Sazegar and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2013] AATA 685
•25 September 2013
[2013] AATA 685
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/3147
Re
Mohammad Sazegar
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Ms N Isenberg, Senior Member
Date 25 September 2013 Place Sydney The decision under review is set aside and a decision substituted that Mr Sazegar satisfies s 94(1)(a), (b), and (c) of the Social Security Act 1991 and, subject to meeting other eligibility and payability requirements, is qualified for a Disability Support Pension.
....................[sgd]....................................................
Ms N Isenberg, Senior Member
CATCHWORDS
SOCIAL SECURITY – pensions – disability support pension – whether the applicant’s conditions were fully diagnosed, treated and stabilised – whether applicant’s conditions attract an impairment rating of at least 20 points – whether the applicant has a continuing inability to work – decision set aside
LEGISLATION
Social Security Act 1991 ss 27, 94; Sch 1B
Social Security (Administration) Act 1999 Sch 2, s 4
CASES
Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252; [2007] FCA 404
Jansen v Secretary, Department of Employment and Workplace Relations [2007] FCA 1358
Re Coates and Secretary, Department of Employment and Workplace Relations [2006] AATA 938
Re Crossland and Secretary, Department of Family and Community Services [2004] AATA 864
Re Hamal and Secretary, Department of Social Security (1993) 30 ALD 517
Re Newman and Secretary, Department of Family and Community Services (2002) 71 ALD 222
Re Rudder and Secretary, Department of Employment and Workplace Relations [2006] AATA 249
Re Sazegar and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 712
Re Stojanovic and Secretary, Department of Employment and Workplace Relations (2007) 94 ALD 507
Re Tlonan and Secretary, Department of Social Security (1997) 24 AAR 467
Re Triantafillou and Secretary, Department of Family and Community Services (2003) 73 ALD 568
Re Watts and Secretary, Department of Family and Community Services [2003] AATA 632
Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444REASONS FOR DECISION
Ms N Isenberg, Senior Member
25 September 2013
On 11 August 2011 the Applicant, Mr Mohammad Sazegar, made a claim for a disability support pension (“DSP”). This claim was rejected by Centrelink. While the Respondent agreed that the Applicant suffers from a number of conditions the Respondent did not accept that his various conditions were necessarily permanent or, if they were permanent, that they would attract the required 20 point impairment rating under the Impairment Tables contained in the Social Security Act 1991 (“the Act”). Further, the Respondent did not accept that the Applicant meets the other requirement of eligibility for DSP, that is, a continuing inability to work.
BACKGROUND
In September 2006, the Applicant, was attacked and stabbed several times by an unknown assailant. He spent in total a week in hospital recovering from his injuries. He suffers from back pain and a psychological/psychiatric condition.
Mr Sazegar has previously applied for DSP before the application which is the subject of these proceedings. In May 2012 in the course of the review in relation to the rejection of an earlier application for DSP he gave evidence before the Tribunal (differently constituted): [2012] AATA 712 (“the earlier decision”). The present application relates to the same conditions as previously, but the Applicant claims they have worsened. His other applications are not reviewed here, but some of the evidence in connection with those applications throw light on his present application.
ISSUES BEFORE THE TRIBUNAL
The issues before the Tribunal are:
(a)Were the Applicant’s conditions fully diagnosed, treated and stabilised?
(b)If so, between 11 August 2011 and 10 November 2011, did the Applicant have an impairment rating of at least 20 points under the Impairment Tables?
(c)If so, did the Applicant have a continuing inability to work?
LEGISLATION
These requirements are set out in s 94 of the Act, which at the relevant time provided:
94Qualification 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)...
(i) the person has a continuing inability to work;
Section 94 of the Act sets out the qualification criteria for DSP. Schedule 2, s 4(1) of the Social Security (Administration) Act 1999 (“Administration Act”) requires a claimant to be qualified for a social security payment within the period of 13 weeks after the day on which the claim was made.
Section 27 of the Act provides that the Tribunal, in reviewing the original decision or a later decision arising from the original one, must apply the Impairment Tables that were in force at the time the original claim for DSP was made. The Applicant applied for DSP on 11 August 2011. At that time the Tables for the Assessment of Work-Related Impairment for Disability Support Pension (1 January 2008 to 31 December 2011) (“Impairment Tables”) were in force. They were located in Schedule 1B of the Act. The Schedule 1B Tables were repealed in December 2011, and the current Tables only apply to claims and review of claims made on or after 1 January 2012.
EVIDENCE
In addition to documents lodged pursuant to s 37 of the Administrative Appeals Tribunals Act 1975 (“the T-documents”), the evidence included a list of medications and a report of a recent MRI performed on the Applicant’s lumbar spine, both provided by the Applicant, and copies of two Centrelink Medical Certificates submitted by the Respondent. Both the Applicant and his wife gave oral evidence.
CONSIDERATION OF THE EVIDENCE AND FINDINGS
When the Applicant was asked to describe the conditions he found to be debilitating in relation to his ability to work, he said that his back condition and his psychiatric condition had the greatest effect.
What are the Applicant’s Permanent Conditions?
Before an impairment rating can be assigned under the Impairment Tables, the requirements set out in the Introduction to the Impairment Tables (“the Introduction”) must be satisfied. An impairment must be fully diagnosed, treated and stabilised and permanent before an impairment rating can be assigned.
Paragraph 5 of the Introduction states that the “condition must be considered permanent”. It provides that after “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.”
Paragraph 6 of the Introduction provides that:
In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:
what treatment or rehabilitation has occurred;
whether treatment is still continuing or is planned in the near future;
whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next two years.
…
In Re Coatesand Secretary, Department of Employment and Workplace Relations [2006] AATA 938, this Tribunal discussed the concept of permanence under the Act and said (at [22]):
… The evident legislative intent is that disability support pensions be paid only when the disabling condition has reached the stage where it can be regarded as being permanent and having a permanent impact upon normal function as it relates to work performance.
Gastric reflux
The Applicant suffers from gastric reflux. The Respondent contends that a rating of nil points under Table 11.1 is correct.
The Applicant said that he has had reflux problems for five to six years. He said he needs to take tablets or he has the problem. He said that even strong cooking smells exacerbate the problem. He said Nexium controls the condition though.
The Respondent relied on the report of Dr Matalani dated 13 December 2010, wherein the doctor gave NIL points under Table 11.1 because the Applicant had mild symptoms, despite optimal treatment, and it had minimal impact on his ability to function. Similarly, Dr Kong, in his report dated 22 July 2011, noted the reflux was permanent but with minimal residual symptoms and rated the condition NIL under Table 11.1.
I agree with the Respondent’s contention that the Applicant’s condition is well-managed with medication and continues to have minimal impact on his ability to function and accordingly attracts a NIL rating under Table 11.1.
Back Condition
The Applicant gave evidence in relation to his back which was broadly consistent with that which he had given before the Tribunal in respect of his previous application, which was noted in the earlier decision as follows:
[15] Mr Sazegar gave evidence that he was helping at a friend’s butcher shop in September 2006 when a man whom he did not know came in to buy meat. In an apparently unprovoked attack, the man “turned around behind me and he just greeted us and I didn’t feel anything except that he was beating me”. Mr Sazegar gave evidence that, when he felt the “beating”, he went outside otherwise he “would have been killed”. He suffered deep knife wounds to his arms, chest and back in the attack and was struck about the face and back.
