Tanrikulu and Secretary, Department of Social Services (Social services second review)

Tanrikulu and Secretary, Department of Social Services (Social services second review) [2020] AATA 5763 (17 December 2020)
Division:GENERAL DIVISION
File Number: 2019/6924
Re:Mr Ayhan Tanrikulu
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Ms A E Burke AO, Member
Date:17 December 2020
Place:Melbourne

The Tribunal affirms the decision under review.
[sgd]........................................................................
Ms A E Burke AO, Member
Catchwords
SOCIAL SECURITY – application for disability support pension – whether qualified – lumbar and cervical spine pain, mental health conditions, ischaemic heart disease, diabetes and hypertension – whether impairment attracts rating of 20 points or more under Impairment Tables – where program of support had not been undertaken – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975
Social Security Act 1991
Social Security (Active Participation for Disability Support Pension) Determination 2014
Social Security (Administration) Act 1999
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Cases
Muir and Secretary, Department of Employment and Workplace Relations [2005] AATA 902
Secondary Materials
Guide to Social Security Law, Department of Social Services
REASONS FOR DECISION
Ms A E Burke AO, Member
17 December 2020
INTRODUCTION

Mr Tanrikulu (the Applicant) is seeking a second tier review of the decision made by the Secretary, Department of Social Services (the Respondent) to refuse to grant the Applicant a Disability Support Pension (DSP) pursuant to section 94 of the Social Security Act 1991 (the Act). Centrelink is the service provider for the then Department of Human Services, now Services Australia.
The application was heard via telephone on 31 August 2020. Mr Tanrikulu was self-represented and Ms Peta Heffernan, a lawyer with the Australian Government Solicitor, appeared for the Respondent. The Applicant gave evidence under affirmation and was cross-examined by Ms Heffernan. At the conclusion of the hearing, the Tribunal requested additional information from Mr Tanrikulu and allowed the Respondent to comment on the additional material.
THE ISSUE IN CONTENTION
The issue in contention is whether Mr Tanrikulu was qualified for a DSP at the date of his claim, 11 September 2018 or within the 13 weeks thereafter, that being to 10 December 2018 (the qualifying period). This is in accordance with s 4(1) of Schedule 2 of the Social Security (Administration) Act 1999 (the Administration Act).
The qualification criteria for DSP are found in s 94 of the Act. In order to determine whether Mr Tanrikulu qualifies for DSP, the Tribunal must consider whether Mr Tanrikulu:
(a)has a physical, intellectual or psychiatric impairment(s);
(b)has a condition which has been fully diagnosed, treated and stabilised and is likely to continue for at least two years;
(c)has a fully diagnosed, treated and stabilised condition or conditions which attract 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables); and
(d)has a continuing inability to work.
BACKGROUND
Mr Tanrikulu is 55 years of age originally from Turkey. He completed Year 10 in Australia and commenced working as a farmer, co-managing a family business with two of his brothers, growing tomatoes. He ceased any physical work in the business in 2006 when he suffered a heart attack. He then performed some supervisory and administration work for the business until 2008 when he ceased paid employment.
Mr Tanrikulu has been involved in several motor vehicle accidents in which he has suffered injuries. At the time of Mr Tanrikulu’s DSP claim, he was in receipt of carer’s allowance, for his wife who has pancreatic cancer. Mr Tanrikulu has at various times since his accident in 2015 been in receipt of payments from the Transport Accident Commission (TAC).
On 22 June 2009, Centrelink conducted a face to face Job Capacity Assessment (JCA) on Mr Tanrikulu, determining that his condition of coronary artery disease was fully diagnosed, treated and stabilised. The JCA recommended a reduced work capacity as Mr Tanrikulu had undergone significant cardiac surgery and was suffering from other medical conditions which continued to have a mild to moderate physical impact.
On 9 July 2009, Centrelink conducted a further face to face JCA on Mr Tanrikulu determining that his conditions of ischaemic heart disease and non-insulin dependent diabetes were fully diagnosed, treated and stabilised. The JCA assigned:
a total combined score of 15 from Impairment Tables 19 and 20.
Ischaemic Heart Disease has not been rated under Impairment Table 1 as client is unable to clearly state his cardiovascular functional limits because of the compounding effects of his lower back problem. It has therefore been rated under Impairment Table 20 and attracts a score of 15 points due to the moderate to severe symptoms he experiences. These include fatigue, fast heart rate and shortness of breath which Mr Tanrikulu occasionally suffers as the result of more strenuous activity or if placed under pressure. These will have an impact on his ability to perform physical work related tasks, but a mild to moderate impact on his ability to complete more sedentary tasks. His self care is unaffected and his independence maintained.
