), coupled with the overarching lymphoma issue, to be "quite typical of …and consistent with …an anxiety disorder". He confirmed his assessment at Exhibit R2 of 20 points under Table 6 for Psychiatric Impairment on the basis that the condition is "serious" and "would result in serious disruption of work attendance or ability to work", opining that this would not preclude the allocation, without duplication, of an assessment under the appropriate physical table.
In respect of the Respondent's ability to undertake educational or vocational training, Dr Dinnen gave his opinion that:
"…it might seem that he could be retrained. This type of incapacity, this type of illness, is not amenable to retraining because he is convinced that he is chronically ill and incapable and you will no longer be able to get past that to take benefit of his native ability. So I don't think he is trainable."

In cross examination, Dr Dinnen confirmed his understanding from his examination of Mr Said that the latter had never received psychiatric treatment. He considered this to be a matter for the general practitioner, but opined that "it is seldom that a psychiatrist can do much with this sort of chronically incapacitating type illness". Dr Dinnen considered the Respondent's condition of conversion disorder as being chronic and permanent. He further agreed with the Applicant that work might distract the Respondent from worrying about his physical symptoms, but he did not believe it would make a difference to the illness, which the Respondent now sees as incapacitating. That is, Dr Dinnen saw the Respondent's problems as being "well and truly entrenched" given the elapsed time.
Dr Dinnen was particularly forthright when asked whether referral to an agency such as the Commonwealth Rehabilitation Service ("the CRS") might be beneficial in helping to overcome a preoccupation with physical symptoms, responding:
"I can predict with absolute confidence that such a referral would be fruitless and the only thing that would come out of it would be to create a greater sense of frustration in the people who are trying to help him."

