Tahtali and Secretary, Department of Family and Community Services
[2004] AATA 320
•29 March 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 320
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/759
GENERAL ADMINISTRATIVE DIVISION
)
Re MEHMET TAHTALI Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Ms J A Shead, Member Date29 March 2004
PlaceSydney
Decision The decision under review is affirmed.
[Sgd] J A Shead
Member
CATCHWORDS
SOCIAL SECURITY – disability support pension –physical, intellectual or psychiatric impairment – entitlement to disability support pension - whether Applicant has impairment rating of 20 points or more under the impairment tables – whether Applicant has continuing inability to work – decision affirmed.
Social Security Act 1991 - sections 94, 100
REASONS FOR DECISION
29 March 2004 Ms JA Shead, Member 1. The decision under review before the Administrative Appeals Tribunal (“the Tribunal”) was a decision made by the Social Security Appeals Tribunal (“the SSAT”) (T2) dated 15 May 2002, which affirmed a decision of an authorised review officer (“ARO”) dated 10 April 2002 and a Centrelink delegate of the Secretary of the Department of Family and Community Services (“the Department”) on 17 July 2001 (T10) to refuse a Mr Mehmet Tahtali’s claim for disability support pension (“DSP”) (T5). .
2. A hearing was held before the Tribunal on 27 June 2003 at which Mr Tahtali was represented by Mr Colborne of Counsel instructed by Mr Christopher Hynes, Solicitor of Legal Aid NSW. Ms Simone Ryner, an accredited interpreter in the Turkish language assisted the Tribunal. A Centrelink advocate, Mr Emerson Thisthlethwaite, represented the Department.
2. The Tribunal took into evidence documents submitted pursuant to section 37 of the Administrative Appeals Tribunal Act1975 ("the T documents”, T1 – T32). The following exhibits were also tendered to the Tribunal:
Exhibit
Description
Date
A1
Statement of Facts and Contentions on behalf of the Applicant
6 June 2003
A2
NSW Technical and Further Education Commission (“TAFE”) Statement of Attainment (Welding Techniques) of Mr Tahtali
October 1991
A3
Dr L Ghaly Medical Certificate
17 January 1998
A4
Dr I Kuroz Medical Certificates
9 April 1998 & 18 June 2001
R1
Statement of Facts and Contentions on behalf of the Department
23 June 2003
BACKGROUND
3. By way of background, Tribunal extracts the history of the matter from the SSAT decision (T2):
“1. Mr Tahtali is 45 years of age and claimed disability support pension on 3 July 2001.
2. Mr Tahtali was examined by a medical adviser from Health Services Australia on 11 July 2001. The medical adviser assigned impairment ratings of nil for a thoraco-lumbar spine condition under table 5.2, 5 points for ischaemic heart disease under table 1, and 10 points for foot pain under table 4. The medical adviser also identified depression as a temporary condition. The medical adviser concluded that Mr Tahtali was unfit for his previous work, but fit for other work such as customer service and clerical work.
3. On 17 July 2001, Centrelink decided to reject Mr Tahtali’s claim for disability support pension. Mr Tahtali asked for the decision to be reviewed and provided further medical evidence. He was examined by a second medical adviser from Health Services Australia on 2 October 2001. This medical adviser assigned impairment ratings of nil for a cervical spine condition under table 5.1, nil for a thoraco-lumbar spine condition under tale 5.2, points for ischaemic heart disease under table 1, 10 points for bilateral heel pain under table 4, and nil for depression under table 6. The medical adviser concluded that Mr Tahtali was fit for full-time light sedentary duties.
4. On 10 April 2002, an authorised review officer affirmed the decision on the basis that Mr Tahtali did not have an impairment rating of 20 points or more under the impairment tables and did not have a continuing inability to work.”
4. At the SSAT hearing, Mr Tahtali provided the SSAT with a copy of a medical report from Dr Sheikh Habib, Certified Medical Examiner, dated 9 May 2002 (T3).
