Sayan and Secretary, Department of Family and Community Services

Case •

[2002] AATA 236

•

11 April 2002

DECISION AND REASONS FOR DECISION [2002] AATA 236

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2001/377

GENERAL ADMINISTRATIVE DIVISION        )          
           Re      HAMIDE SAYAN   
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES             
  Respondent

DECISION

Tribunal       Dr J D Campbell, Member            

Date11 April 2002

PlaceSydney

Decision      The Tribunal determines that the decision under review be set aside and in substitution therefor determines that the Applicant qualified for and was entitled to a Disability Support Pension from 27 January 2000 and that such entitlement is to continue up to 24 September 2001, at which time the Applicant was granted Disability Support Pension.           

[SGD] Dr J D Campbell   Member
CATCHWORDS
Social Security - disability support pension - disabilities - assessment of impairments - continuing inability to work

Social Security Act 1991 - sections 94 and 100, Schedule 1B
Secretary, Department of Family and Community Services v Verney (2000) 60 ALD 737

REASONS FOR DECISION

Dr J Campbell, Member                

  1. In this matter, Mrs Hamide Sayan ("the Applicant") seeks a review of the decision of the Social Security Appeals Tribunal ("SSAT") dated 5 February 2001 which affirmed the decision of an authorised Centrelink delegate of the Secretary to the Department of Family and Community Services ("the Respondent") dated 2 March 2000, which rejected the Applicant's claim for Disability Support Pension ("DSP"). This latter decision had been affirmed in a decision by an authorised review officer dated 27 June 2000.

  2. A hearing was held before the Tribunal on 31 January 2002 at which the Applicant was represented by Mr Smith of Counsel. The Respondent was represented by Ms Fahey, an advocate from the Advocacy and Administrative Law Team at Centrelink. The Tribunal was assisted by an interpreter fluent in the Turkish language.

  3. The following documentation was placed into evidence before the Tribunal.

Exhibit           Description    Date   
T1-T37 pp1-110 Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T-documents")
A1      Medical Report Dr Dennis Lewis-Enright 18 July 2001
A2      Medical Report Dr M A Chaudhary         14 August 2001       
A3      Medical Report Dr Yasar Oner     19 June 2001           
A4      Medical Report Dr Yasar Oner     22 August 2001       
A5      Medical Report Dr Yasar Oner     21 December 2001 
A6      Medical Report Dr Kamenyitzky    21 August 2001       
A7      Applicant's Statement of Facts and Contentions          19 August 2001       
R1      Respondent's Statement of Facts and Contentions     12 December 2001 

issues

  1. The relevant issue in this matter is whether the Applicant qualifies for the payment of DSP between 27 January 2000 (date of lodgement of claim) and 23 September 2001 (The Applicant was granted DSP from 24 September 2001).

legislation

  1. The relevant legislation in this matter is the Social Security Act 1991 ("the Act") and in particular sections 94 and 100(3) and Schedule 1B - Tables for the Assessment of work related impairment for Disability Support Pension.

background

  1. The Applicant lodged a claim for DSP on 27 January 2000 with the Respondent. In the claim the Applicant detailed the following illnesses/disabilities (T3):

    ·     diabetes - insulin dependant;

    ·     problem with discs in lower back;

    ·     suffering from headaches and memory loss due to diabetes; and

    ·     gastric problems.

  2. The Applicant also detailed the difficulties associated with her illnesses/disabilities (T3, p 46):

    ·     has difficulty walking, driving a car, lifting, carrying, bending, operating every day appliances, sleeping and caring for others all the time;

    ·     often has difficulty concentrating, remembering, attending work or other appointments and breathing;

    ·     sometimes has difficulty sitting, standing, managing her personal affairs and caring for herself; and

    ·     has no problems in using public transport; and

    ·     has no problem reading, writing, speaking, hearing, interacting with others,  understanding or following instructions provided the language used in Turkish.

  3. An x-ray of the cervical spine on 6 August 1999 is reported by Dr A Robinson, a consultant radiologist, as revealing no focal bony abnormalities. A CT scan of the cervical spine is reported by Dr Robinson as having "minor osteophytic lipping at several levels, but the spinal and neural foramina remain patent." A plain x-ray of the lumbosacral spine on the same day is reported by Dr Robinson as having "osteophytic lipping at multiple levels. No other significant focal bony abnormalities are demonstrated"(T4, p 55).

  4. In a report dated 6 September 1999, Dr Chaudhary, a consultant psychiatrist, following a consultation with the Applicant on 2 September 1999, stated that the Applicant was suffering from:

    ·     severe depression;

    ·     severe grief reaction (earthquake disaster in Turkey and loss of relative in an accident);

    ·     peptic ulcer;

    ·     chronic headaches ; and

    ·     chronic pains in her shoulders, left arm and severe backache.

Dr Chaudhary commenced treatment with Aurorix twice daily and intensive counselling (T5).