Dr Dinnen accepted the view of the Respondent that family circumstances, particularly in respect of his inability to financially support them as he would wish, contributed to stress. He agreed with the view of Dr McMurdo in 1996 that Mr Said could be exaggerating his symptoms, but he thought that unlikely given the long term nature of his conditions. He concluded his evidence in cross examination by opining that he did not think it possible for Mr Said to resume work, and that he did not see him capable of working.
In response to the Tribunal, Dr Dinnen stated that in his opinion, the condition of Mr Said has been relatively the same for many years, his assessment being virtually the same as that of Dr White in 1991. He amplified his comment on the question of malingering, in that if Mr Said was exaggerating or malingering some ten years ago, that in itself can then become part of the problem.
As earlier noted, Dr George examined Mr Said for Centrelink, his report of 12 September 2001 being at T22 p 123. In oral evidence, he reiterated that there was no evidence of any psychiatric condition or mental disorder on examination. He found Mr Said to be pragmatic, revealing little of himself, and asymptomatic in terms of bodily expressions of anxiety. As with the other psychiatrists, he was not prepared to rule out the possibility of malingering.
He did not agree with the diagnosis of conversion disorder with mixed presentation as postulated by Dr Dinnen, as he considered this would normally apply to a short lived condition, and involve a type of sensory or motor disturbance in association with psychological distress. As the Tribunal understands it, he considered neither this diagnosis nor the alternate underdifferentiated somatoform disorder could be supported without excluding other medical conditions and malingering, and that the use of a substance, such as cannabis in this case, would preclude a diagnosis. In respect of Mr Said's likely condition in May 2001, Dr George observed that he could make no judgment, given that the Respondent provided no historic detail, nor did he have access to previous psychiatric reports at that time. But he re-affirmed that he saw no evidence of any psychiatric disorder some four months later.
As regards the ability of Mr Said to work or be retrained, Dr George answered yes to both questions. He gave him no psychiatric impairment rating, but accepted that certain physical conditions might warrant impairment ratings, but not to the point of not being able to work or be retrained. He considered referral to the CRS could be of value.
In cross examination, Dr George agreed with Counsel that what history he obtained from Mr Said, upon which he based his assessment, differed from that now available to him from earlier medical reports, particularly in respect of conditions pre-dating the lymphoma and psychiatric evaluations. He accepted that symptoms of dizziness and unbalance could be related to a psychiatric disorder. He concluded his evidence by restating that the diagnosis by Dr Dinnen of conversion disorder or somatic form disorder could not be upheld in the presence of cannabis use.
At this stage of the hearing, Counsel for the Respondent sought relief under the ruling in Browne v Dunn (1894) 6 R 67 in that Dr Dinnen had not had the opportunity to consider, and respond to, the later oral evidence by Dr George which criticised his, Dr Dinnen's diagnosis, and that Counsel for the Respondent had therefore been unable to further cross examine. Accordingly, the hearing was adjourned to enable Dr Dinnen to respond.
The hearing resumed on 6 September 2002, and took into evidence Exhibits A2 and R4. No further oral evidence from the authors of those exhibits was taken, the matter going to final submissions. But the thrust of those reports is relevant to the further consideration of this matter.
Exhibit R4 is the response by Dr Dinnen to the transcribed evidence of Dr George. He ascribes the views of Dr George to be "for the most part very much in accord with my view of this patient", the important difference being whether or not the diagnosis of conversion disorder or somatoform disorder could be made.   The thrust of his responses to the comments by Dr George, and the issues referred to him by his instructing solicitor, Mr Gerogiannis, (attached at Exhibit R4), are:
a.        The essence of a conversion disorder is that it is a conversion of anxiety into physical symptoms, as presented by the Respondent particularly in relation to the diagnosis of lymphoma.   The emphasis given by Dr George to the lymphoma condition may also have allowed the Respondent to avoid revealing other underlying problems.
b.        Whilst conversion disorder is for 90 per cent or more of patients of short duration, further neurological symptoms occur with 25 per cent to 50 per cent of patients. In the absence of early intervention, a poor prognosis is indicated.
c.        Conversion disorders generally have a core of organic dysfunction.
d.        The symptoms of headache, dizziness, loss of balance and the like do not necessarily have a physical explanation.
e.        The claimed inability to make a diagnosis because of the use of cannabis is not agreed, and current clinical practice is to make diagnoses when required. Further, the Respondents use of cannabis was relatively limited and would not exclude other disorders.
Dr George responded to the above report by Dr Dinnen. He views the use of DSM IV in a rigorous manner, stating that the criteria associated with any disorder should be rigorously adhered to, as failure to do so can lead to a lack of validity and statistical reliability, and holds to the view that DSM IV is definitive in emphasising that a diagnosis cannot be made when the symptoms may be due to the effects of a substance. He maintains that the use or abuse of a substance, cannabis in this instance, can blur the clinical presentation of a person claiming a specific disorder.
He cannot accept that the Respondents use of cannabis is a direct effect of a conversion disorder, and postulates that on the whole, substance users can be unreliable in accurately reporting history. That is, there is a question of integrity. He expresses concern that there is no evidence of any consistent psychiatric observation, let alone treatment over many years, a failure he sees as unusual assuming the symptoms have been accurately described by the Respondent. He further suggests that symptoms of headaches and dizziness fall short of those described in DSM IV as common manifestations of conversion disorder. As with all the psychiatrists who have seen Mr Said, he also expresses doubts as to the genuineness of the presentation of the symptoms. He takes a strong view that Mr Said is malingering, citing the relevant criteria in DSM IV, which he considers are all met in this case. Finally, he maintains his opinion, as given in his initial report, that Mr Said is capable of work.
SUBMISSIONS