[16] An ambulance was called and Mr Sazegar was taken to Westmead Hospital where he was admitted for three days. His wounds were stitched and he was kept under observation. After being discharged, he was re-admitted a couple of days later for four days for assessment.
[17] Mr Sazegar had no back problems before the September 2006 assault but says he has had back pain and numbness in his leg every day since. Medication helps “a bit but not much”. He says that, since the assault, he has been unable to walk or sit for long and he has to lie down for several minutes, several times each day.
[18] Mr Sazegar gave evidence that, since the assault, he can only lift light weights and he has been unable to lift his young daughter since she was a few months old. Before the assault he used to do the mowing and helped with housework but now he does nothing. He pays someone to mow the lawn. He can wash himself but not when he is in pain. He needs help to tie his shoelaces. His wife does most of the driving; he only drives if he is going somewhere close to their home.
[19] When he was in Iran, Mr Sazegar helped his father make and sell shoes in a market. When he came to Australia, his visa did not permit him to work for several years. In about 2004 he went into a small mixed business with another man but it ran at a loss and folded after several months. Mr Sazegar’s evidence about his employment in the period leading up to his present application is dealt with below.
He also gave evidence before me that about a month after the attack he had a back x-ray. He was prescribed painkillers and physiotherapy. For the last two years he has been for physiotherapy five times a year which, he said, is the maximum allowed by Medicare. It provides little relief. He enquired about Chinese massage or acupuncture and his doctor has said that when he finishes the current round of the physiotherapy he can try Chinese remedies; the doctor had only recommended it in the last three months. He has only just found out that it is covered by Medicare. After about nine months he went to the doctor complaining of pain down his right thigh, although he said the pain in his leg, which is associated with his back, came on about one and a half years to two years ago. The pain is alternatively burning and freezing or he experiences numbness. About three months ago, he said, there was an MRI conducted which confirmed it was related to his back.
Centrelink had “made” him work so as to be paid Newstart allowance and he had worked as a kitchen hand, and that had only worsened his back condition because there was heavy lifting involved.
He has taken painkillers (Celebrex) since November 2010. He takes one a night. If he takes one during the day, which he has occasionally done, he is too drowsy. He was given something stronger once but it gave him stomach problems and since then he has needed medication for his stomach. He stopped the stronger medication and went back to Celebrex. He enquired if there was something stronger that would not affect his stomach but he was told there was nothing.
He said that if he has to lift anything he has pain in his back. Even something like a small shopping bag will cause pain. He has been unable to lift his daughter (now aged five) since she was a baby. His wife would put the child in his arms and now she comes to sit with him. Walking causes him pain and although he could walk for about 500 metres he would need to rest every two to three minutes. When he goes shopping with his wife he just finds a place to sit while she does the shopping. He drives only for a short distance. He is unable to manage stairs.
He said that he swims one to two times per week in summer at Fairfield indoor heated pool. He has found it helps to walk slowly in the water. As to why he could not continue in winter he said that he had tried once three to four years ago. At home, after he showers, he stays inside for an hour or two. At the pool, he found the shower to not be sufficiently hot and found that he got cold especially as he then he had to go outside to get home.
He said that he is usually able to dress himself although sometimes his wife helps him put his jumper and trousers on if he has trouble bending. His wife also puts on his socks for him for the same reason.
As to whether surgery has been considered he said it had been discussed but he is scared. It could make his back worse and he has been told there is only a 60 per cent chance of any improvement at all. Injections are also risky. He would have to go to a specialist which he cannot afford. He would rather put up with the pain in view of the risk.
He would only consider surgery if the pain can no longer be managed by medication.
He denied ever having been referred to a pain management clinic.
He has been told that losing weight would assist. He tried some herbal aids and lost 10 kg but has put it all back on – he weighs 105 kg. The doctor has recommended that he lose 20-25 kg and that his ideal weight is about 80-85 kg. He said that he eats little – just one small meal per day. He puts on weight when he is nervous or upset; it is not that he eats more when stressed, it is just that he puts on weight.
In cross-examination he was asked about having travelled to Iran in 2006, not long after the assault. He said he was in pain but had to go to Iran because he had not seen his family for seven years, his previous status having prevented him travelling. It was pointed out that he had another trip four to five years ago.
When asked about the number of prescriptions he had had filled, as there appeared to be some gaps in his medication history, he said that his doctor advised him to go off the medications for a period because he hoped he might be better.
Medical evidence in relation to the Applicant’s back
In the previous application for review Senior Member Toohey summarised the medical evidence in relation to the Applicant’s back as follows, and while I did not have the benefit of all of the evidence referred to (although some of the reports in evidence make reference to earlier reports not available me), I accept the following as being an accurate and comprehensive summary of the examinations, investigations, opinions given and treatment of the Applicant in respect to his back condition:
[29] Reports show that Dr Abdalla treated Mr Sazegar’s back conservatively with painkillers and referred him to Dr Vijay Maniam, an orthopaedic specialist, who referred him for radiological investigations.
[30] Dr Maniam reported on 16 April 2007 to Dr Abdalla that Mr Sazegar had been suffering lumbar spine pain and pain in the sacro iliac joint since the assault; it was worse at night and radiated into the lower limbs bilaterally. Dr Maniam noted that Mr Sazegar had been stabbed in the left upper arm, right lower arm, occiput, left flank and left forearm, and had suffered facial laceration and a right sided buckle wound. He concluded he had a musculoligamentous strain and said he was to remain on “conservative measures” and have a CT scan. A CT scan in April 2007 showed minor bulging of the L3/4 disc and minimal spondylolisthesis of the lumbar spine.
[31] In May 2007, Dr Abdalla completed a further report for Centrelink. In relation to Mr Sazegar’s “severe” back pain, he wrote that treatment comprised analgesics and non-steroidal anti-inflammatory drugs, and he was “seen by specialist” (which I take to mean Dr Maniam). He noted that Mr Sazegar’s back condition was likely to last more than 24 months and his ability to function was likely to deteriorate over the next two years because of it. The same report shows that, in relation to his depression, Mr Sazegar had “seen psychologist” and it had a “severe impact” on his ability to function.
[32] On 11 May 2007, Dr Abdalla reported “to whom it may concern” that Mr Sazegar was on continuous medication and under medical supervision and seeing “specialists and [a] psychologist”; his symptoms persisted and his prognosis was guarded. (It is not clear whether this last comment refers to one or both conditions.)
[33] A JCA report on 20 May 2008 by a registered psychologist documented that Mr Sazegar had been participating in psychotherapy and had had ten sessions to date with a next appointment on 28 May 2008; he had a referral to a psychiatrist and the first appointment was to be arranged. The assessor also noted that Mr Sazegar was on medication and participating in physiotherapy for his back and was to be reviewed by a specialist.
[34] In April 2008, Dr Abdalla completed a further medical certificate. His notes are not easy to read but appear to describe treatment as analgesics, NSAIDS (non-steroid anti-inflammatory drugs) and “psychologist counselling”.