5. The SSAT did not alter the Department’s decision, for the reasons set out in paragraphs 25 and 26 of its decision (T2):
“23. Mr Tahtali has bilateral foot pain, low back pain, ischaemic heart disease and depression. Hence, he has physical and psychiatric impairments and satisfies section 94(1)(a). The medical adviser from Health Services Australia has assigned impairment ratings of nil for cervical spine condition under table 5.1, nil for a thoraco-lumbar spine condition under table 5.2, 5 points for ischaemic heart disease under table 1, 10 points for bilateral heel pain under table 4, and nil for depression under table 6. The tribunal agreed with the rating of nil for the cervical spine condition under table 5.1 because there is no loss of range of movement,
…
24. The tribunal agreed with the rating of nil for the thoraco-lumbar spine condition under table 5.2 because there is no loss of range of movement, …
…
25. The tribunal did not change the rating for ischaemic heart disease under table 1 because there was some evidence of restriction of activity at the level of 6-7 METS, …
26. The tribunal agreed with the rating of 10 points for bilateral heel pain under table 4 because there is moderate interference with walking and climbing stairs, …
…
27. The tribunal also agreed with the rating of nil for depression under table 6 because at present there appears to be minimal interference with everyday function,
…
28. Hence, Mr Tahtali does not have an impairment rating of 20 points or more under the impairment tables and does not satisfy section 94(1)(b). Hence, he does not qualify for disability support pension ”
6. In the application for review to the Tribunal Mr Tahtali’s reasons for the Application were (T1):
“The reason I want his decision reviewed is because I am in a lot of pain and I cannot work. The problems are my back, neck, ankles and hands, I have also enclosed a current up to date report of my condition. ….”
ISSUES BEFORE THE TRIBUNAL
7. The Department’s written statement of facts and contentions (R1) summarised the issues as follows:
· “Whether Mr Tahtali, during the period between 3 July 2001 and 2 October 2001, had one or more permanent physical, intellectual or psychiatric impairments; and if so,
· Whether Mr Tahtali's medical conditions warrant a combined rating of 20 points or more, under the relevant Impairment Tables which are contained in Schedule 1B to the Social Security Act 1991; and if so,
· Whether Mr Tahtali has, as a result of his medical conditions, a continuing inability to work, or to be re-trained for work, for 30 hours per week, for the period of two years commencing from 3 July 2001.”
8. There was no disagreement, on behalf of Mr Tahtali, with the above issues.
9. The Tribunal notes that to qualify for DSP all three subsections of section 94 of the Social Security Act 1991 (“the Act”) must be satisfied. Also, under Clause 4, Part 2 Schedule 2, of the Social Security (Administration) Act 1999 (“SSA Act”), the Tribunal has to consider Mr Tahtali ‘s conditions for a period of three months, starting on the day he lodged his claim.
LEGISLATION
10. The legislation relevant to the Tribunal’s determination of this matter is section 94 of the Act, which sets out the qualification for DSP. It relevantly provides:
"94. Qualification for disability support pension
94(1) A person is qualified for disability support pension if:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person's impairment is of 20 points or more under the Impairment Tables; and
(c) one of the following applies:
(i) the person has a continuing inability to work;
…
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 form undertaking educational or vocational training or on-the-job training during the next 2 years; or
(ii)if the impairment does not prevent the person from undertaking educational or vocational training or on-the-job training – such training is unlikely (because of the impairment) to enable the person to do any work within the next 2 years.
94(3)In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a)the availability to the person of educational or vocational training or on-the-job training; or
(b)if subsection (4) does not apply to the person – the availability to the person of work in the person’s locally accessible labour market.
94(4)For the purposes of subparagraph (2)(b)(ii), if a person has turned 55, the Secretary may, in considering whether educational or vocational training is likely to enable the person to do the work, have regard to the likely availability to the person of work in the person’s locally accessible labour market.