The Applicant accepted that Mr Said has a number of permanent conditions, but submitted that the only condition warranting an allocation of points was that under Table 14 for loss of vision in the right eye, for which 5 points was appropriate. The Applicant submitted that a nil rating (presumably under Table 11.1) was appropriate for stomach problems (oesophagitis) as the condition is controlled by medication, and a nil rating was also appropriate (presumably under Table 21) for dizziness noting that Mr Said had never fallen over and was able to drive on a regular basis. The Applicant further submitted that nil ratings under table 21 were also appropriate for blocked nose and headaches, both conditions being noted by the Respondent's treating doctor as a feature of lymphoma. The former condition was not under medication; the Applicant submitted that in the view of Dr Forssman of HSA, the latter was not fully treated and stabilised. But there was no evidence that either condition seriously impacted on the Respondent's lifestyle. As to the lymphoma condition, the Applicant referred the Tribunal to the view of a number of medical practitioners that the condition was in remission and had been for many years, and that Mr Said takes no medication. Accordingly, no impairment rating could be assigned.
The Applicant contended that a condition of psychiatric disorder or mental illness did not exist at the time of cancellation of the pension, (which he had earlier submitted was in May 2001), and hence no impairment rating could be assigned. He submitted that neither Mr Said on his Medical Review Form, nor the treating doctor, Dr Noussair, diagnosed any psychiatric condition in March 2001. Dr George, concluded from his psychiatric examination in September 2001, that whilst there may have been some depressive condition, probably associated with the cancer, in the past, there was no evidence to support the contention that any psychiatric condition was now present. It was further relevant that Mr Said had not seen a psychiatrist for some years, and was not under any treatment.
The Applicant submitted that the diagnosis of Dr Dinnen in respect of conversion disorder with mixed presentation or underdifferentiated somatoform disorder could not be upheld. They were inconsistent with the presentation by the Respondent to Dr George, and the conclusions of the latter. Dr Dinnen's diagnoses were also made in contravention of the rigorous requirements of DSM IV in respect of the use of substances that could cause a change of behaviour, and there was no evidence, either medically or from the Respondent himself, to support the contention that the relevant circumstances such as frequent suicidal ideation or frequent severe anxiety attacks, existed; it was submitted that Dr Dinnen paid no regard to the contention of Dr George that substance abuse tended to lead to unreliability in accurately reporting history. It was further submitted that the lack of explanation by numerous doctors in explaining the multiple symptoms claimed by Mr Said, suggested that he could be exaggerating his conditions, similar reservations as to whether Mr Said was malingering having been made by other medical practitioners. At Exhibit A2, Dr George concluded that malingering was more a probability than a possibility. The Applicant accordingly opined that a nil impairment rating was appropriate for psychiatric impairment under Table 6, and hence with a total impairment rating of 5 points, Mr Said did not satisfy section 94(1)(b) of the Act.
In respect of whether the Respondent had a continuing inability to work at the time of cancellation of DSP, the Applicant referred to the assessment by Dr Forssman at T16 p113, wherein he stated "This man is fit for full-time work, avoiding tasks requiring depth perception, although he would require vocational training or rehabilitation to assist him in returning to the workforce after such a prolonged absence." Dr George accords with this assessment from a psychiatric point of view, stating "there is no reason why he could not work on either a part-time or full- time basis." The Applicant further referred to Dr Dinnen as stating in evidence to the Tribunal that Mr Said might be capable of undertaking training but might not want to pursue it. He also noted that Dr White in 1991 suggested that work would enable Mr Said to be distracted from his symptoms, and that Dr McMurdo, some five years later, was of the opinion that he could do more than he wanted others to believe. The Applicant also submitted that the Respondent himself had indicated (on his Medical Review Form at T14 p 91) that he wanted assistance with finding work in the future. The Tribunal notes that Mr Said also replied "no" to the question "Would you like help to find a job?", but he also ticked "in the future" in the same question.
As to whether suitable support and rehabilitation programs might be available to assist Mr Said, it was submitted that adequate programs were available to assist in drug rehabilitation and the learning of new skills and abilities which might be through the CRS. The Applicant concluded by referring to the authority in Freemanv Secretary, Department of Social Security (1988) 87 ALR 506, wherein Davies J stated that the only consideration by the Tribunal under the Act, was whether the Respondent was eligible for the DSP at the date of the decision to cancel. In the Applicant's view, the circumstances of the Respondent in May 2001, based on medical evidence and the Respondent's evidence, were such as to lead to the conclusion that he was not eligible for the continuation of payment of the DSP.
Counsel for Mr Said, referring to McDonald v Director-General of Social Security (1984) 1 FCR 354 in the context of the grant of power, and the question that must be asked by the Tribunal, noted the opinion of Woodward J at 358 as regards the need for careful analysis of the decision being reviewed, in the event that uncertainty exists after considering all the available material. Counsel further submitted that the views of Nicholson J at 369-370 were also applicable in this matter, in that lack of a particular qualification under the Act must be found in order to cancel a pension. Counsel further submitted that this was particularly relevant in this matter as the grant of DSP was made in 1996, by this Tribunal and on the opinions provided at the time.
Counsel sought to remind the Tribunal that Dr McMurdo accepted that Mr Said had a psychiatric condition, present for some six years, and fed by the knowledge of the lymphoma, and Dr McMurdo considered him unfit for any type of work. Counsel postulated that the opinion of Dr McMurdo would have been even stronger had he had the advantage of seeing the earlier opinions of Dr Gibson, the treating Haematologist (T4 p50), and Dr White (T4 p54), to whom he was referred. Counsel suggested that the history of various symptoms has remained consistent for a period of many years, through a raft of different medical specialists, albeit the diagnosis of cause has been varied, and this evidenced that "his concern about physical problems was genuine". Counsel also submitted that the report by Dr Dowda (T11 p75), in conducting an examination for the Applicant in 1996, accepted the Respondent as having genuine problems, and suggested that the symptoms of anxiety, panic and depression "may have a psychological/psychiatric origin".
Counsel submitted that the procedure in 2001 when the Medical Review was conducted failed to take account of Mr Said's history. He postulated that the file was not referred to the Senior Medical Advisor HSA (Dr Forssman), a conclusion presumably based on the fact that his report makes no mention of previous psychiatric disorders, and it is not until after the decision in May was taken that the deficiency was noted and the Respondent referred to Dr George. In turn Dr George did not have access to previous psychiatric reports at that time, and in the view of Counsel, his report is accordingly flawed.
It was submitted that on the assessment by Dr Dinnen, which builds on the opinion of Dr McMurdo and on the evidence presented to the Tribunal, the Respondent suffers from a chronic psychiatric problem. It is argued that the opinion of Dr George at T22 p123 should be given little weight in the absence of a detailed history, and his subsequent responses in evidence and in his second report, did not involve a "dispassionate reassessment". Instead, Counsel submitted, Dr George has overemphasised the history taken by Dr Dinnen of "some use of cannabis", in drawing on the criteria in DSM IV. Counsel submitted that the true history was as given by the Respondent, that is for some two years he had taken one cigarette a day, usually in the evening, to help him relax and sleep. Such use, and taking account that he abstained from alcohol or tobacco, did not, in the view of Counsel, amount to abuse of a substance such that a diagnosis could not be made by Dr Dinnen. Further, the evidence given Dr Dinnen was that use of cannabis had ceased before he saw Mr Said, who informed the Tribunal that he was now taking Valium, as prescribed by Dr Michael, to relieve anxiety.
Counsel refuted the suggestion on the evidence that psychiatric complaint and symptoms had been developed in a medico-legal context, nor that there was any discrepancy between claimed stress and disability in the objective findings. There was also no evidence that the Respondent's account of disabling effects from his symptomatology are false. In summary, it was argued that an appropriate impairment rating under Table 6 for Psychiatric Impairment is 20 points, as recommended by Dr Dinnen, but that a rating of 10 points would be acceptable if realistic ratings were given under alternate tables for associated physical disabilities. In essence, Counsel submitted that the impairment ratings assigned by the SSAT recognised this interrelationship and assigned ratings accordingly.