[35] A further JCA report on 6 June 2008 noted that Mr Sazegar was “currently undergoing physiotherapy” to treat his lower back pain.
[36] On 17 December 2009, Dr Abdalla completed a DSP medical report. He noted Mr Sazegar’s back pain and difficulty walking, standing and moving. He described treatment as analgesics and “local [indecipherable]” and physiotherapy. He described future treatment as “above and any further treatment that will be available”. He thought the condition would last more than 24 months and would deteriorate.
[37] According to a report of Dr Elias Matalani, a consultant occupational physician who saw Mr Sazegar for assessment in December 2010, he was treated with physiotherapy at the hospital and attended about ten sessions, and he was prescribed painkillers.
[38] On 8 February 2010, Dr Joseph Sanki, a specialist in diagnostic radiology, performed a CT scan of Mr Sazegar’s lumbosacral spine. He found “multilevel spondylitic change” at various levels in his spine, most of which he described as mild. In a report to Mr Sazegar’s then general practitioner, Dr Gias Swid, Dr Sanki said he “may benefit from a CT-guided epidural injection of corticosteroid”. In evidence before the Tribunal, Mr Sazegar could not recall this for sure. He said: “Maybe he told me and I didn’t want to do it. I’m not sure”.
[39] In any event, it does not appear that Dr Sanki’s suggestion was taken up by Mr Sazegar’s treating doctors. Nor is there any evidence of any doctor, treating or otherwise, suggesting that surgery would be appropriate. I note that, to the extent that they make any comment, all reports indicate Mr Sazegar has been compliant with recommended treatment. The evidence about other recommendations for other forms of treatment is dealt with below. They include participation in a pain management program which does not appear to have been suggested by any treating doctor.
[40] Currently Mr Sazegar goes to the pool for hydrotherapy “sometimes” and has “five or six” sessions of physiotherapy each year. He last had hydrotherapy about one month before the hearing, and physiotherapy “about a year ago”. The cost of treatment is a factor.
[41] Mr Sazegar’s pharmacy has provided a list of receipts for medications he bought between February 2009 and April 2012. Giving evidence, Mr Sazegar confirmed [it was] a complete list of what he bought in that period. Around, and during, the relevant period, it shows mostly medications for reflux. Subsequently, it includes anti-inflammatory and anti-depressant medications.
Other medical evidence concerning Mr Sazegar’s back condition
[42] Dr Matalani, and Dr Dale Kong, another occupational physician, assessed Mr Sazegar’s back condition. They prepared written reports and gave oral evidence.
Dr Matalani’s evidence
[43] Dr Matalani examined Mr Sazegar in December 2010. He noted the minor degenerative changes in the CT scans in 2007 and 2010 and in a bone scan performed in March 2010. He diagnosed Mr Sazegar as suffering a soft tissue injury and chronic back strain on the background of spondylosis and spondylolisthesis.
[44] Dr Matalani noted that, despite conservative treatment with painkillers, physiotherapy and anti-inflammatory medication, Mr Sazegar’s symptoms had persisted for years after the assault and he thought the long-term prognosis was “guarded”. He thought Mr Sazegar’s symptoms were likely to persist and any significant functional improvement of his back with or without reasonable treatment within the next two years was unlikely.
[45] In evidence before the Tribunal, Dr Matalani was asked about other forms of treatment, in particular hydrotherapy, pain management and back strengthening exercises. He gave evidence that hydrotherapy might provide short-term temporary benefit but was unlikely to result in long-term improvement in Mr Sazegar’s back pain.
[46] Dr Matalani did not think a pain management program would assist Mr Sazegar. He described it as comprising mainly cognitive behavioural therapy (CBT) supplemented by physiotherapy and medication, which participants usually have to attend daily for three weeks. He thought Mr Sazegar’s participation not feasible because of his lack of English and the program’s heavy reliance on understanding and practising CBT, and the need for Mr Sazegar to comprehend and practise all the information given to him by a number of specialists. He doubted Mr Sazegar would even be accepted into a program because of his lack of English, and he thought working through an interpreter would not be effective. In any event, he said, a pain management program would not affect the underlying pathology in Mr Sazegar’s lumbosacral spine and, given that pathology, it was unlikely it would make a significant functional improvement in his back pain.
[47] Dr Matalani thought back strengthening exercises would be helpful as a “strategy to cope” but, because of the “multiple pathologies” in Mr Sazegar’s back, it would not reduce his pain significantly in the long-term. He did not think any of the treatments (hydrotherapy, back strengthening, pain management clinic) would have reliably led to substantial improvement in 2010. He took into account that, by 2010, Mr Sazegar had undergone some three-and-a-half years of treatment without significant improvement and he did not think any other treatment that would have led to a significant improvement.
Dr Kong’s evidence
[48] Dr Kong examined Mr Sazegar in July 2011. He took a history from Mr Sazegar of a gradual onset of back pain two or three months after the assault which developed into “a constant burning type pain” in his lower back which radiated down into his legs and up into his scapula. He noted the multilevel degenerative changes and disc bulging in Mr Sazegar’s spine shown on the CT scans which he thought were minor and not uncommon in a person of his age. While he did not say Mr Sazegar was exaggerating, Dr Kong thought he complained of pain at an extreme level that was inconsistent with his clinical findings and with his work history.
[49] In his report, Dr Kong wrote that it appeared Mr Sazegar “did not undertake formal treatment for his back pain until at least two years after the assault” when his general practitioner started him on analgesics and a seven-to-ten week course of physiotherapy. It is not clear what he meant by “formal treatment”, and it is not correct to say that Mr Sazegar had no treatment in that time. Dr Kong agreed that a program of physiotherapy at the hospital followed by several sessions of physiotherapy a year as well as pain killers was fairly standard treatment for the acute phase of the back condition but he thought more sustained treatment would be of benefit.
[50] Dr Kong noted that there had been no significant improvement in Mr Sazegar’s condition since 2006 and he thought it likely his impairment would persist for more than two years. However, he did not think it was treated and stabilised during the relevant period because “further treatment options were available”. He thought referral to a pain management clinic appropriate and long-term management with physiotherapy, hydrotherapy and medication advisable. He thought a program would probably take around six months and would need to focus on Mr Sazegar’s lifestyle including weight loss and back strengthening, as well as on his psychological problems.
Senior Member Toohey also had before her a Job Capacity Assessment (‘JCA’) report in December 2009 in connection with Mr Sazegar’s application. There the assessor recommended he have further investigation as “his reported symptoms are not consistent with the pathology of an L3/4 lesion”. Senior Member Toohey noted the assessor is a registered psychologist without apparent expertise in assessing symptoms of disc lesions, and the basis of her comment was not clear. I, like Senior Member Toohey, place no weight on the JCA assessment.
Additional medical evidence in relation to the Applicant’s back
The Respondent relied extensively on the JCA report by Ms Chetty, registered psychologist, and contributing assessors, Ms Jattan (registered nurse) and Ms Tendler (accredited exercise physiologist), dated 16 September 2011. The assessment appeared to me to have been somewhat cursory and relied upon interpretation of material before the assessors, rather than, it seemed to me, their own observations. Further, it was unclear to me how the assessors reached the definitive views about the range of complex medical and psychiatric conditions the Applicant was reported by his treating doctor to be suffering. None of the assessors was called to give evidence. I have attached little weight to the report, especially as there is relevant specialist evidence about the Applicant’s conditions.