94(5) In this section:
educational or vocational training does not include a program designed specifically for people with physical, intellectual or psychiatric impairments;
on-the-job training does not include a program designed specifically for people with physical, intellectual or psychiatric impairments;
work means work:
(a)that is for at least 30 hours per week at award wages or above; and
(b)that exists in Australia, even if not within the person’s locally accessible labour market.
.…”
11. In general terms, the impairment rating is determined under Schedule 1B of the Act and the “continuing inability to work” is determined by reference to subsections 94(2), (3) and (5) of the Act.
12. Clause 4, Part 2 of Schedule 2, of the SSAT Act, deals with the commencement day for DSP and relevantly states:
“4 Start day—early claim
(1) If:
(a)a person (other than a detained person) makes a claim for a relevant social security payment; and
(b)the person is not, on the day on which the claim is made, qualified for the payment; and
(c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(d)the person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.”
EVIDENCE OF MR TAHTALI
13. Mr Tahtali was born 10 June 1956 in Turkey. He completed eight years of schooling. He did two years military service between 1976-1978 and during that time he participated in external examinations to obtain the equivalent of the higher school certificate as well as doing office work. After his army service he worked as a handyman in his village. Later he trained as an upholsterer.
14. Mr Tahtali arrived in Australia in 1982. He worked as an upholsterer and for about eight months. In 1984 he broke both ankles as he was going to work. From 1984 through 1996 he had treatment and continued to work. In 1989 he had his own upholstery business for about six months however he closed the business because his English was deficient.
15. In about 1996, Mr Tahtali fell over, injuring his back and legs and he has not worked since. He stated he had been looking for work as an upholsterer and cleaner. He completed a TAFE welding course.
16. In evidence as to how his conditions affected him, Mr Tahtali told the Tribunal he could not work as an upholsterer. In response to questions from his counsel, Mr Tahtali stated “My legs and my back, not able to stand because of pain. I am not able to sit for long periods because of pain or stand for long periods.” He took Nitro spray two sometimes three times a day for his heart condition.
17. Mr Tahtali stated he used a walking stick when he went out and sometimes used it around the house. He stated he was not able to stand on his feet because of his heels. He said took pain killers but could not remember the name. Mr Tahtali has difficulty sleeping. His concentration was affected and he has that problem for the last three to four years. During 1999 he suffered stress when he was separated from his then second wife and children. Mr Tahtali stated that at this time he had headaches every day. He denied that he got upset with people saying “I don’t leave the house.” He said he seldom got upset with his current wife.
18. In response to cross-examination by Mr Thistlethwaite, Mr Tahtali stated that he had been in a motor vehicle accident in 1986. He claimed workers compensation but he did not “got a cent”. He had not claimed for injuries arising from the motor accident as he had been in the wrong.
19. In response to the Tribunal’s questions, Mr Tahtali stated his household comprised himself, his wife and young child. His wife did not work. He accompanied his wife shopping and sometimes cared for their child.
20. Mr Tahtali told the Tribunal he had consulted Dr Kuroz since about 1995/1996. Dr Kuroz had referred him to Dr Lesley Lim, Consultant Psychiatrist, in 1998. In July 2002, Mr Tahtali revisited Dr Lim.
EVIDENCE OF DR HARVEY-SUTTON
21. Dr Philippa Harvey-Sutton, Consultant Occupation Physician, gave evidence at the behest of Mr Tahtali. Dr Sutton noted that bone scan results dated 8 January 2003, revealed mild synovitis. In response to a question from Mr Colborne whether that condition reflected on Mr Tahtali ability to work, Dr. Harvey-Sutton stated that Mr Tahtali would become symptomatic. Dr. Harvey-Sutton opined that Mr Tahtali would suffer pain in his feet. She described Mr Tahtali as having become deconditioned consistent with his bilateral plantar fasciitis and his “general condition in terms of his inability to relate to others”. She considered Mr Tahtali was incapable of working as an upholsterer and incapable of re-training because of his emotional and behavioural manner. She also noted he had no English skills.