In regard to other functional problems, Counsel submitted that weight should be placed on the evidence of Dr Michael who has generally been the treating doctor for many years, and on Exhibit R3, which listed four discrete conditions. The first, gastroesophageal reflux disease, was noted by Dr Noussair in the Treating Doctors' Report for the Medical Review as requiring medication and being long term. The evidence of the Respondent and Mrs Said was that medication was required each day, but nonetheless the condition inhibited the activities of the Respondent. Dr Forssman accepted the condition. Counsel submitted that whilst optimal treatment was being accorded the Respondent, the evidence was that frequent symptoms were continuing and hence a rating of 10 points, specifically relevant to oesophagitis under Table 11.1, was appropriate.

The SSAT separated the remaining conditions, rating the intermittent migraine condition under Table 21, and the more continuous physical conditions such as loss of vision, and sinus obstruction and discharge, under Table 20 for miscellaneous conditions. Counsel submitted this was an appropriate allocation of impairment rating, and as noted by Dr Dinnen in paragraph 40, did not lead to double counting in respect of separately rating the anxiety condition. In respect of migraine, the evidence was that this was severe, often lasting about an hour even with medication, and requiring rest for up to three hours. Applying the components of Table 21, Counsel submitted that a rating of 5 points was appropriate. In respect of loss of balance, dizziness, loss of vision and nasal blockage, Counsel observed these were of long standing, still present, physically inhibiting and causing some loss of efficiency, leading to an impairment rating of 10 points.