In asserting that the back condition was not fully treated and stabilised, the Respondent also relied on medical certificates by Dr Sanki, the Applicant’s GP, dated 3 June 2012 and 7 September 2012, in which Dr Sanki considered the back condition as being temporary. I asked the Applicant why he continued to consult Dr Sanki, when it appeared he was not providing treatment that was helping the Applicant’s back condition. Both the Applicant and his wife expressed confidence in Dr Sanki because he spoke Arabic. They are uneducated and just do as their doctor tells them.
The Respondent submitted that it appears that the Applicant did not undertake treatment for his back pain for at least two years after the assault, and thereafter had a limited program of treatment which did not appear to significantly improve his condition.
In summary, the Respondent contended that the back condition has not been fully treated and stabilised. More importantly, the Applicant had not received all available reasonable treatment as suggested by Dr Kong, a specialist occupational physician with experience in fitness for duty and fitness for work assessments.
Is the Applicant’s back condition permanent?
A condition is regarded to be stabilised when all available reasonable treatment, that may result in a significant improvement within the next two years, has been undertaken, or it must be considered that with or without treatment, a significant functional improvement is unlikely to occur over the next two years. In that regard, I note that it is now two years since this application for DSP and no resolution to the Applicant’s back problems is in sight.
In Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252; [2007] FCA 404 Gyles J made the following comments at [17]:
It is troubling that an applicant presenting with a long standing diagnosed condition being treated in a conventional fashion should be rejected for a benefit, not because of any identified defect in diagnosis or treatment but, rather, upon the basis that further examination by another medical practitioner or other practitioners might suggest some other diagnosis or some other treatment.
The test for whether a condition is treated and stabilised depends primarily on whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next two years. “Likely” in my view means a “reliable expectation” of significant functional improvement (see Re Stojanovic and Secretary, Department of Employment and Workplace Relations (2007) 94 ALD 507 at 513 to 515).
However, the more fundamental question in my view is the reasonableness of the medical treatment to date. Previous decisions of the Tribunal have held that a claimant’s failure to follow treatment recommendations made by their treating medical advisers can preclude a finding that their condition has been “fully treated”: Re Tlonan and Secretary, Department of Social Security (1997) 24 AAR 467 (failure to take migraine medication); Re Rudder and Secretary, Department of Employment and Workplace Relations [2006] AATA 249 (failure to use contact lenses to correct vision); Re Newman and Secretary, Department of Family and Community Services (2002) 71 ALD 222 (failure to attend recommended pain management program).
In Jansen v Secretary, Department of Employment and Workplace Relations [2007] FCA 1358, the Federal Court stated at [23]:
… “generally” persons will wish to pursue reasonable treatment but, exceptionally, there may be circumstance[s] when such persons do not, ie where (i) significant functional improvement is not expected, (ii) there is a medical reason for the person not undergoing further treatment, or (iii) there is “other compelling reason” for the person not undergoing medical treatment.
Heerey J continued at [24] that it is not necessary for a person to show “some reason or fact external to his or her decision not to undergo the treatment in question” but that the “emphasis is on subjective good faith … in the person’s decision, however irrational it may seem.”
I therefore find that the Applicant’s decision not to pursue other treatment options is reasonable on the basis of the evidence before me.
I also find that his condition has, in fact, been extensively treated. In coming to this view, I note the decision in Tlonan (at 476–477), which considers the requirement that a condition be treated:
… That is to say, [treatment] should not be limited to medical treatment in the sense of surgery or the prescription of medication. In its context, the word “treatment” refers to a broad range of therapeutic measures which are reasonable to adopt in the particular case and may include passive measures such as rest as well as active measures including, but not limited to, such diverse measures as the prescription of medication, physiotherapy, exercise generally and counselling. What amounts to the treatment in any particular case will depend on the individual circumstances of that case.
… If a condition is not cured, or at least does not respond, to reasonable methods of treatment or if the side effects of the treatment are such that they are not tolerable or are harmful, the condition can still be said to have been treated. What are reasonable methods of treatment and what side effects are harmful or intolerable so that the treatment should not be pursued are questions of fact to be determined in each case.
The Applicant’s evidence and that of his wife and his doctors supports the conclusion that he has had ongoing back problems since the assault. Not only have those problems not improved, his condition appears to have worsened. At the relevant time, his back had been treated with physiotherapy and medication for some time without any apparent sustained improvement. There was no evidence that he had not been compliant with recommended treatment, other than in relation to the discussion of surgery with a radiologist. This seems to me to be the only possible reason Dr Sanki would consider the condition would be likely to show improvement in the next two years. That suggestion was not made, as far as I can see, by any other doctor. Further, given the advice that the prospects of surgical success were low, compared to the possible risks, it is not unreasonable that the Applicant declined to undergo such surgery.
Dr Kong’s evidence was that the Applicant had undergone standard treatment for the acute phase of his condition. I agree with the finding of Senior Member Toohey that it is relevant that Dr Kong regarded physiotherapy, hydrotherapy and medication as means of long-term management, and that he acknowledged that the Applicant’s psychological problems would need to be dealt with as well.
Also, like Senior Member Toohey, I prefer Dr Matalani’s evidence about the likely benefits of participation in a pain management program, to that of Dr Kong. It was clear to me that the Applicant’s very limited English, lack of education and difficulty concentrating, would make useful participation in a pain management program unlikely. I too also especially accept Dr Matalani’s evidence that further physiotherapy, hydrotherapy and back strengthening exercise might ease the symptoms, but would not alter the underlying pathology of the Applicant’s back condition. Recent MRI evidence (dated 22 March 2013) confirms the condition is ongoing.
I am satisfied they would be unlikely to have led to significant functional improvement within the following two years.
As a result I am satisfied that, in the relevant period, the Applicant had undergone reasonable treatment for his back, and that his condition is, unfortunately for the Applicant, stabilised. I am satisfied his condition has been diagnosed, treated and stabilised, and, in the light of available evidence, it is more likely than not that it will persist for the foreseeable future. As a result I find that the condition should be considered permanent and can be assigned a rating under the Tables.
Table 5.2 assigns, relevantly, the following ratings to a lumbosacral impairment:
...
FIVE
Loss of one-quarter of normal range of movement.
TEN
Loss of one-quarter of normal range of movement as well as back pain or referred pain:
with many physical activities and
with standing for about 30 minutes and
with sitting or driving for about 60 minutes.
or
Loss of half of normal range of movement.
TWENTY
Loss of half of normal range of movement as well as back pain or referred pain:
with most physical activities and
with standing for about 15 minutes and
with sitting or driving for about 30 minutes.
or
Loss of three-quarters of normal range of movement.
...
In December 2010, the Applicant was assessed by Dr Matalani as having a loss of “slightly more than quarter of normal range with back pain and referred pain”, and was of the view that a rating of TEN points was “reasonably consistent” with his findings.
Dr Kong considered that, in July 2011, the Applicant had lost approximately 25 per cent range of movement. He noted the Applicant’s reported sitting, standing and walking tolerance of about seven minutes, inability to sit for any length of time without changing posture, his discomfort on walking more than about 100 metres, and his inability to drive more than short distances.