  1. Dr Durmush, a consultant surgeon, concluded, following a gastroscope on the Applicant on 3 September 1999, that the Applicant was suffering from pan gastritis (T6).

  2. On 22 November 1999, Dr Habib, a consulting surgeon, reported that the Applicant was complaining of painful heels, especially the left and also aching knees.  He recommended the use of insoles to help resolve the pain (T7).

  3. On 25 November 1999 Dr D Chipps, a consultant endocrinologist, considered that in the light of increasing haemoglobin A1C levels, insulin therapy for the Applicant's diabetes is necessary, and that it should be commenced in the new year (T8).

  4. In a treating doctor's report dated 19 January 2000, Dr Oner described the Applicant's conditions in the following terms:

    (a) Anxiety – Depression - depression insomnia, poor concentration and poor memory, aggression, commenced in June 1999. Long term and deteriorating, being treated with psychotherapy and Aurorix;
    (b) Cervical spondylosis and left elbow injury - Neck pain - difficulty with heavy lifting /working above shoulder level. Pain in left elbow. Present since October 1998, is long term and deteriorating, treatment with physiotherapy/ NSAIDS/Celebrex;
    (c) Back injury/right knee injury - back pain - difficulty with heavy lifting/prolonged sitting or standing. Present since October 1998, is long term and fluctuating, treatment with physiotherapy/NSAIDS/Panamax; and
    (d) Chronic headaches, diabetes mellitus and peptic ulcer - headache, poor concentration, poor memory, feel tired, weakness, abdominal pain.  Diabetes has been present since 1988 and abdominal pain and headache since 1999. Treatment with insulin and tablets (diabetes) (T9).

  5. Dr Oner considered that the Applicant was unfit for any kind of work for more than two years and would not benefit from vocational training or rehabilitation. Dr Oner considered that the Applicant's disabilities would offset the Applicant's ability to work over the next two years in the following ways (T9):

    ·     absent from work four or more days per month;

    ·     unable to work full days because of endurance problems ;

    ·     can understand and follow instruction less than half the time;

    ·     unable to communicate;

    ·     mobility would be constrained in some situations;

    ·     has some reduction in dexterity;

    ·     inappropriate behaviour would disrupt work for at least 15 minutes per day;

    ·     may be confused by alternating between tasks; and

    ·     unable to lift, carry and move objects.

  6. Dr Thomas, a medical adviser with Health Services Australia, detailed the following whole person assessment following his examination of the Applicant on 18 February 2000:

    "This 47 year old lady came to Australia as a refugee in 1995. She has never been in paid employment (either in Australia or overseas) and can speak no English.
    Her main problem relates to Depression, which has occurred reactive to several external stresses. Initially she felt depressed and tearful due to having relatives involved in the recent earthquakes in Turkey. About 9 months ago her symptoms deteriorated following the death of a relative in a car accident. Her symptoms are tearfulness, poor concentration, lack of motivation, a poor outlook for the future, and multiple somatic complaints. She only obtained psychiatric assistance four months ago, and continues with treatment. Therefore this is temporary.
    In addition to the above, she has numerous joint and muscle aches. She was in a car accident 18 months ago, and complains of back, neck, left arm and right knee pain since. The only radiology viewed today showed essentially normal cervical and lumbar spines. I would have to assume that she has suffered with a chronic sprain of each of these areas. Her current mental state will be exacerbating any physical symptoms she has. Today she mobilised well, with full neck, back and arm movements. She manages most housework, and today there was no more than minor demonstrable impairment in these physical areas, and she can walk for over 1/2 km at a time. These conditions are permanent, with a combined rating of nil. She also has diabetes which has been difficult to control, so she was begun on insulin 1 month ago. This causes little functional impairment, and is temporary pending stabilisation.
    This lady is temporarily unfit for work due to her psychiatric condition. Her physical complaints do not prevent light to moderate work. This lady would STRONGLY benefit from English language training and work experience (which she can undertake currently), as it is her lack of literate or spoken English, and absence of work experience or transferable skills, which will make her chronically unemployable, NOT her physical or psychological condition."

  7. On 2 March 2000, the Respondent rejected the Applicant's claim for DSP, on the grounds that the conditions nominated were temporary (T12).

  8. On 3 May 2000, Dr Lamond, a consultant radiologist, following an x-ray of the Applicant's right foot reported that "There is a prominent bony plantar calcaneal spur" (T14).

  9. In a further treating doctor's report dated 17 May 2000, Dr Oner detailed the conditions, clinical features and effect on work ability congruent with his earlier report of 19 January 2000 with the exception, being the addition of a calcaneal spur in the right foot (T18).

  10. The decision to reject the Applicant's claim for DSP was affirmed by an authorised review officer on 27 June 2000 (T22). The matter was further reviewed and affirmed by the SSAT in their decision dated 5 February 2001, in which they concluded that the Applicant had a nil point impairment rating (T2).

applicants' evidence

  1. The Applicant detailed the following matters to the Tribunal:

    ·     The Applicant was born  on 5 June 1952 in Kurdistan, Turkey. She moved to Instanbul and was educated up to to 1964 (primary school). She has five brothers and sisters. She arrived at the age 18, and moved to Ismet. She stayed at home with her husband, their children and did not work. The Applicant immigrated to Australia in 1995 and did not look for work as she was unwell.