SUBMISSIONS ON BEHALF OF MR TAHTALI
22. Mr Colborne’s submission concerning Mr Tahtali’s impairment levels may be summarised as follows:
Condition
Table
Rating points
Comment
Angina/ Ischaemic heart disease
1
5
Relying on reports of Dr Kuroz that record chest pain and medication of Imdur/Nitro Lingual Spray, and treatment by Dr Day, Cardiologist (T4), and Dr A Elliott of Health Services Australia (“HSA”) (T15).
Chronic lower back pain
5.2
5
Dr Kuroz records L4/5 disc protrusion (T14) supported by CT Lumbar Spine report of radiologist Dr Greg Markson (T11). Dr Harvey-Sutton reports ¼ loss of normal range of lumbar movements (T32).
Chronic left foot pain
5
10
Dr A Elliott of HSA (T15), and Dr Harvey-Sutton assessed 10 points (T32).
Neck pain
5.1
5
Dr Harvey-Sutton noted complaints of neck pain and on examination revealed ¼ loss of cervical movements (T32).
Reactive Depression/ Anxiety
8
10
Dr Anthony Dinnen opined chronic mild depressive dysthymic disorder and while severity fluctuated, opined it was permanent (T31).
23. In conclusion, Mr Colborne submitted that Mr Tahtali satisfied the requirements set out in section 94 of the Act as interpreted in the matter of Secretary Department of Social Security v Pusnjak (1999) FCA 99499, and therefore qualifies for DSP.
SUBMISSIONS ON BEHALF OF THE DEPARTMENT
24. On behalf of the Department, Mr Thistlethwaite submitted that to be medically qualified the person must be assigned an Impairment Rating of at least 20 points, under the Impairment Tables contained in Schedule 1B of the Act, and the person must also have a continuing inability to work because of the person's medical conditions.
25. It was also noted that the SSA Act, under Schedule 2, Clause 4 of Part 2, requires that, if a person who has lodged a claim for a payment for which they are not, at that time, qualified to receive, that person must become qualified during the period of 13 weeks following the date the person's claim was lodged, for the claim to be an effective claim. It was contended on behalf of the Department that if Mr Tahtali's medical conditions have deteriorated since 2 October 2001, a new claim must be lodged in respect of the conditions as they have so become.
26. On behalf of the Department, Mr Thisthlethwaite contended that Mr Tahtali's impairments, during the relevant period of consideration, warrant a combined Impairment Rating of 15 points, and in particular (Exhibit R1):
“1.Heart condition: ischaemic heart disease and angina - 5 points (Impairment Table 1). This is the appropriate rating as there is some evidence of restriction of activity at the level of 6-7 METs, as recorded by Dr Elliott on 2 October 2001 (T15/109). This rating is also in accordance with that assigned by Dr Thomas on 11 July 2001 (T7/86);
2.Bilateral heel pain - 10 points (Impairment Table 4). This is the correct rating as M r Tahtali experiences only moderate interference with walking and climbing stairs, as reported by Dr Thomas on 11 July 2001 (T7/87), and as confirmed by Dr Elliott's examination on 2 October 2001 (T15/110);
3.Cervical spine condition - nil points (Impairment Table 5.1). Mr Tahtali had not, during the relevant period, lost any of the range of movement in his cervical spine. This is in accordance with the assessment of Dr Elliott on 2 October 2001 (T15/107), and also with Dr Kuroz' report of 22 June 2001 (T4/13), which made no reference to the cervical spine.