Non Insulin Dependent Diabetes attracts a score of NIL from Impairment Table 19 which is currently well controlled and has no impact on Mr Tanrikulu's ability to function.
On 11 September 2018, Mr Tanrikulu lodged an application for DSP, citing his medical conditions as:
neck injuries, nerve pinch neck, muscle spasm, neck pain, can’t sit for long, can’t stand up for long time, I have pain attackes, on medication, psychiatric treatment [and] pain medication.
On 5 October 2018, Centrelink rejected Mr Tanrikulu’s DSP application as he had provided insufficient medical evidence on which to assess his claim.
On 24 June 2019, on internal review, a departmental ARO affirmed the Centrelink finding of 5 October 2018. The ARO determined that as none of Mr Tanrikulu’s conditions were permanent he could not be given an impairment rating, stating the following:
Your treating doctors have reported that you have the following conditions: mixed anxiety and depression and post-traumatic stress disorder (PTSD); ischaemic heart disease, cardiac arrhythmia, high blood pressure and high cholesterol; type 2 diabetes mellitus; and lower back and neck pain.
I have found that at the time of your claim your conditions cannot be considered permanent.
On 29 November 2018 your treating doctor, Dr Baglar, reported the conditions of anxiety, depression and PTSD. On 15 December 2018 another treating doctor, Dr Shanmugam, reported the conditions of mixed anxiety and depression with panic attacks.
The introduction to Table 5 (Mental Health Function) of the Impairment Tables says that the diagnosis of a mental health condition such as depression, anxiety or PTSD must be mad by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).
There is no available evidence of a diagnosis of a mental health condition by either a psychiatrist or clinical psychologist. I have therefore found that your conditions of depression, anxiety and PTSD cannot be considered fully diagnosed at the time of your claim. As I have found that your conditions have not been fully diagnosed they cannot be considered permanent and cannot be given an impairment rating at this time.
On 29 November 2018 Dr Baglar, reported the conditions of high cholesterol and cardiac arrhythmia. Dr Baglar did not provide any information regarding the diagnosis, treatment, prognosis or functional impact of these conditions.
On 15 December 2018 Dr Shanmugam, reported the conditions of ischaemic heart disease type 2 diabetes mellitus, high blood pressure and high cholesterol. Dr Shanmugam reported that these conditions had been present since 2009 and that they were being treated with medications. The functional impact of these conditions was reported by Dr Shanmugam as chest pains.
Your record indicates that your conditions of ischaemic heart disease, type 2 diabetes mellitus, high blood pressure and high cholesterol have been present for many years and were previously reported as well managed with diet and medications.
While your record indicates that these conditions have been present for many years, at the time of your claim your treating doctors did not provide details of the current treatment and prognosis of these conditions and they did not report that these conditions affected your capacity. As there is limited evidence available and no reported functional impairment resulting from these conditions I have found that they cannot be considered permanent and that no impairment rating is able to be assessed at this time.
Dr Baglar also reported the conditions of lower back and neck pain on 29 November 2018 however no information was provided regarding the diagnosis, treatment, prognosis or functional impact of these conditions.
The evidence also indicates that you presented to the Emergency Department at The Northern Hospital on 2 November 2018 following a motor vehicle accidence where you reported tenderness in the neck and lower back pain. The report completed by Dr Nour at The Northern Hospital at that time indicates that a CT scan found no appreciable disease and you were discharged with analgesia and for follow-up with your treating doctor.
While these conditions are included in your evidence, your treating doctors have not provided details of the diagnosis, treatment and prognosis of these conditions and they have not reported how they affect your capacity. As there is limited evidence available and no reported functional impairment resulting from these conditions I have found that no impairment rating is able to be assessed at this time.
On 25 September 2019, the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT Tier 1) affirmed the decision of the ARO to reject Mr Tanrikulu’s DSP claim. The AAT Tier 1 concluded that none of Mr Tanrikulu’s medical conditions attracted an impairment rating. The AAT Tier 1 determined that Mr Tanrikulu’s:
·Lumbar and cervical spine condition had not been fully diagnosed, treated and stabilised;
·Ischemic heart disease could not be assessed as there was insufficient information available;
·Anxiety, depression and post-traumatic stress disorder could not be assessed as there was insufficient information available; and
·Diabetes, hypertension and hypercholesterolemia were fully diagnosed, treated and stabilised and warranted nil points as they were under control.