Counsel submission therefore assessed a total impairment rating, reflecting the condition of the Respondent at the date of cancellation, of at least 35 points, the outstanding issue to be addressed being whether the Respondent had a continuing inability to work. The thrust of Counsels argument is that if the history of diagnosis of anxiety disorders is accepted, then it follows that acceptance of the various assessments that the Respondent had an inability to work for 30 hours a week must follow. He further submitted that the effect of other conditions on Mr Said's ability to undertake work or training, which must be in accord with the definition in section 94(5) of the Act, are such as to impact on his ability to work in the next two years, and opined that the Tribunal must be satisfied that those impairments are so low that they allow the Respondent to undertake vocational training within the next two years. Counsel submitted this was not the case.

FINDINGS

At the outset, the question of exaggeration or malingering by Mr Said needs be addressed. This question was posed by a number of practitioners, initially in the early consideration of balance and dizziness problems, then by Dr McMurdo and in turn Drs Dinnen and George. The latter strongly held to this opinion, particularly after he became aware of the use of cannabis by the Respondent, and in the view of the Tribunal, because of the significantly different presentations given by the Respondent to Dr Dinnen and himself. On the other hand Dr Michael, treating doctor for some 14 years, apparently holds no such opinion. In all the circumstances, the Tribunal holds with the view of Dr Dinnen that a continuity of deception over such a long period is unlikely and hence accords the suggestion of malingering limited value. That is not to say that exaggeration of symptoms and their effect did not, and does not, occur.
The psychiatric condition of the Respondent became, as expected, the most contentious issue during the hearing, albeit the Applicant and Respondent are well apart as far as rating other symptoms are concerned. The competing views varied between the Respondent's belief that it was necessary to take into account earlier psychiatric assessments as well as that of Dr Dinnen, whereas the Applicant saw the lack of ongoing continuity of psychiatric assessment and treatment, and the findings by Dr George, as clear evidence that there was no evidence of any psychiatric condition. Neither party addressed the matter of two discrete periods of some four years in each case, for which there are no medical records. This was left to the Tribunal to pursue, the response from the Respondent being that on both occasions he was in Lebanon and obtaining regular medical treatment. No evidence was put to the Tribunal to refute this response.
The evidence presented to the Tribunal by Mr Said was consistent in terms of describing his symptoms, and the implications for his life style. His evidence was generally supported by Mrs Said, both in respect of an anxiety state, and the physical disabilities associated with poor vision and migraine. The Tribunal places weight on the opinions of Dr Michael and in respect of specialist psychiatric evaluation, prefers the evidence of Dr Dinnen to that of Dr George in that it provides a more comprehensive overview of the basis for the diagnoses and why those diagnoses could be supported in the face of use of cannabis; in taking that view, the Tribunal accepts the level of use as given by Mr Said. That Dr George did not at the time of examination have access to previous medical reports, and that Mr Said, by his own admission, sought to present a bland face to Dr George, with minimal history except in relation to the lymphoma, may well explain why Dr George did not find evidence of an anxiety condition.
As earlier noted, Dr George takes the view that conversion disorder cannot be diagnosed where substance abuse is a factor. He states in Exhibit A2, that "… a diagnosis cannot be made where a substance is suspected of causing a change of behaviour. … The point I am trying to emphasize is that the use or abuse of substances can certainly blur the clinical presentation of a person claiming a specific disorder. … (reference Criteria D page 457 and Criteria C page 450 DSM IV)" In this instance, the Respondent is of the opinion that the use of cannabis was limited, a view which accords with the evidence before the Tribunal, and in any event, was no longer a factor when examined by Dr Dinnen. That being the case, the Tribunal accepts that Dr Dinnen was able to make the diagnoses that he did, and the Tribunal is reasonably satisfied that on the available historical evidence, an anxiety condition also existed at the time of cancellation of the DSP in 2001.
Dr Dinnen recommended an impairment rating of 20 points under Table 6. The Respondent submitted that a rating of 10 points, which relates to "moderate and regular symptoms…", is appropriate, and the Tribunal so finds.
The Tribunal further accepts the submission by the Respondent, which reflected the decision of the SSAT, that certain conditions could logically be considered under Tables 20 or 21, and that a rating could be ascribed under the former without double counting in the context of psychiatric impairment rated under Table 6. Loss of balance, dizziness, and the sinus/nasal condition are all identifiable and diagnosed symptoms, albeit the cause in some cases has yet to be ascertained. Clearly, in the view of the Tribunal, they have a latent effect on the anxiety state of the Respondent, but also impose a physical disability, which is assessed to meet the criteria of "mild to moderate symptoms which are irritating or unpleasant…. may cause loss of efficiency in daily activities but minimal interference performing or persisting with work related tasks", and accordingly an impairment rating of 10 points under Table 20 is appropriate. Table 21 can be used for migraine; on the evidence before the Tribunal, a criteria level at Table 21.1 is two, and by further interpolation at tables 21.2 and 21.3, a nil impairment rating is assigned. The Applicant conceded in submission that an impairment rating of 5 points is appropriate under Table 14 for loss of vision of the right eye, and the Tribunal so finds.
The remaining impairment to be considered is gastroesophageal reflux disease. Table 11.1 is relevant. The Applicant submitted that as the condition was controlled by medication, a nil impairment rating was appropriate. The Respondent is of the opinion that a 10 point rating reflects the situation of "continuing frequent symptoms despite optimal treatment". This condition is of more recent presentation than some others, and in the view of the Tribunal, on the evidence it warrants a nil points rating against the criteria of "mild symptoms despite optimal treatment". A nil point rating is therefore assigned. The Tribunal therefore assigns a total impairment rating of 25 points, and hence the criteria under section 94(1)(b) is met.
Section 94(1)(c) of the Act, as further defined in sections 94(2)(3) and (5) relate to whether the Respondent had, at the date of the decision to cancel DSP, a continuing inability to work. When carrying out the medical assessment in mid 2001, Dr Forssman held that Mr Said was fit for full time work and that he could undertake vocational or on the job training. Shortly thereafter, Dr George ascribed to the same view. Further, Dr George has more recently continued to hold to that view after becoming familiar with Mr Said's previous history. Whilst Dr Dinnen took the position that Mr Said is unable to work for 30 hours per week because of his psychiatric problems, the Applicant stated in submission that Dr Dinnen also took the position that he might be capable of undertaking retraining, but may not want to pursue it. What Dr Dinnen actually said was:
"it might seem that he could be retrained. This type of incapacity, this type of illness, is not amenable to retraining because he is convinced that he is chronically ill and incapable and you will no longer be able to get past that to take benefit of his native ability."