4.Lumbar spine condition - nil points (Impairment Table 5.2). Dr Kuroz' report of 22 June 2001 states that Mr Tahtali had suffered degenerative changes to the L4/5 discs, and that the condition was deteriorating at the time (T4/13). Dr Thomas' examination on 11 July 2001 found Mr Tahtali to have a full range of movement in his lumbar spine (T7/85), and this was also found to be the case by Dr Elliott on 2 October 2001 (T15/108).”
27. Before the Tribunal, it was conceded, that for the purposes of subsection 94(1)(a) of the Act, Mr Tahtali had a combined impairment rating of 15 points however he did satisfy section 94(1)(b) of the Act. It was also submitted that Mr Tahtali does not have a continuing inability to work in terms of section 94(2)(b) (i) or (ii) of the Act.
28. Concerning impairment ratings, in particular it was contended Mr Tahtali's impairments, during the relevant period of consideration during which Mr Tahtali could become qualified in respect of his claim on 3 July 2001, warrant a combined Impairment Rating of 15 points.
29. It was contended the condition of angina/ischaemic heart disease warrants 5 points (Table 1). It was noted there is some evidence of restriction of activity at the level of 6-7 METs, as recorded by Dr Elliott on 2 October 2001 (T15/109). That rating is also in accordance with that assigned by Dr Thomas on 11 July 2001 (T7/86).
30. It was also contended bilateral heel pain warranted 10 points (Table 4), as Mr Tahtali experiences only moderate interference with walking and climbing stairs, as reported by Dr Thomas on 11 July 2001 (T7/87), and as confirmed by Dr Elliott's examination on 2 October 2001 (T15/110).
31. Cervical spine condition warranted nil points (Table 5.1). Mr Tahtali had not, it was contended, during the relevant period, lost any of the range of movement in his cervical spine. That accords with the assessment of Dr Elliott on 2 October 2001 (T15/107), and also with Dr Kuroz' report of 22 June 2001 (T4/13), which made no reference to the cervical spine.
32. Mr Tahtali’s lumbar spine condition warranted nil points (Table 5.2). Dr Kuroz' report of 22 June 2001 states that Mr Tahtali has suffered degenerative changes to the L4/5 discs, and that the condition was deteriorating at the time (T4/13). Dr Thomas' examination on 11 July 2001 found Mr Tahtali to have a full range of movement in his lumbar spine (T7/85), and this was also found to be the case by Dr Elliott on 2 October 2001 (T15/108).
33. Mr Thistlethwaite referred to the notes to the Impairment Tables which state that to be assigned an impairment rating a condition must be permanent, i.e. it must be diagnosed, treated and stabilised, with all reasonable treatment having been trialed. Until the effect of that treatment is known a condition cannot be considered permanent and cannot be assigned an impairment rating.
34. It was contended Mr Tahtali cannot be assigned an impairment rating in respect of his depression as the medical evidence states that, at the relevant times, improvement was considered likely (T30/167). Dr Lim's report of 17 March 2003 provides a detailed history of the assessment of Mr Tahtali's depression (T30/166-168). Dr Lim's report of 26 March 1998 advised treatment for depression, which was considered temporary (T29/165). Dr Lim's assessment on 19 July 2002 was that Mr Tahtali's "disorder would resolve as soon as he made contact with his children, which should occur when the school term started" (T30/167). That was in accordance with the assessment of Dr Thomas on 11 July 2001 (T7/88), and also with that of Dr Elliott on 2 October 2001, in which Dr Elliott made an assessment without specialists' reports on which to rely (T16/119). Dr Kuroz' report of 22 June 2001 also refers to the condition as temporary (T4/14). Accordingly, it was concluded, as there was no diagnosis of a stabilised, permanent condition of depression made prior to 2 October 2001, the condition must be considered temporary for the purposes of the claim, which is under review.