On the basis of Dr Matalani’s and Dr Kong’s reports, I am satisfied that the Applicant’s back condition attracts a rating of TEN points under Table 5.2.
PSYCHIATRIC CONDITION
The Applicant gave evidence in relation to his psychiatric condition, which was broadly consistent with that which he had given before the Tribunal in respect of his previous application, which was included in in Senior Member Toohey’s decision as follows:
[62] Mr Sazegar gave evidence that, since the assault, he had had trouble sleeping; he feels scared when he remembers the attack and dreams of it three or four times each week. When he takes medication “sometimes” it’s better. He fears going out alone without his wife and he fears crowded places. He occasionally goes to a shop by himself but usually with his wife. He tried to avoid strangers. He is stressed and short-tempered. He feels panic, sometimes up to several times a week.
…
[64] Mr Sazegar’s evidence about when he first sought treatment for any anxiety or depression symptoms was not easy to follow. According to the written reasons of the SSAT, he told that tribunal he had seen a psychiatrist, Dr Alex Sharah, five or six times, and Mr Medhat Metry, a psychologist, twenty times or more. He also said he had started taking Serepax “three month ago” and it made him feel “a bit better”.
[65] In oral evidence before this tribunal, Mr Sazegar said he first sought treatment “maybe two years ago – 2010”. However, it appeared he misunderstood the question asked of him because, on further questioning, he said that in 2006 he went to see Mr Metry for his back and his “nerves”; he saw Mr Metry every two or three weeks for about a year-and-a-half but stopped seeing him because Mr Metry did not give him any medication and he did not feel any improvement.
[66] A JCA report in October 2007 notes that Mr Sazegar had had ten sessions of counselling with Mr Metry, apparently paid for by an insurance company connected to the assault.
[67] A further JCA report in May 2008 noted that Mr Sazegar had participated in ten psychotherapy sessions. The report noted his next appointment was on 25 May 2008 and that he had a referral to a psychiatrist and the first appointment was to be arranged.
[68] It is not clear who that psychiatrist was. The first time Mr Sazegar appears to have seen a psychiatrist was in February 2009 when he saw Dr John Pickering in connection with his application for Australian citizenship. He was apparently referred to Dr Pickering by the Department of Immigration and Citizenship. Dr Pickering’s report is considered below. He did not make any recommendation regarding treatment, presumably because of the limited purpose of his assessment.
[69] In March 2010, Mr Sazegar saw Dr Sharah, psychiatrist, on a referral from Dr Sanki. Dr Sharah’s report is considered below.
[70] Mr Sazegar gave evidence that he has taken the anti-depressant Lovan for about two years. He says it has not helped much and he still has nightmares. More recently he has been prescribed Serepax. As noted below, it appears, from the list of receipts, that he was first prescribed (or purchased) Serepax in April 2010 for medication. Since July 2010 he has purchased Lovan but he does not appear to have done so consistently.
He also gave evidence before me that following the assault, he felt very scared when there were not many people around, and also when there are crowds. He still does not know why he was attacked. He heard about a year ago that someone was caught but he has never been asked to give a further statement. It was not long after the attack that he thought he needed medical attention because of his emotional problems. His psychiatric treatment has consisted largely of counselling. The advice has been to get out of the house and mix with others and not stay by himself. He has tried that but he gets scared when he hears loud noises. He stays at home and watches TV. He prefers cartoons and dislikes movies where there is violence. As to why his condition would stop him working, he said that he would not be able to cope.
He thinks about the assault all the time and has nightmares about it.
Since 2010 he has been on Lovan which has helped a little and without it he is unable to sleep. The doctor says Lovan is best for him. He said he took Lovan nightly, notwithstanding that his prescription record showed some gaps. He said he had some left over and would also buy some extra. Although it only provides some relief, his doctor has told him not to take two.
He says he is getting worse. He is conscious of the fact his condition affects his behaviour at home and he is aware that his condition is having a detrimental impact on his home life. If his daughter cries he gets upset. If his wife’s family visit he goes to a room on his own and does not socialise with them, or indeed anyone. He “can’t stand all the talking”. He does not get on with his brother-in-law who is critical of him and he avoids him, even if they see each other at the shops. He no longer sees his friends, but that was because they have all gone their separate ways and they lost contact.
His wife described a miserable family existence. The Applicant flies off the handle for no apparent reason. His daughter is afraid of him and the Applicant’s wife will not leave her daughter alone with him because he is so unpredictable. Because he shouts at people who might have come to their home, they now have no friends. Relations are strained within the family. He does nothing around the home and she has to do everything. Her life is unbearable and it is as if she has two children to take care of – her young daughter and her husband.
In cross-examination the Applicant agreed the first psychiatrist he had seen was Dr Pickering, which was in connection with his citizenship application, and that was quite a few years after the assault.
He said he is afraid all the time. He did not want to talk to people. At work as a kitchen hand he did not have to interact with the public.
He said that when he travels he is scared – including on the train coming to the Tribunal, as well as taking off and landing on his overseas trips. He has the fear all the time in situations he is unable to control. He goes everywhere with his wife because he is afraid of going out on his own and in unfamiliar circumstances.
Medical evidence in relation to the Applicant’s psychiatric condition
In the previous application for review, Senior Member Toohey summarised the medical evidence in relation to the Applicant’s back:
Mr Metry’s report
[71] On 31 December 2008, Mr Metry reported “to whom it may concern” that Mr Sazegar was under his care for his psychological condition and had last attended that day. He thought Mr Sazegar was suffering from Post-Traumatic Stress Disorder (PTSD) and that his psychological and physical conditions were affecting his interpersonal, social and cognitive functioning.
[72] Mr Metry’s report appears to have been written in connection with Mr Sazegar’s application for Australian citizenship because it refers to his psychological condition affecting his ability “to perform the necessary English tests” but nothing turns on this. Unfortunately, however, it is of limited assistance. It does not say how often he had seen Mr Sazegar, what his treatment comprised, whether any progress had been made or what his prognosis might be.
Mr Kasim Abaie’s report
[73] A report dated 31 August 2010 from Mr Kasim Abaie, a registered psychologist, shows that Mr Sazegar was referred to him for “clinical intervention, psychological assessment, counselling and psychotherapy” on 9 August 2010.
[74] Mr Abaie reported that the results of psychometric tests showed Mr Sazegar had severe depression, extremely severe anxiety and extremely severe stress. He thought Mr Sazegar met the criteria for PTSD, Adjustment Disorder, Major Depression Disorder and “Sleep Disorder (insomnia)”; that he was mentally and physically unwell and required “special care” and long-term therapy and support. Mr Abaie considered him “quite unfit for work” and in need of long-term ongoing medical and psychological treatment to get back to his normal life.
Dr Pickering’s report
[75] Dr Pickering saw Mr Sazegar in February 2009 for psychiatric assessment in connection with his application for Australian citizenship, in particular as to whether he should be exempt from the Citizenship test on the ground of psychiatric disorder or mental disability.