    ·     The Applicant was involved in a minor car accident in 1985/86 with no residual effects. In 1998, she was a passenger in the front seat when the car she was in  ran into the back of another car.  In that car accident she knocked her head and knee and received $10,000.00 compensation. The Applicant has had problems with her back since that time.

    ·     In June 1999, her son and her nephew (who was residing with the family) were involved in a serious car accident. The nephew was killed and the son received multiple fractures. The son has recovered physically, but suffers mentally in that on occasions he awakes screaming.

    ·     The accident in June 1999 has affected her. Brake noises affect her. She feels sad, has fainting turns and often falls asleep. She sought medical assistance two to three months after the event from Dr Oner, who prescribed tablets, which did not seem to help.

    ·     In August 1999 she received distressing news of a major earthquake in Turkey and for two to three days was unable to ascertain any information concerning her family as the phones were not working. When phone contact was achieved, the Applicant was advised that nine cousins had been killed, the home of her parents and the houses of two sisters had been destroyed, her mother was sick having been forced to live in barracks in winter, and that many elderly people were dying because of the conditions. In June 2000 she visited her parents in Turkey and then  returned to Australia. Her mother died in December 2000. She finds the totality of the earthquake episode still effects her health, and that event superimposed on the accident in June 1999 causes her to continually think of those events. She saw Dr Chaudhary, a psychiatrist for the first time in early September 1999.

    ·     The Applicant underwent major surgery in Turkey in early to mid eighties, which involved the removal of her uterus and three quarters of the ovaries. Two years ago (in January 2000) she had constant pain in her stomach, and she was unable to hold urine. She used incontinence pads. The Applicant consulted a gynaecologist five months ago, who has recommended an operation, which she has declined to have.

    ·     Two years ago she complained of pains in the right knee, lower back, left shoulder and right foot. The pains at that time were worse in the back and right knee. In relation to each  the Applicant stated the following:

    (a) Lower back pain :

    ·     lower back midline to left side and radiation down left leg to knee. Uses painkillers and Voltaren suppositories, which do not seem to help.  Has had physiotherapy at Westmead Hospital for the back and the right knee;

    ·     two years ago could only walk 200 - 300 metres to the shop and would have to sit down twice on the way, as her back was hurting and her knee was not holding;

    ·     finds that her back pain worsens when she stands or sits for 15-20 minutes and  when she walks to the shops. The back pain varies from day to day and is worse in winter.

    (b) Right foot pain :

    ·     saw Dr Habib in 1999 because of pain in right foot. Dr Habib prescribed insole but the insole did not help.

    (c) Neck and left shoulder pain:

    ·     had a slight constant pain prior to accident in 1998, but the pain got worse after this accident in the neck and left shoulder. Experiences severe pain on and off, worse in cloudy weather and is more apparent when hanging the washing, sweeping and ironing. Had to cease embroidery and knitting four to five years ago because of pain, numbness and nervousness. Carpel tunnel operation on right wrist some two weeks ago.

  2. In response to questions from the Respondent, the Applicant stated the following:

    ·     She had received antidepressant medication from Dr Oner for a few months before seeing Dr Chaudhary. Dr Chaudhary gave her new medication, which gave her some help after seven or eight months. The earlier medication from Dr Oner seemed not to help. At the time of lodgement of her claim for DSP, she was taking the current medication which she feels does give her some help.

    ·     She did exercises for her back as demonstrated by the physiotherapist at Westmead Hospital, but she had to stop, because her legs were hurting.

    ·     Her average day may involve having breakfast with her husband, taking a shower, doing little tasks in the house, going to shops for coffee, reading books, doing the washing and  going shopping with her children. She does not drive but walks to shops with stops on the way. The Applicant does occasionally go swimming.

    ·     She came to the hearing by train and bus, but her right foot is hurting.

    ·     That her depression worsened after her mother died.

    ·     That she has pain in her left shoulder and headaches.

    ·     She has no help with dressing although she experiences both pain and some problems with the activity. She is able to do the washing (machine), hang up and take in clothes from the washing line, but is not able to do ironing. She is able to vacuum, but is not able to sweep or undertake big cleaning jobs. She is able to do some cooking and to wash up the dishes. She can make the bed. She is able to sleep for 3 hours, having to then go to the toilet and then return to bed where further sleep may be disturbed by particular thoughts.

  3. In response to specific questions, the Applicant detailed the following information in relation to her other conditions:

    ·     Diabetes mellitus - diagnosed in 1987. Treated with oral medication. Under care of a consultant endocrinologist. Experienced problems of restlessness and tiredness during second half of 1999. Commenced insulin therapy in January 2000 on advice of specialist. Was referred by endocrine specialist in 2001 to ophthalmologist because of cloudiness with vision (cataract).