35. Mr Thistlethwaite submitted “continuing inability to work” means that the person cannot work within the next 2 years or that they cannot be retrained or retraining is unlikely to enable them to work within 2 years (section 94(2) of the Act). Work means work of at least 30 hours a week at award wages or above and that exists anywhere in Australia (section 94(5) of the Act). It was contended Mr Tahtali did not, during the relevant period, have a continuing inability to work. It is noted within the medical reports that Mr Tahtali can work at a sedentary-light level within the next 2 years, or could be retrained to do such work (T7/90, T8/96, T15/113 & T16/119). This includes work in the following occupations: light process work, parking attendant, customer service and clerical work.
CONSIDERATION OF THE ISSUES
36. In coming to the correct and preferable decision, the Tribunal took into account the oral and documentary evidence, the submissions, case law and the legislation.
37. Mr Tahtali gave evidence and was cross-examined. Dr Harvey-Sutton gave evidence before the Tribunal.
38. The Tribunal is only able to consider the conditions disclosed in Mr Tahtali’s original claim for DSP. Accordingly, the Tribunal considered the conditions claimed as angina/ischaemic heart disease, chronic lower back pain, chronic left foot pain and reactive depression/anxiety (T5/48).
39. The Tribunal noted that the parties agree with the 5 point impairment rating in respect of angina/ischaemic heart disease and that bilateral heel pain warranted 10 points.
40. The Tribunal considered whether it could agree with the parties. Concerning angina/ischaemic heart disease, Dr Harvey-Sutton stated: “I note that in the documentation there is a reference to ischaemic heart disease but this does not appear to be an issue as he is not able to exercise”; apparently his primary condition of plantar fasciitis prevented him from exercising. The Tribunal finds that his statement supports the case on behalf of Mr Tahtali’s inability to exercise because of his plantar fasciitis and cervical and lumbar conditions, as opposed to addressing any restriction of activity because of angina/ischaemic heart disease. Thus, Dr Harvey-Sutton’s report in that regard was not helpful.
41. On 2 October 2001, Health Services Australia’s Dr Elliott stated (T16/119):
“4. Ischaemic heart disease – the client apparently suffered a heart attack last year. The client stated that he experiences chest tightness first thing in the mornings, and also with emotional upset. However, this chest pain is not related to physical exertion. In relation to new medical evidence (letter from heart specialist Dr R Rajaratnam dated 21/08/01), this states the clients’ symptoms are more likely to be related to dyspepsia rather than angina. The stress echocardiogram report was unavailable today. Notwithstanding, the client’s exercise tolerance is reasonable, so this condition would only prevent heavy physical work.”
42. The Tribunal reviewed the report of Dr Rajaratnam, Consultant Cardiologist, (T14/103), and the Tribunal also notes the stress test results were not available at the hearing. Dr Elliott considered angina/ischaemic heart disease warranted 5 points because Mr Tahtali’s exercise tolerance was approximately 6–7 METS. In an earlier report on 11 July 2001, Dr P Thomas of HSA, opined that the condition meant Mr Tahtali should avoid heavy work. Accordingly it seemed to the Tribunal that that restriction meant that Mr Tahtali was likely symptomatic at 7-8 METS, where the criteria under Table 1.2 was “very heavy exercise”. That being so, the Tribunal agreed that a METS rating of 6-7 was appropriate and consequently the angina/ischaemic heart disease warranted 5 points under table 1.
43. Concerning bilateral heel pain, the Tribunal reviewed the reports of Doctors P Thomas and A Elliott, as well as that of Dr Harvey-Sutton.
44. The Tribunal considered that there is a difficulty with table 4 in that first two criteria are as follows:
“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 restricts walking to 250-500m or less, at a slow to moderate pace (4km/h). Can walk further after resting.”
45. Dr P Thomas opined “Moderate impairment in walking” (T7/87) and Dr Elliott opined that Mr Tahtali’s walking tolerance was 10 minutes and approximately 2 kilometres (T15/110). Dr Harvey Sutton does not support her impairment rating with reasons.