On 22 October 2019, Mr Tanrikulu sought a review of the AAT Tier 1 decision by this division of the Tribunal (Tier 2), as he disagreed with the decision, stating: None of my disabilities have been looked into. I have heart disease, diabetes, psychological problems, have nerve [compression], nerve root C5, C6 and C7. Muscle [wasting] left arm and hands, loss [movement] on my left arm. I have short term memory loss.
RELEVANT LEGISLATION AND ISSUES
Section 94(1) of the Act provides that a person is qualified for DSP 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;
…
Paragraph 6(3)(a) of the Impairment Tables require that an impairment rating can only be assigned if the condition causing that impairment is “permanent”.
Paragraph 6(4) of the Impairment Tables states that a condition is “permanent” if:
(a)       the condition has been fully diagnosed by an appropriately qualified    medical practitioner; and
(b)       the condition has been fully treated; and
(c)       the condition has been fully stabilised; and
(d)       the condition is more likely than not, in light of available evidence, to persist   for more than 2 years.
The introduction to each relevant Impairment Table requires that “self-report of symptoms alone is insufficient” and “there must be corroborating evidence of the person’s impairment”.
Paragraph 6(5) of the Impairment Tables states:
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a)        whether there is corroborating evidence of the condition; and
(b)        what treatment or rehabilitation has occurred in relation to the condition; and
(c)        whether treatment is continuing or is planned in the next 2 years.
Paragraph 6(6) of the Impairment Tables states:
For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a) either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)       The person has not undertaken reasonable treatment for the condition and:
(i)        significant functional improvement to a level enabling the person to           undertake work in the next 2 years is not expected to result, even if     the person undertakes reasonable treatment; or
(ii)       there is a medical or other compelling reason for the person not to undertake reasonable treatment.
For the purposes of paragraph 6(7) of the Impairment Tables, reasonable treatment is treatment that:
(a)        is available at a location reasonably accessible to the person; and
(b)        is at a reasonable cost; and
(c)    can reliably be expected to result in a substantial improvement in functional   capacity; and
(d)        is regularly undertaken or performed; and
(e)        has a high success rate; and
(f)        carries a low risk to the person.
The issue to be determined in this review is whether, during the qualifying period, Mr Tanrikulu suffered an impairment(s) that can be assigned 20 points or more under the Impairment Tables; and, if so, whether he had a continuing inability to work.
The Impairment Tables are function-based rather than diagnosis-based. They describe functional activities, abilities, symptoms and limitations. They are designed to enable the assignment of ratings to determine the level of functional impact of an impairment and not to assess conditions.[1]
[1] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 s 5(2).
Paragraph 6(1) of the Impairment Tables sets out that, when assessing functional capacity, a person’s impairment must be assessed on the basis of what a person can, or could do; not on the basis of what a person chooses to do or what others can do for the person.
Paragraph 6(8) of the Impairment Tables further provides that the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating can be assigned. In other words, a person may be diagnosed with a condition but, with appropriate treatment, the impairment from the condition may not result in any functional impact.
It is necessary, therefore, to consider the Applicant’s medical conditions with reference to the applicable Impairment Tables.
Part 2 of the Social Security (Active Participation for Disability Support Pension) Determination 2014 (POS determination) sets out a number of exemptions to the general requirements that a person must participate in a program of support for at least 18 months in cases where a person does not have a severe impairment.
The Determination relevantly provides:
Part 2—Requirements for active participation
7 Requirements for active participation
…
(4)      This subsection is satisfied in relation to a person and a program of    support if:
(a)      the program of support was terminated before the end of the             relevant period; and
(b)      the program of support was terminated because the person   was unable, solely because of his or her impairment, to   improve his or her capacity to prepare for, find or maintain   work through continued participation in the program.
(5)      This subsection is satisfied in relation to a person and a program of          support if:
(a)      At the end of the relevant period, the person is participating   in the program of support; and
(b)      The person is prevented, solely because of his or her    impairment, from improving his or her capacity to prepare for,                    find or maintain work through continued participation in the               program.
THE TRIBUNAL’S CONSIDERATION AND FINDINGS
Evidence before the Tribunal
The evidence before the Tribunal included documents provided under section 37 of the Administrative Appeals Tribunal Act 1975, referred to as the “T documents”, and additional medical reports that were lodged by Mr Tanrikulu.
DOES MR TANRIKULU HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT?
Section 94(1)(a) of the Act provides that to qualify for DSP, in the first instance a person must suffer from an impairment.