    ·     Right knee - knee locks on stairs. She is forced to grab and hold the knee before eventually being able to move on.

medical evidence
dr dennis lewis-enright

  1. Dr Lewis-Enright, a consultant Occupational Medicine Physician, examined the Applicant on 29 May 2001. In his report dated 18 July 2001, Dr Lewis-Enright, having detailed the clinical history of the Applicant, concluded that the Applicant had evidence of diffuse osteo-arthritis, right plantar spur and post-hysterectomy urinary incontinence. In particular Dr Lewis-Enright describes the clinical features of each condition and his assessment under the Schedule 1B Impairment Tables as follows:

    ·     Plantar Calcaneal Spur right foot - Demonstrated on x-ray that this condition had been present for considerably more than two years before documentation. History of repeated injections into spur but no pain relief was achieved.

    ·     Right knee - Patella femoral crepitus significant. Patient states she is unable to walk 500 metres.

    Dr Lewis-Enright assessed these two impairments as have a 10 points rating under Table 4, as the Applicant had pain in both the right knee (osteo-arthirtis) and the right heel (calcaneal spur) and was unable to walk more than 250 metres without resting.

    ·     Thoraco-Lumbar Spine - loss of normal range of movement of greater than 25 percent but less than 50 percent. Use of Voltarin suppositories for pain in lower back which radiates to left leg assessed at 10 points under Table 5.2.

  • Upper Limb Function - pain on movement of left arm, which will cause moderate interference with hand function and manual handling. Demonstrable loss of strength and mobility of limb. Assessed at 5 points under Table 3.

  • Psychiatric Impairment - Depression associated with particular stimuli and chronic pain. Assessed at 10 points under Table 6.

  • Lower Urinary Tract - Post-hysterectomy urinary incontinence requires use of incontinence pad. Not total loss of voluntary control of bladder, but unpredictable. Assessed at 10 points under Table 16 (Exhibit A1).

  1. In a further medical report dated 19 June 2001, Dr Oner confirms that the Applicant has had steroid injections twice into her right heel, without any pain relief (Exhibit A3). In another medical report, Dr Oner confirms that the Applicant did not wish to have an operation for her urinary incontinence (Exhibit A4).

  2. In a report dated 14 August 2001, Dr Chaudhary, a consultant psychiatrist details the history of his interaction with the Applicant from 2 September 1999 onwards. Dr Chaudhary considers the Applicant to be suffering from depression and post traumatic stress disorder (Turkey earthquake), and chronic pain in a number of areas of the body. Dr Chaudhary detailed the following opinions:

    " She is totally and permanently unfit because of the conditions outlined above and despite having treatment on a continuing basis she has not improved sufficiently to achieve a status of health where she could be able to work.
    Her psychological condition continues to exist and it is my opinion that it is unlikely she will improve any further in the next two years and her condition is going to exist which will render her unable to work for at least 30 hours per week. In addition she has numerous physical problems which are outlined above and these are the reasons on which I base my opinion that she will be unable to work for at least 30 hours per week over the next two years and beyond.
    Her psychiatric conditions and physical conditions are likely to persist well beyond the next two years if not for the rest of her life. From educational perspective she is not able to learn or train any new skills to gain meaningful employment in the future. Mrs Sayan's concentration is poor, she is forgetful, she can't take in new information and that will render her total incapable of learning new skills and her depression is also not fully stabilised, her anxiety levels become high at times and due to these reasons she will not be able to process any new information nor will she be able to learn new skills. In my opinion she will continue to be unemployable, untrainable  and further education or vocational training will be a waste of time.
    Her condition in fact has been fluctuating and in essence her condition has got worse and is likely to get worse because of physical problems, which have not responded to treatments available to her. She also remains refractory to antidepressants despite changing antidepressants and she has not made any worthwhile recovery. It is my opinion that her condition remains essentially the same as it was about two years ago when I wrote the previous report  (Exhibit A2)."

  1. In a further whole person assessment, completed as a result of a file assessment on 11 October 2001, Dr Kamenyitzky, a senior medical adviser with Health Services Australia, detailed the following:

    " This case was manifested as there was sufficient information on file to do so without seeing the customer in person.
    The customer was last seen by HAS on 18/02/00 and at that time was found temporarily unfit for work due to depression.
    She has now provided two recent reports from doctors commissioned by legal aid. These reports appear to be somewhat exaggerated but should probably be substantively accepted.
    The customer has generalised aches and pains in the spine, right leg and left arm. This would make it difficult to do heavy or repetitive work. She has also been diagnosed with PostTraumatic Stress Disorder and is receiving appropriate treatment.
    She has a combined impairment rating of 20 and is probably medically unfit for any open, full time work or vocational training and unsuitable for open, full- time work or vocational training and unsuitable for open, vocational rehabilitation in the foreseeable future.
    It is almost impossible to tease out and separate the medical and non-medical issues in a case such as hers and so she has been given the benefit for the doubt. She should be medically fit for all light work for about 20 hours per week. If she applies for portability she should be assessed in person to determine her eligibility as this would be questionable in someone who felt well enough to undertake a long flight and all the stresses associated with international travel and relocation (Exhibit A6)."

submissions

  1. Counsel for the Applicant contended that at the time of application the Applicant had a number of conditions/disabilities which constituted impairments and which affected the Applicant's ability to work. Such impairments included osteoarthritis right knee and calcaneal spur right foot, lumbo-sacral pain with radiation to left leg, upper limb impairment involving the left shoulder and left elbow, urinary incontinence, diabetes mellitus and depression.