[76] In his report to the Department of Immigration and Citizenship, Dr Pickering outlined Mr Sazegar’s early years in Iran (where he went with his family from Iraq when he was six). He recorded that Mr Sazegar attended school for only three years and had difficulty learning on account of his inattentiveness and poor memory. He noted Mr Sazegar’s attendance at English language classes in Australia and his lack of any real learning. He outlined the 2006 assault and Mr Sazegar’s reported response.
[77] Dr Pickering diagnosed Mr Sazegar as suffering from “a lifelong attention deficit/hyperactivity disorder” (ADHD) and more recent PTSD. He considered the ADHD had “severely impacted on his learning the material he needed for the Citizenship test and indeed has impaired his ability to learn English, in which he has absolutely minimal skills”. In relation to the PTSD, he thought it of “relatively mild degree” but nevertheless “quite disabling” and that it had made his functional cognitive symptoms much worse in that his concentration and memory were even more impaired than they were before the assault.
[78] Dr Pickering concluded that Mr Sazegar’s “ability to concentrate for long periods of time is severe enough that it prevents him from learning” and would prevent him from performing any tests. … [his] psychiatric disorders would severely compromise his ability to do the Citizenship test and provide grounds for exemption”.
General practitioners’ reports
[79] Medical reports from two general practitioners were submitted with Mr Sazegar’s application to Centrelink. It is not clear why.
[80] Dr Gias Swid completed a DSP medical report in 19 October 2009. For reasons which are not clear, it concerned only Mr Sazegar’s psychological condition which he described as “life-long attention deficit/hyperactivity disorder” and PTSD. He noted “current symptoms” as poor memory, problems with attention, irritability, forgetfulness, nightmares, agitation, sleep disturbance, isolation. His note of current treatment is hard to read; it appears to suggest talking to Mr Sazegar’s previous GP and “can’t recall counselling sessions”. It notes “Seen by [Mr Metry] 2008”. Future treatment was “to be reviewed by psychiatrist Dr Pickering if he wishes Rx”. Dr Swid thought his condition would persist for more than 24 months and would fluctuate.
[81] Dr Abdalla completed a report on 17 December 2009. Under conditions that are generally well managed or cause limited or minimal impact on functioning, he noted “anxiety depression [indecipherable]” but noted its impact was “severe”. His note of treatment is indecipherable. He did not think significant improvement could be expected.
JCA report December 2009
[82] According to the JCA report in December 2009, Mr Sazegar started seeing a psychiatrist for ADHD and PTSD in February 2009. Current treatment was “psychiatric review every 3-4 months (cannot see more due to cost)”; future treatment was for reviews to continue. It is not clear who this psychiatrist was.
Dr Sharah’s report
[83] Mr Sazegar saw Dr Sharah in March 2010 on referral from Dr Sanki. Dr Sharah noted that he had been seeing Mr Metry “two times a week for 24 weeks and has also seen a Dr Mahmoud Abu Arab on 15 occasions”. There is no other evidence before the Tribunal about visits to Dr Abu Arab and it is not clear what Dr Sharah was referring to.
[84] Dr Sharah reported there was “no doubt” that Mr Sazegar was suffering from anxiety and depression; he thought of trying Mr Sazegar on anti-depressants but his weight was excessive, at over 100 kilograms, and he did not want to add to that with medication. Dr Sharah thought Mr Sazegar’s management by psychological means was “appropriate”. He thought Mr Sazegar was unable to work due to the depression which did not seem to be responding to the attempts by the psychologist, and he was likely to require psychiatric and/or psychological help indefinitely.
Evidence of Dr Dinnen
[85] Dr Anthony Dinnen, psychiatrist, examined Mr Sazegar in February 2011 and prepared a written report. He gave oral evidence. Evidence was also given by psychiatrist, Dr Samson Roberts. Dr Dinnen and Dr Roberts disagree as to the diagnosis of Mr Sazegar’s psychological condition.
[86] In his written report, Dr Dinnen said he thought Mr Sazegar “quite chronically traumatised” due to a combination of past experiences, including being in a detention centre in Australia. He thought Mr Sazegar had chronic PTSD with associated depressive disorder which caused marked impairment in functioning. He thought it highly unlikely there would be any marked improvement in the next two years.
[87] Dr Dinnen diagnosed PTSD on that basis that Mr Sazegar satisfied the criteria in DSM-IV for that condition. Criterion A requires that a person be exposed to a traumatic event in which both of the following are present:
1The person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others.
2 The person’s response involved intense fear, helplessness, or horror.
[88] Dr Dinnen and Dr Roberts agree that the assault on Mr Sazegar constituted a criterion A1 event but they disagree as to criterion A2.
[89] Giving evidence, Dr Dinnen said he did not specifically question Mr Sazegar as to whether he had a reaction of “intense fear, helplessness or horror” when he was attacked because he thought such a response “self-evident”, given the nature of the assault and that the symptoms described by Mr Sazegar of nightmares and ongoing fearfulness and avoidance of others indicated an extreme emotional response to the attack.
[90] Dr Dinnen did not agree with Dr Pickering’s diagnosis of ADHD. He said he could see why Dr Pickering made that diagnosis, and he would not rule it out, but he could not see any evidence for it himself. In any event, on its own it could not in his view account for all of Mr Sazegar’s symptoms.
[91] Dr Dinnen did not agree with Dr Roberts’ diagnosis of adjustment disorder with depressive features, in particular because one of the criteria for diagnosis of that condition is distress in excess of the stressor. In Dr Dinnen’s view, Mr Sazegar did not demonstrate excessive distress given the nature of the assault.
[92] Dr Dinnen gave evidence that, based on his experience of treating traumatised patients over many years, chronic PTSD does not respond to medication and Mr Sazegar’s PTSD was unlikely to improve with medication. In his view, treatment can relieve the symptoms of PTSD but not cure them; the illness will run its course regardless of a range of treatment and depends on a range of factors including a person’s pre-morbid condition and life experiences. Dr Dinnen did not believe any treatment would cause a significant improvement in Mr Sazegar condition, only some symptom relief. He did not think any treatment other than what Mr Sazegar had had by the relevant period would have made any difference.
[93] Dr Roberts gave evidence (below) that, in his view, CBT could help Mr Sazegar. Dr Dinnen was less optimistic. He accepted it is a recognised form of treatment but does not think it as effective as some others do. He said it is not a unified single form of treatment and relies essentially on talking and persuading a person to think differently about their problems. He did not think it would make a lasting improvement in Mr Sazegar’s condition.
Evidence of Dr Roberts
[94] Dr Roberts examined Mr Sazegar in July 2011 for the respondent. He took a history of nightmares of a man stabbing people and noted he had seen a psychologist “on many occasions”.
[95] Taking into account the symptoms described by Mr Sazegar of anxiety, palpitations, sleep disturbance and so on, Dr Roberts diagnosed him as suffering from Chronic Adjustment Disorder with depressed mood, being a pathological response to an event associated with a reaction beyond what would ordinarily be expected.
[96] Dr Roberts rejected a diagnosis of PTSD. He said Mr Sazegar’s description of the assault did not match with the intense fear, helplessness or horror required by DSM-IV; in particular, Mr Sazegar was not aware of the nature and severity of the incident and it was only later that he realised he had been stabbed. Rather than being intensely fearful, helpless or horrified, Dr Roberts thought he described being very surprised. He acknowledged, however, that an effect of PTSD is that a person may not talk about an event in the detail.