46. The Tribunal having heard the evidence of Mr Tahtali, accepts that the condition bilateral heel pain mitigates against “prolonged walking/standing and walking repetitively on uneven ground” (T16/119), however the Tribunal considers that while the criteria “Walks without difficulty on a variety of different terrains and at varying speeds for distances of more than 500m” is not appropriate, the next rating of 10 impairment points is generous having regard to his reported tolerances. The Tribunal concluded the table 4 deficient in having no middle criteria between Nil and 10 points, so nevertheless must also accept an impairment rating of 10 points.
47. Turning to consider the chronic lower back pain, the Tribunal was minded to accept the report of Dr Kuroz. His report states that Mr Tahtali has degenerative changes to L4/5 discs (T4/13) and his condition is deteriorating. On 11 July 2001 and 2 October 2001, Doctors Thomas and Elliott reported no loss of range of movement (T7/85 and T15/108 respectively). On 10 May 2002 Dr SM Habib reported movements were 2/3rd normal range (T25/135). On 26 March 2003, Dr Harvey-Sutton reported (T32):
“He made ¾ normal range of lumbar movements – flexion, extension, lateral bending to the right and left but was able to sit comfortably with his legs extended on the floor during the course of the consultation. He elected to sit on the floor with his back supported and his feet not touching the floor.”
And earlier Dr Harvey-Sutton had reported:
“At the consultation, he sat on the floor, with his back against a wall and legs outstretched; he said this was because, the pressure of sitting with his feet on the ground was painful. Despite periodic encouragement to sit on the chair, he declined.”
48. The later reports of Doctors Habib and Harvey-Sutton were well outside the period under review. Given that Mr Tahtali could sit with his back supported but his feet not touching the ground, it called into question the findings of those doctors as to his range of movements. For the foregoing reasons, the Tribunal preferred the earlier findings of Doctors Thomas and Elliott that Mr Tahtali had normal range of movement. Accordingly the Tribunal agreed with the nil rating for the thoracic-lumbar spine under table 5.2.
49. It seems to the Tribunal that a cervical spine condition was not disclosed in Mr Tahtali’s original claim for DSP (T5/48) and it is also noted Dr Kuroz’s report of 22 June 2001 (T4/13) made no mention of it. It has, however, been subject to consideration by the ARO, SSAT and submissions before the Tribunal. For completeness, the Tribunal also considered it and found, relying on Dr Elliot’s report on 2 October 2001 (T15/107), that Mr Tahtali did not have any loss of function of his cervical spine during the period under review.
50. Concerning the psychiatric condition, claimed as “reactive depression/anxiety”, the Tribunal agreed with the Department’s submission at paragraph 34 While not directly relevant, Dr Harvey-Sutton’s report makes no mention of that condition. Dr Dinnen’s report dated 31 March 2003 was well after the time of the review however, that report is telling:
“Review of documentation:
…
Finally, of great interest are the two reports from Dr Leslie Lim, psychiatrist, of March 1998 and March 2003. The earlier letter was to the local doctor, Dr Kuroz, with regard to treatment for depression. He noted the patient’s wife had an AVO against him and had not allowed him to see their two sons after suddenly leaving him five months previously. He claimed not to know the reason and denied problems and said they had been technically separated since 1989. He reported being assaulted by his brothers-in-law in 1996, causing the back injury which led to the loss of his upholstery business. At that time his 15 year old daughter was living with him. He was tearful, clearly distressed, and treatment with antidepressant medication was commenced.
In Dr Lim’s second report he wrote that the patient had seen him on two subsequent occasions in 1998, in April and September. On my last visit that year he reported having spent five weeks in gaol for breaching the AVO, but “my clinical notes documented that he appeared calm and was neither anxious nor agitated”. When seen at the request of his local doctor, almost four years later, the patient reported that “he had ‘moved back to my old condition’”, apparently due to the rejection of his disability support pension, and the loss of contact in recent weeks with his teenage sons from the second marriage. On this occasion Dr Lim considered that patient had adjustment disorder with anxiety and depression, but “told Mr Tahtali that there was no psychiatric ground to support his application for a disability support pension. Antidepressant medication were also not thought to be necessary”.