  2. Counsel submitted, that after consideration of all the evidence and in particular the medical evidence relating to the psychiatric impairment, the urinary incontinence and the calcaneal spur right foot, the total rating for all permanent conditions is far in excess of 20 points, when each permanent condition is assessed under the appropriate Table.

  3. Further Counsel contended that the Applicant has a continuing inability to work in that:

  • Dr Lewis-Enright and Dr Chaudhary both were of the opinion that because of the combined effect of the various disabilities the Applicant is permanently unfit to work 30 or more hours per week and that the Applicant will not benefit from any vocational or rehabilitation program;

  • the Applicant has no qualifications or skills which when considered with her physical impairments make it improbable that an employer would consider employing the Applicant particularly when the medical evidence from both parties show that the Applicant is unable to undertake repetitive activities because of difficulties with her left shoulder and elbow;

  • when the non physical impairments are also considered it is apparent that any ability to work is further reduced in the light of poor concentration and memory, general weakness and tiredness, symptoms of her depressive illness and other physical elements.

  1. The Respondent submitted that the Applicant's impairments have been properly assessed and that she does not qualify for DSP as the total rating of the impairments under the Schedule 1B Impairment Tables is less then 20 points.

consideration and findings

  1. In this matter the Tribunal observes that there exists a considerable difference of opinion between the two parties as to what impairments existed during the operative period as defined by section 100(3) of the Act and further the appropriate rating that should be assessed under the relevant Schedule 1B Table. Further the Tribunal was advised that a Disability Support Pension had been granted to the Applicant from the 24 September 2001.

  2. The Tribunal, in noting paragraph five of the introduction to the Schedule 1B Tables, observes that once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent, if in the light of available evidence it is more likely than not that it will persist for the foreseeable future which is taken as lasting more than two years. Further the Tribunal observes that a condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without treatment within the next two years.

  3. The Tribunal also has previously drawn attention to section 100(3) of the Act, with the Tribunal again particularising the primary focus to which the Tribunal must direct its attention. The Tribunal further notes the passage from Cooper J in the Secretary, Department of Family and Community Services v Verney (2000) 60 ALD 737, where at page 749, the issue of subsequent evidence is considered and the context for its use by a Tribunal delineated:

    "  Where previous evidence is in the nature of assessments or predications and evidence later becomes available which falsifies the factors on which the assessment was based or demonstrates that the predictions did not prove to be correct, the later evidence is admissible and relevant to the judicial process. To allow the assessments or predication to stand in the face of the falsifying material would not be credible to the judicial process; Mulholland v Mithcell [1971] AC 666 at 680; Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (No2) (1989) 40 FCA 76 at 88. So too with administrative review. Later evidence may be relied upon by the tribunal to demonstrate the falsity of any assessment or prediction and the tribunal would not be entitled to ignore material of which it had notice which demonstrated that earlier material was incorrect, incomplete or misleading: Minister for Aboriginal Affairs v Peko Wallsend Ltd at 44-45."

  4. The Tribunal, having considered the evidence of the Applicant and all the medical evidence that has been placed before it and which has been detailed earlier in this decision finds that the Applicant had the following conditions/disabilities and associated clinical features at the time of lodgement of the claim for DSP on 27 January 2000 and/or during the period of 90 days commencing the day after lodgement (pursuant to section100(3)of the Act):

    (a) Upper limb condition - Pain in left shoulder, left elbow. Difficulty with heavy lifting and working above shoulder level. Present since 1998.
    (b) Low back pain - Pain in lower back, varies in intensity. Difficulty with heavy lifting, prolonged sitting or standing. Present since 1998. Treatment with Panamax/Voltaren suppositories.
    (c) Painful right knee - Pain in right knee, locks on stairs, difficulty with walking, unable to walk 500 metres without stopping to rest, and walks at a slow speed. Present since 1998.
    (d) Painful right heel - Pain in right heel since 1998. There is x-ray evidence of calcaneal spur. Unable to walk 500 metres without stopping to rest and at a slow pace. Treated with insoles and steroid injections without relief.
    (e) Diabetes mellitus - Diagnosed in 1987. Treated with oral medication until endocrinologist recommended insulin injections to be commenced in January 2000, because of increasing difficulty in maintaining a stable biochemical  regime.
    (f) Urinary incontinence - Hysterectomy in 1983, urinary incontinence for some years. Uses incontinence pads. Has some voluntary control but unpredictable. Does not want to have an operation.
    (g) Depression - Present since June 1999, following a car accident involving her son and her nephew. Under the care of GP for a few months before seeing consultant psychiatrist. Treatment with antidepressants and counselling with intermittent amelioration of symptoms of tearfulness, difficulties with sleep, lack of concentration, poor memory and tiredness. Complicated by further stress involving family in Turkey earthquakes. 
    (h) Gastritis - Present some months, epigastric pain and abdominal bloatedness. Gastroscopy reveals gastritis. Symptoms minimal with appropriate medication.