As noted in paragraph 43 when commenting on referral to an agency such as the CRS, Dr Dinnen also stated:

"I can predict with absolute confidence that such a referral would be fruitless…."

Dr Michael has been consistent in his view that Mr Said is unable to work for 30 hours per week within the next two years, nor is he capable of undertaking educational or vocational training. Dr Noussair, whilst the Respondent's General Practitioner for only a short period, formed the same view. The Tribunal places some weight on the similar assessment by Dr Michael in particular, given his long exposure to the Respondent's medical impairments.
Taking account of the total impairment rating as reached by the Tribunal, the fact that the Respondent's overall medical condition has not apparently improved since DSP was granted in 1996, the strength of Dr Dinnen's views, and the evidence of Mr Said himself, the Tribunal reaches the conclusion on the impairment alone, that the he has a continuing inability to work under section 94(1)(c) of the Act, and accordingly meets the criteria for the DSP in section 94 (1) of the Act, and did so at the time of the original decision to cancel payment. In that respect, the Tribunal is of the opinion that the original date of decision was 17 May 2001, as advised at that time to the Respondent, and that all subsequent reviews effectively flowed from that decision.
The decision under review, being that of the SSAT on 22 January 2002, is accordingly affirmed.
I certify that the 78 preceding paragraphs are a true copy of the reasons for the decision herein of Rear Admiral A R Horton AO, Member
Signed:         .....................................................................................
  Associate
Dates of Hearing  2 August 2002 / 6 September 2002
Date of Decision  18 October 2002
Advocate for the Applicant      Mr G Lozynsky
Counsel for the Respondent    Mr M Smith
Advocate for the Respondent Mr B Gerogiannis