[97] Like Dr Dinnen, Dr Roberts did not agree with Dr Pickering’s diagnosis of ADHD. He said he would not discount that possibility entirely but he would be cautious because a diagnosis of ADHD requires symptoms from childhood and it was not possible to conclude that in Mr Sazegar’s case.
[98] At the time he saw Mr Sazegar, Dr Roberts thought that “with evidence based treatment” his psychiatric condition would improve “to a limited degree” but, as he had not had “full evidence based treatment”, his condition could not be regarded as treated or stabilised fully. He had not received consistent psychiatric treatment either individually or in a group.
[99] On the basis of the list of receipts from Mr Sazegar’s pharmacy, Dr Roberts … did not think he was taking prescription medication on a regular basis. He did not think Mr Sazegar’s weight a relevant consideration in whether he should be prescribed anti-depressant medication because, to his knowledge only one such medication invariably causes weight gain; it is not a necessary side-effect. Overall, he thought Mr Sazegar’s treatment had been “sub-optimal”. Contrary to Dr Dinnen, he thought there was a reasonable expectation that anti-depressant or anti-anxiety medication would help Mr Sazegar but he agreed that chronic PTSD may not [respond] to these treatments.
[100] Dr Roberts agreed with Dr Dinnen that many people with chronic PTSD continue to suffer for years despite treatment and said that chronicity itself undermines progress. He agreed with Dr Dinnen that Mr Sazegar’s “tumultuous” childhood would make him less resilient and more vulnerable to psychiatric illness generally. However, he was strongly in favour [of] the use of CBT following a traumatic event and thought Mr Sazegar could benefit from it. He agreed that its success rate varies depending on the nature of trauma, an individual’s motivation and their current medication. He agreed that with PTSD, one may not expect ever to treat the symptoms to complete remission but that was not [to] say a person could not get back to an acceptable level of functioning.
The Respondent contended that the psychiatric condition was not fully treated and stabilised and therefore not permanent during the claim period.
Although in his report of 15 July 2011 Dr Roberts found no evidence of delusional thinking, hallucinations or disorder of thought form at the time of the assessment, he nonetheless diagnosed the Applicant as suffering from Chronic Adjustment Disorder with Anxious Mood. Dr Dinnen, on the other hand, found the Applicant to be suffering from Chronic PTSD. The Respondent submitted that Dr Roberts’ opinion should be preferred to that of Dr Dinnen.
Like Senior Member Toohey, on balance, I also prefer the opinion of Dr Dinnen to that of Dr Roberts in relation to diagnosis, especially as Dr Roberts agreed it was likely the Applicant was vulnerable to PTSD because of his past experiences. I find on the evidence that the Applicant was suffering from PTSD at the relevant time.
The Respondent contended that irrespective of diagnosis, the Applicant’s psychiatric condition was not fully treated and stabilised during the claim period. The Respondent claimed the nature of the psychological treatment prescribed for the Applicant had not been reported by his treating doctor, and any psychological interventions had not been consistent over the years, and the Applicant continues to remain on the prescribed dosage of medication. The Respondent also noted that the Applicant had not had treatment such as CBT with a clinical psychologist with experience in trauma therapy as suggested by Dr Roberts.
The Respondent relied on the letter of Dr Sanki, dated 14 April 2010, wherein Dr Sanki noted that Dr Sharah, psychiatrist, was of the view that treatment for the Applicant’s psychiatric condition would take a long period of time before it was resolved. Dr Sharah, in his report of 3 June 2010, indicated that he wanted the Applicant trialled on anti-depressants, but declined to prescribe such medication fearing the possibility that it may exacerbate the Applicant’s obesity. It seemed to me that there was no indication that the Applicant had not been compliant with recommended treatment, but had in fact, never been prescribed the treatment Dr Sharah advocated. Further, it seemed to me that Dr Sharah’s view was that, irrespective of the medication (which he did not prescribe) the Applicant’s condition would be difficult to resolve.
Like Senior Member Toohey, I find that the Applicant’s psychiatric condition had been treated and stabilised at the relevant time, and is therefore to be considered as permanent and can be assigned a rating. The Applicant had undertaken, at the relevant date, at least ten, or possibly 20 sessions with a psychologist. Further, I accept that CBT was unlikely to help the Applicant for the reasons identified by Dr Matalani and Dr Dinnen and discussed above. The Applicant may not have been referred to a psychiatrist other than Dr Pickering, but there is no evidence that his GP thought he should be referred to a psychiatrist. When Dr Sharah saw the Applicant in March 2010, he thought he would like to try him on anti-depressants, but nevertheless thought his management by psychological means appropriate, even though he noted he did not seem to be responding to the attempts by the psychologist.
The Applicant’s evidence before Senior Member Toohey was that the first time he took medication for his condition was in about 2010 and has been ongoing. I note though that, in any event, Dr Dinnen gave evidence that medication was unlikely to help the Applicant’s chronic PTSD. Although Dr Roberts thought there was a reasonable expectation that anti-depressant or anti-anxiety medication would help, he agreed that chronic PTSD may not respond to such treatments, although he thought a person with PTSD might get back to an acceptable level of functioning.
The Introduction to the Impairment Tables states that a condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next two years. Reasonable treatment is taken to be treatment that is feasible and accessible and where a substantial improvement can reliably be expected, and the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient.
I am not satisfied that a significant functional improvement in the two years following the relevant period could have been anticipated. This has been borne out by the fact that, in the two years since the Applicant’s application for DSP, there has been no improvement in his condition. I am also not satisfied there was alternative treatment reasonably available that could have been reliably expected to lead to substantial improvement in his psychiatric condition. All the medical evidence, and the presentation of the Applicant before me, suggests that his condition is going to continue at least at its present level, if not worse, for some time, if not indefinitely. Even Dr Roberts thought, at best, there would be limited improvement.
On balance, I am satisfied, on the evidence before me, that the Applicant’s psychiatric condition had been treated and stabilised at the relevant time and can be assigned a rating. It follows from my finding that a significant functional improvement could not be expected in two years this condition is permanent and can be assigned an impairment rating.
Table 6 assigns the following rating to a psychiatric impairment:
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 fulltime 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.
...
Dr Roberts did not assign a rating because he did not consider the condition to be fully treated or stabilised although he thought it was likely to persist for more than two years, and that there would be only limited improvement, whereas Dr Dinnen assigned an impairment rating of TWENTY points. On the available evidence, and particularly noting the evidence of the Applicant’s wife, I consider the descriptor for TEN points more closely reflects the Applicant’s impairment.
Combined impairment
Taken together the Applicant’s combined impairment rating is 20 impairment points.
I therefore turn to the remaining question.
Does the Applicant have a continuing inability to work because of his impairment?
A person has a continuing inability to work because of an impairment if the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next two years; and either if the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next two years; or if the impairment does not prevent the person from undertaking a training activity – such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next two years.