  5. In making the findings as to what conditions/disabilities existed at the relevant period, the Tribunal has drawn upon all the medical reports and concluded that some conditions were present which had not been considered present in the earlier decisions. Further the Tribunal taking note of the defined conditions and in the light of the Applicant's evidence both before the SSAT and at this hearing, has concluded that the Applicant does have difficulty with walking and that she is unable to walk 500 metres without stopping because of pain and that the rate of walking is slow.

  6. In further consideration, the Tribunal concludes that all the conditions, with the exception of gastritis are permanent impairments. The Tribunal does note that much comment has been made about the temporary nature of the condition of diabetes mellitus. This condition has been present since 1987 and under any definition must be considered a permanent condition because for many years it has been treated and stabilised. The issue in question relates to the efficacy of the treatment process, and this raises the question of whether the current destabilisation of a permanent condition constitutes a temporary situation. The Tribunal believes this to be the case and therefore concludes that any assessment must be on the underlying permanent condition unless there is evidence that destabilisation is to continue unabated.

  7. The Tribunal, considers that while the impairment of diabetes mellitus is a permanent impairment, any assessment must relate to the underlying condition. In the Tribunal's view, the treatment process being undertaken is an attempt to further stabilise a temporarily destabilised  diabetic process, with there being no evidence that the destabilised diabetic impairment will continue long term. There is some evidence to suggest that the underlying diabetic disease process may be causing other end organ complications (cataracts), but there was no evidence of such complications during the operative period.

  8. In relation to the psychiatric impairment, namely depression, the Tribunal is satisfied that the condition has been present since June 1999 following the motor vehicle accident causing the death of a nephew and that the condition became further aggravated by the earthquakes in Turkey some months later. The Tribunal also notes the treatment process undertaken by both the attending general practitioner and by the psychiatrist Dr Chaudhary over a period of some two years. Dr Chaudhary states in his report of 14 August 2001:

    " It is my opinion that her condition remains essentially the same as it was two years ago when I wrote the previous report.
    …
    Her condition in fact has been fluctuating and in essence her condition has got worse and is likely to get worse because of physical problems which have not responded to treatments available to her."

  9. In considering the psychiatric condition to be permanent, the Tribunal has noted the diagnosis and treatment and the opinion expressed by the treating psychiatrist. This allows the Tribunal to consider the condition stabilised during the operative period, as the best evidence before the Tribunal is that the condition, albeit refractory to antidepressant therapy, remains essentially as it was during the operative period.

statutory framework

  1. The Tribunal in considering this matter notes the following relevant legislation, namely subsections 94(1) (in part), (2)-(5) of the Act:

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

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

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

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

    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 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 purpose 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 psychological 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."

  2. As a consequence of the Tribunal's findings of physical and psychiatric impairments, the Tribunal concludes that the Applicant satisfies the assessment of subsection 94(1)(a) of the Act.

  3. In addressing the assessment of each of the impairments, which the Tribunal considers to be permanent, the Tribunal makes the following findings:

    (a) Upper limb impairment:
    Pain in left shoulder, left elbow non-dominant limb. Difficulty with heavy lifting, and pain experienced when elevating limb above shoulder. Table 3 of Schedule 1B states:

    "TABLE 3.      UPPER LIMB FUNCTION
    All upper limb problems are assessed under the upper limb Table (Table 3). Each arm is assessed separately. Determination of upper limb impairments must be based on a demonstrable loss of function.
    Rating            Criteria
    NIL      Can use dominant limb effectively and/or
    Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of upper limb which causes mild interference with hand function or manual handling.
    FIVE    Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of non-dominant upper limb which causes moderate interference with hand function or manual handling.
    TEN     Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of dominant upper limb which causes moderate interference with hand function or manual handling.        
    FIFTEEN Demonstrable evidence of  major loss of strength, mobility, coordination, dexterity and/or sensation of non-dominant upper limb which causes significant interference with hand function or manual handling.
    TWENTY Demonstrable evidence of major loss of strength, mobility, coordination, dexterity and/or… "