The Respondent accepts that Mr Tanrikulu is suffering from Lumbar and cervical spine pain, anxiety, depression, post-traumatic stress disorder (PTSD), ischaemic heart disease, diabetes, hypertension and hypercholesterolemia. The Tribunal finds that Mr Tanrikulu was living with impairments during the qualifying period and therefore meets the requirements of section 94(1)(a) of the Act.
As noted above, section 94(1)(b) of the Act states that the second requirement to qualify for the DSP is that the person’s impairments rate 20 points or more under the Impairment Tables.
DOES MR TANRIKULU HAVE MEDICAL CONDITIONS THAT RESULT IN IMPAIRMENTS THAT CAN BE RATED 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES?
Mr Tanrikulu advised the Tribunal he had suffered a heart attack in 2006 and had undergone triple bypass surgery and this had greatly impacted his physical and mental wellbeing. He advised that from this time he had been unable to undertake the physically demanding work required on his family farm and had suffered extreme depression which greatly impacted his ability to function.
Mr Tanrikulu advised the Tribunal that his heart condition combined with the impact of his many years of performing heavy manual work and numerous motor vehicle accidents had left him totally unable to perform any work. He said his back and neck condition were severe and that he suffered significant memory loss. He also said he spends a great deal of his day doing not much as he is in a great deal of pain. He had been unable to get any further medical evidence as his General Practitioner (GP) was only seeing emergency patients during the COVID lockdown. However, he had a report from Dr Jaya Shiyamurgan which he read out to the Tribunal, but to date this report has not been filed by Mr Tanrikulu.
Mr Tanrikulu advised the Tribunal his complex medical conditions have been preventing him from working for many years and this has impacted his family situation. He had been his wife’s carer for many years but had managed this as she does not require physical support to shower or move, but he had cared for her in all other ways. However, his relationship has completely broken down and he needs to be able to move off the carer’s payment.
Lumbar and cervical spine pain
On 1 July 2009, Dr Phillip Lu, GP, completed a medical report for an earlier DSP claim for Mr Tanrikulu. In the report, he advised he had been Mr Tanrikulu’s treating doctor since 2006 and Mr Tanrikulu had been a patient at the clinic since 1999.

Dr Lu’s 2009 report diagnosed Mr Tanrikulu with lower back pain, disc fault at L4/L5 level which had arisen from his farming labouring work. Symptoms were described as ongoing pain and treatment included analgesia and modified duties. He opined the condition restricted Mr Tanrikulu’s ability to sit/stand/move and lift goods, and that the prognosis was uncertain and fluctuated.
On 13 July 2009, Dr Lu provided a medical certificate which diagnosed lower back pain which was causing ongoing pain and was likely to persist.
On 8 March 2016, Dr L Wong, radiologist, reported on an Xray and ultrasound of Mr Tanrikulu’s left shoulder concluding that there was mild subacromial bursitis and no rotator cuff tear.
A report from the Emergency Department at The Northern Hospital dated 2 November 2018 diagnosed trauma form a motor vehicle accident. Past history was noted as Prev MVA 2015 - c-spine injury, lower back injury and nerve damage to legs and the examination findings were:
Collared and initiated spinal precautions
Head/neck - airway patent, c-spine tender C5/6 + L paraspinal. PEARL, CN II -
Chest - CCRT 2s. Symmetrical chest movements, BS bilaterally. Trachea central. Bruising over sternum. Old sternotomy scar. HS I + II + 0, reg
Abdo - tender to palpation across upper abdomen. Nil guarding. BS+
Pelvis - no tenderness
Limbs - Periph neurology grossly intact. Good SLR bilat Limbs NAD
Spine -Tender to palpation L4/5 (old injury). T4/5 (new). C 5/6 (pre-existing injury but not usually tender)
On 9 May 2019, Dr Gareth Phillips reported on a CT scan of Mr Tanrikulu’s cervical spine, observing:
At the C5/6 level, there is mild disc space narrowing and there is a small central posterior disc herniation with disc calcification not significantly compromising the thecal sac or nerve roots. No lateral disc herniation is seen and no significant bony narrowing of the exit foramina is identified.
At C6/7 level, there is a small to moderate sized central posterior disc herniation mildly compromising the central thecal sac but not significantly encroaching laterally on the lateral recesses or exit foramina.
No other abnormality is seen. No other disc related pathology identified…
On 20 July 2019, Dr Daniel Ou, reported on an MRI of Mr Tanrikulu’s cervical spine concluding mild C6/7-disc protrusion which indents the cord but no canal or foraminal compromise.