Assessment of an applicant’s continuing “inability to work” was explained by Drummond J in Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444, where the Court set out at 452 the relevant question:
As to s 94(2)(a): Does the impairment of itself, ie, considered in isolation from other matters that may influence his attitude to working, have such an impact on the particular claimant’s capacity for work that it prevents him from doing work available anywhere in Australia, being work of a kind which the particular applicant is, by reason of his existing work skills and experience, capable of performing, without the need for retraining? …
The concept of continuing inability to work is not confined to a claimant’s ability to undertake work for which they are trained and skilled, but rather their capacity to undertake any work. It involves consideration of whether the claimant has an impairment which of itself prevents the person from undertaking any work or which prevents the person from undertaking educational or vocational training for a period of two years (and, if such training is not prevented by the impairment, whether such training would be likely to enable a person to undertake any work for the next two years). See also, Re Watts and Secretary, Department of Family and Community Services [2003] AATA 632 and Re Crossland and Secretary, Department of Family and Community Services [2004] AATA 864.
In Re Hamal and Secretary, Department of Social Security (1993) 30 ALD 517 (at 525), the Tribunal described the realities of the modern workplace and the need to consider the issue of work in its context:
… When considering the issue of work in this context, the tribunal is of the view that it is the “normal” workplace against which a person’s abilities are to be judged, not the workplace of the “benign employer”.
Relying on Re Hamal and Secretary, Department of Social Security (1993) 30 ALD 517, the Tribunal in Re Triantafillou and Secretary, Department of Family and Community Services (2003) 73 ALD 568, interpreted “work” to be work that is carried out in the “open workplace” and not work that is insulated from dynamic and unpredictable demands.
The Respondent contended that the Applicant did not have a continuing inability to work as a result of his medical conditions. The Respondent relied on the JCA dated 16 September 2011 wherein the Applicant was considered to be fit for light, less skilled work at 15-22 hours per week. I have already expressed my views about this JCA.
The Respondent also noted the report of Dr Kong, dated 13 September 2011, where the doctor noted that “on the basis of his physical condition alone [the Applicant] would be fit for sedentary work for at least 15 hours per week where he would be able to adjust posture as required, not lift more than 5kg and not perform repetitive bending or lifting movements.” This assessment does not take into account the Applicant’s psychiatric condition.
Despite the evident difficulties he would have faced, Senior Member Toohey was not satisfied, on the evidence before her, that the Applicant’s impairments would have prevented him from undertaking a training activity in the following two years, or that such activity was unlikely to enable him to work independently of a program of support during that time.
Dr Matalani had given oral evidence qualifying his written report and said he thought the Applicant could have worked 15 hours a week at the relevant time within the restrictions of his disability, although he thought he would need intermittent time off work. He would not exclude some benefit from training.
The Applicant’s evidence before me was that he does little during the day except watch TV. He is unable to prepare a meal, wash or dry up and his wife does everything around the house. He might go to the shops once or twice a week. He said that even when he goes to the shops, he goes with his wife, and not alone.
He said he had worked as a kitchen hand in a restaurant for about nine months in 2009/10. (The earlier decision states that according to Centrelink records he worked from March 2009 to February 2010.) He said he was “forced” to work by Centrelink (apparently to preserve his entitlement to Newstart allowance). He said he had nothing to do with customers. He kept to himself. He was scared of other staff members; he was scared travelling by himself to the job by train. He was asked about his travel overseas in circumstances where he is afraid of people. He said that he was afraid all the time, especially when he would see police at the airport. He is afraid of anything unfamiliar. He said he stopped work because of his back pain. He said that he had tried to work, and wanted to, but he could not. He particularly noted his physical limitations and his inability to concentrate.
The Respondent contended that the Applicant’s ability to perform activities of daily living has not been severely affected by his medical impairments. This is not the evidence of the Applicant and his wife, which I accept.
Dr Dinnen considered the Applicant’s chronic PTSD with associated depressive disorder “significantly interferes with his ability to engage in society, and prevents him from working.” The Respondent considered that this opinion was not supported by the evidence. However, I note that while the Applicant was engaged in employment for a period in 2009/10, he did so with some difficulty and had to leave, on his evidence and that of his wife, because of back pain. He did not engage with customers and kept to himself. He travelled overseas, to see his elderly family, albeit with some anxiety. He may go outdoors but rarely alone.
The Respondent contended that the Applicant is not unemployable and would be able to work given his previous work experience as a salesman, shoemaker, and running a business as he did in 2005. The Respondent noted the Applicant informed Dr Dinnen that he had worked as a tailor and had various other jobs in Iraq (sic), and Dr Roberts that he had worked as a shoe repairman. The Applicant had worked as a kitchen hand in 2009/10 where his primary duties were washing dishes and sometimes moving stock for between 13 and 30 hours per fortnight.
The Respondent noted that the Applicant informed Dr Matalani that he resigned from his employment as a kitchen hand due to his symptoms. The Respondent suggested that this contradicted what the Applicant told Dr Dinnen, that is, he “became upset and couldn’t continue”.
The applicant also mentioned to Dr Dinnen that he found it difficult working at the restaurant for reasons related to his wages, which I accept were low for the effort involved. There was no clear evidence that he had left work for reasons unassociated with his conditions.
The Respondent also contended that the Applicant’s medical impairments would not prevent him from undertaking training within the next two years. The Respondent relied on the report of Dr Kong, dated 13 September 2011, in which the doctor found that the Applicant’s back condition alone would not prevent him from undertaking any training activity within the specified period. Again, that view does not take into account the debilitating effect of the Applicant’s psychiatric condition. The JCA assessors of 16 September 2011 considered the Applicant would benefit from ongoing interventions which include psychiatric/psychological interventions, disability management counselling and vocational assessment to assist the Applicant to maximise his work capacity. To me this does not address practical training measures and is a grab-bag of medical and other therapeutic suggestions. “Vocational assessment” does not amount to training per se.
The Respondent noted that the Applicant was referred by the Legal Aid NSW, which had previously represented him, to Dr Burns, an occupational physician, in order to obtain a specialist report. As the report was not tendered, the Respondent submitted that the failure to file the report suggests that Dr Burns did not consider the Applicant as having met the criteria for payment of DSP. I reject this contention. There was no evidence that the Applicant had personally been supplied with the report, nor that he had withheld it from the Tribunal because it was adverse to his position. I note that the Respondent did not call for the report nor was there evidence that the Respondent had sought the report from Legal Aid NSW, nor had it sought to summons the report.
I do not consider any employer would be able to tolerate the Applicant’s physical limitations, his inability to concentrate and his short-temper. Further, I accept his condition would prevent him from benefiting from retraining for work within the next two years.
I therefore find that the Applicant was, at the relevant date, qualified for DSP because he had an impairment, which is properly rated under the Impairment Tables, of at least 20 points. I also find that because of the impairment, he had a continuing inability to work for at least 15 hours per week in the next two years.
DECISION
The decision under review is set aside and a decision substituted that the Applicant satisfies s 94(1)(a), (b), and (c) of the Act and, subject to meeting other eligibility and payability requirements, is qualified for DSP.
I certify that the preceding 98 (ninety -eight) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member ................[sgd]........................................................
Associate
Dated 25 September 2013
Dates of hearing 25 June and 5 September 2013 Applicant In person Respondent In person Advocate for the Respondent Mr G Lozynsky, Department of Human Services
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