In the section 37 documents I note the decision of the Social Security Appeals Tribunal of May 2002 (2-9) based on the review of the various documents found within the papers. “The Tribunal accepted Mr Tahtali’s evidence that he did have depression after his divorce but he does not feel depressed now”
…
Comment: There are a number of unsatisfactory features in the history and presentation, but I believe the patient deserves the benefit of the doubt.
There is a history of marital disharmony and violence. The history that I obtained on direct and repeated questioning featured an element of inconsistency and evasiveness on the patient’s part. He was visibly unsettled when talking about his mother’s recent illness, and he impressed as a man of intense emotion.
Direct enquiry yielded clear evidence of an ongoing depressive illness – tearfulness on occasion, anger, impaired memory and concentration, sleep disturbance, and subjective feelings of depression. The difficulties in relationships appear related to personal and cultural factors to some extent.
I cannot exclude, but neither can I confirm, the possibility of malingering.
Opinion: I believe he does have a psychiatric disorder, that is a chronic mild depressive (dysthymic) disorder. Although there is obviously some fluctuation in this condition there is a base line level of impairment which I believe is permanent.
The impairment according to schedule 1 B of the Social Security Act, table 6 is either nil or 10%. The criteria for the 10% rating appear to apply – moderate and regular symptoms, general difficulty in functioning with regard to social and personal relationship, has received psychiatric treatment but minor effects on work attendance and/or ability to work.
The psychiatric condition on its own account does not cause him to have a continuing inability to work. It would not prevent him from undertaking educational ore(sic) vocational or on –the –job training within the next two years which would fit him for employment within that two years, in its own right. The psychiatric disorder, by itself, would not prevent him from not prevent him from working 30 hours per week in the open market work place.”
51. The Tribunal found the psychiatric condition during the period under review was temporary or alternatively, having regard to the decision of the SSAT, minimal and if the latter then it warranted Nil points.
52. For more abundant precaution, “continuing inability to work” was further considered by the Tribunal. The definition in section 94(2) only permits the impairments to be considered in examining Mr Tahtali’s inability to work. It excludes other factors, which are not related to his impairment, for example Mr Tahtali’s lack of condition and his lack of English, which were both considered by Dr Harvey-Sutton. The definition of continuing inability to work involves the satisfaction of both subsections 94(2)(a) and 94(2)(b). Having regard to the evidence of Dr P Thomas (T7 & T8) and Dr A Elliott (T15 & T16) the Tribunal was minded that Mr Tahtali could work as a light process worker, or parking station attendant. Therefore, it was considered by the Tribunal that subsection 94(2)(a) was not satisfied. It was also considered that he would not have been prevented from participating in educational, vocational or on-the-job training at the time, and as such would not satisfy subsection 94(2)(b).
CONCLUSION
53. The Tribunal’s determination in relation to Mr Tahtali‘s claim is that at the time of the claim for DSP he did not satisfy the requirements of subsection 94(1)(a) and 94(1)(b), and also he did not satisfy the requirements of subsection 94(2) (a) of the Act and does not have a continuing inability to work. Accordingly he does not satisfy section 94(1)(c) of the Act.
54. Accordingly, in all the circumstances and for the reasons set out above, pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal determines that the decision under review is affirmed. This means that the decision under review is unchanged.
I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of Ms JA Shead, Member.
Signed: A. Krilis .....................................................................................
AssociateDate of Hearing 27 June 2003
Date of Decision 29 March 2004
Solicitor for the Applicant Mr Chris Hynes
Counsel for the Applicant Mr Criag ColborneAdvocate for the Respondent Mr EmersonThistlethwaite
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