    In the light of the established clinical findings, and the detailed examination findings of Dr Thomas of 18 February 2000, the Tribunal concludes that there is a nil point impairment rating under Table 3 as the impairment causes mild interference with manual handling.
    (b) Low back pain:
    Pain in lower back - varying intensity - minor radiological changes - no significant loss of normal range of movement. Some difficulty with walking and has to rest before completing 500 metres. Pain on sitting and standing.  The Tribunal does note the finding of Dr Lewis-Enright in his report of 18 July 2001 and that such findings are made on an examination well outside the operative period.
    In the light of the nominated clinical findings, the Tribunal concludes that the Applicant has a nil point impairment rating under Table 5.2, as the Applicant has a normal or near normal range of movement of the lumbo-sacral spine detailed during the operative period.
    (c) Painful right knee and painful right heel:
    Unable to walk 500 metres without stopping. Right knee locks on stairs, difficulty with prolonged standing or sitting (pain). X-ray evidence of calcaneal spur right heel.
    Table 4 of Schedule 1B states:

    "TABLE 4.      FUNCTION OF THE LOWER LIMBS
    Table 4 is used to assess lower limb not spinal function (see Table 5). Assess both limbs together. Determination of lower limb impairments must be based on a demonstrable loss of functions.
    Rating            Criteria
    NIL      Walks without difficulty on a variety of different terrains and at varying speeds for distances of more than 500m.
    TEN     Demonstrable loss of strength, mobility, stability, balance, coordination and/or sensation such as to cause moderate interference with walking and one or more of the following: climbing, squatting, sitting or kneeling or
    Pain or claudication restrict walking to 250-500m or less, at a slow to moderate pace (4km/h). Can walk further after resting
    TWENTY Demonstrable loss of strength, mobility, stability, balance, coordination and/or sensation such as to cause major interference with walking and one or more of the following: climbing, squatting, sitting or kneeling or
    Pain or claudication restricts walking (4km/h) to 50-250m or less at a time. Can walk further after resting or
    Unable to walk or stand but independently mobile using a self-propelled wheelchair."

    The Tribunal finds that the Applicant has a 10 points impairment rating pursuant to Table 4. In making such a finding the Tribunal relied upon the evidence of the Applicant, the clinical findings of Dr Thomas that there was pain at extremes of movement of right knee, radiological evidence of calcaneal spur right heel and the opinion of Dr Oner and Dr Habib, and also the instructions recommended by Dr Thomas that the Applicant avoid walking for greater than 10 minutes and standing for greater than 20 minutes.
    (d) Diabetes mellitus:
    There is no evidence before the Tribunal that the Applicant's diabetes had defined effects on other body symptoms during the operative period. Therapy is in process of stabilisation.
    The Tribunal concludes that the Applicant has a nil points rating for the impairment of diabetes mellitus under Table 19 and in so finding relies upon the evidence which has been placed before it.
    (e) Urinary Incontinence
    Post hysterectomy urinary incontinence, Applicant uses incontinence pads. Some but not total loss of voluntary control of bladder. Table 16 of Schedule 1B states:

    "TABLE 16 - LOWER URINARY TRACT
    This Table is to be used for incontinence and other urethral and bladder outlet disorders.
    Rating            Criteria
    NIL      Minor stress incontinence. Bladder outlet or urethral obstruction with mild symptoms.
    TEN     Loss of voluntary control of bladder, but satisfactory emptying achieved by triggering of reflex activity, suprapubic pressure or Valsalva manoeuvre. No incontinence aid needed
    or
    Ileal or Sigmoid conduit        
    or
    Chronic Urinary Obstruction needing regular catheterisation.
    TWENTY Loss of voluntary control of bladder with dribbling incontinence needing frequent change of incontinence pads, or a collection device, eg. Urodome catheter
    or
    Ureterosigmoidostomy."

    In addressing the impairment under this Table, the Tribunal is firstly satisfied that the impairment escaped the attention of many of the doctors in the original assessment process and secondly that the impairment was firmly established prior to the operative period, and was present during and after the operative period. The Tribunal assesses this impairment at 10 points under Table 16. The Tribunal recognises that Dr Lewis-Enright was the first to accurately record the circumstances leading to the impairment and that the Applicant, having received specialist advice, does not want to have operative treatment. 
    (f) Depression:
    The symptomology, clinical history, treatment and opinions have been clearly stated earlier in this decision. The major difference between the parties is in terms of assessment and predictions in relation to the depression. As indicated earlier Dr Thomas considered the impairment to be temporary, while the SSAT some 11 months after the initial decision and some 20 months after onset, considered the impairment not to have yet stabilised. It is the Tribunal's view that both these assessments/predictions were not correct and that the opinion of the consulting psychiatrist, Dr Chaudhary enables the Tribunal to conclude that the Applicant's impairment of depression was a condition diagnosed, treated and stabilised at or during the operative period. The Tribunal has already detailed the reasoning in paragraphs 38 and 39. Table 6 of Schedule 1B states:

    "TABLE 6       PSYCHIATRIC IMPAIRMENT
    It is important to record a detailed psychiatric history, a mental state examination, and to distinguish between temporary and permanent psychiatric disorders. People with established psychiatric disorders (eg. Bipolar Disorder) may be highly variable in their clinical presentation and this factor must be taken into account in the assessment. The assessment of psychiatric impairment may benefit from investigating; reports from mental health case managers, compliance with and the effects of medication, support systems that people have in place, the degree of insight present and the presence of psychotic illness. Where a person has a short term problem, for example an adjustment disorder with depression following an illness or marital breakdown, initially this should usually be considered to be of a temporary nature. Table 6 is used for permanent psychiatric disorders only. If there is insufficient clinical information available, a current or recent specialist report should be obtained.
    Rating            Criteria
    NIL Mild but regular symptoms which tend to cause subjective distress. On most  occasions able to distract themselves from this distress. Minimal interference with  function in everyday situations. Exacerbation of symptoms may cause occasional days off work. (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. (eg. short periods of absence from work).
    TWENTY Psychiatric illness or disorder with either serious symptomatology OR impairment in functioning that requires treatment by a psychiatrist (eg. Frequent suicidal ideation, severe obsessional rituals, frequent severe anxiety attacks, serious anti-social behaviour, diagnosed psychotic illness with continuing symptoms). There is significant interference with interpersonal or workplace relationships with serious disruption of work attendance or ability to work."

    In assessing the psychiatric impairment, the Tribunal, in relying upon the evidence of the Applicant and the opinion of Dr Chaudhary, as well as other clinical reports as to the symptomology, concludes that the Applicant has a 10 points impairment rating under Table 6.

  1. In concluding the assessment, the Tribunal did consider whether to assess the Applicant's clinical symptomology of pain in many sites under Table 20 of Schedule 1B of the Act. However it did not do so as it considered that such an activity would involve an element of double assessment in relation to the assessments made for depression and lower limb.

  2. As a consequence of the Tribunal's assessment, the Applicant's combined impairment is 30 points pursuant to Schedule 1B of the Act. The Tribunal concludes that the Applicant satisfies subsection 94(1)(b) of the Act.

  3. In addressing the issue of the Applicant's continuing inability to work the Tribunal notes the following:

    ·     Dr Oner's opinion that the Applicant was unable to work because of her impairments for more than two years (T9);

    ·     Dr Thomas' opinion that the Applicant was temporarily unfit to work because of her psychiatric impairment (T11);

    ·     Dr Chaudhary's opinion that the Applicant was unfit to work because of her impairments both in 1999 and again in 2001 and that throughout her psychiatric impairment had remained basically the same. Further Dr Chaudhary considered the Applicant unfit to work for more than two years, and that her impairments would prevent her from undertaking educational or vocational training for at least years if not for life (Exhibit A2);

    ·     Dr Kamenyitzky's opinion that the Applicant is probably medically unfit for any open full time work or vocational training and unsuitable for open, vocational rehabilitation in the foreseeable future (Exhibit A6);  and

    ·     Dr Lewis-Enright's opinion that the Applicant is totally and permanently unfit for work and that this has been a permanent situation, which has arisen from the combined effect of the medical disabilities which have been present and diagnosed for at least two years. Further Dr Lewis-Enright considered that the Applicant would not benefit from vocational or rehabilitation program (Exhibit A1).

  4. In considering the requirements nominated in section 94(2) of the Act, the Tribunal notes that there is defined evidence as opposed to predicted evidence that the Applicant has not been able to undertake work for at least 30 hours per week at award wages during the period in question, and that further it has been concluded that as from 24 September 2001 she has a continuing inability to work, as she has been awarded a DSP.

  5. In dealing with the period in question and relying upon the evidence and opinions that are now before the Tribunal, the Tribunal concludes that the Applicant had during the operative period:

    ·     impairments which of themselves were sufficient to prevent the Applicant from doing any work  within the next two years; and

    ·     the impairments of themselves prevented the Applicant from undertaking educational, or vocational or on-the-job training during the next two years.

  6. It is the Tribunal's finding that the Applicant satisfies sections 94(1)(a),( b) and (c)(i) of the Act in that the Applicant's combined impairment rating is 30 points and that the Applicant has a continuing inability to work as defined by section 94(2)(a) and (b)(i) of the Act. As a consequence the Applicant qualifies for DSP from the date of lodgement of her claim namely 27 January 2000.

determination

  1. The Tribunal determines that the decision under review be set aside and in substitution therefor determines that the Applicant qualified for and was entitled to a Disability Support Pension from 27 January 2000 and that such entitlement is to continue up to 24 September 2001, at which time the Applicant was granted Disability Support Pension.

I certify that the 49 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J Campbell, Member

Signed:         .....................................................................................
  Associate

Date of Hearing  31 January 2002
Date of Decision  11 April 2002     
Counsel for the Applicant        Mr Smith
Advocate for the Respondent  Ms Fahey

Key Legal Topics

Areas of Law

  • Social Security Law

Legal Concepts

  • Social Security Act 1991

  • Assessment of Impairments

  • Continuing Inability to Work

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