On 16 March 2020, Dr Hakan Baglar, GP, provided a report to Centrelink in respect of Mr Tanrikulu’s current medical conditions. In the report, he advised Mr Tanrikulu:
….was involved in a MCA during which he sustained lower and neck injuries and he developed vertigo.
Because of the state of his neck he is not able to keep his neck in a flexed position and because of his lower back pain he is unable to bend rotate, lift, carry any item.
On 23 and 28 October 2019, Dr Baglar provided medical certificates which diagnosed neck-low back pain, strain due to motor vehicle accident which was a temporary exacerbation of a permanent condition. He described the symptoms as neck pain, low back pain which limited Mr Tanrikulu’s ability to sit, stand and walk and that treatment included physiotherapy, hydrotherapy and chiropractic.
At the hearing, Mr Tanrikulu gave evidence that during the qualification period:
·he was not driving as his licence had been cancelled but he was trying to get it back;
·he was awaiting the outcome of a sleep study;
·his neck and back gave him many problems;
·he cannot bend;
·he cannot turn;
·he has pain in his arms, he has been tested for carpal tunnel;
·he cannot sit for long, up to 10 minutes;
·he cannot stand for long, up to 10 minutes; and
·that he could not lift heavy objects.
The Respondent accepts that Mr Tanrikulu suffers an impairment in respect of his back and neck based upon the 2009 report of Dr Lu and confirmed by a CT scan of the cervical spine in 2019 which reports disc herniations at the C5/6 and C6/7 levels.
However, the Respondent contended that the condition was not fully treated or stabilised during the qualification period as the available medical evidence indicated Mr Tanrikulu had undertaken limited treatment, namely medication, physiotherapy prior to 2010 and visits to the chiropractor. The Respondent contended there was no indication of any referral to a specialist such as a surgeon or pain specialist for either condition prior to the qualification period, nor indication of any treatment of the cervical spine condition prior to the qualification period.
The Respondent contended in the absence of evidence of investigation of the lumbar and cervical spine impairments, including whether Mr Tanrikulu had consulted a specialist for these conditions and what treatment he had undertaken for the conditions, that neither condition could be considered to be fully treated or stabilised so as to be assigned an impairment rating.
The Respondent argued that if the Tribunal found Mr Tanrikulu’s lumbar and cervical spine condition was fully diagnosed, treated and stabilised, the available evidence indicated no more than 5 impairment points could be allocated for the impairment under Table 4 of the Impairment Tables. Particularly as there was no reference to Mr Tanrikulu’s ability to sit in or drive a car for at least 30 minutes.
Mr Tanrikulu disputed his condition was not fully treated or stabilised as he had undergone treatment for his neck and back pain. Further Mr Tanrikulu contended that pain management treatment was not going to reduce his pain levels or improve his functionality. He advised the Tribunal he had already undertaken a pain management program in 2017 which had been organised by his neck specialist, Dr Gus Augusta, following neck surgery. Mr Tanrikulu argued this program had not had any impact on his pain levels or ability to perform tasks. He told the Tribunal that TAC was now insisting he undertake another pain management program which he is currently doing.
Mr Tanrikulu advised the Tribunal that in addition to the pain management program, he also took medication to assist with the pain, has seen a physiotherapist and a chiropractor and also undertaken hydrotherapy.
Following the hearing, Mr Tanrikulu submitted additional medical evidence from his treating physiotherapist and an extensive report from his pain management clinic. The Respondent contended that, notwithstanding the further material filed by Mr Tanrikulu, his impairments were not fully treated or stabilised during the qualification period.
In an undated report Mr Tanrikulu submitted after the hearing, Abhi Kalia, Physiotherapist, notes the following:
[Mr Tanrikulu] currently attends Alpha Health Physiotherapy for his MCA injuries which occurred on the 17th March 2015. Ayhan first attended physiotherapy on the 16th of July 2016. He presented with cervical, left shoulder and left arm pain. He underwent an ultrasound for his shoulder which revealed bursitis as well as supraspinatus tendinopathy. His CT scan of his cervical spine revealed severe degenerative disc disease, with a midline posterior disc osteophyte complex and mild flattening of the anterior surface of his spinal cord.
Ayhan first presented to the clinic with cervical spine and L shoulder pain. Since it had been a while from the date of the accident to his first physiotherapy session, chronic pain was a major issue. He was also complaining of pins and needles along his left shoulder and down his left arm. This caused him issues, especially affecting his sleep at night. He also presented with psychological issues, which may contribute to the hindrance in his physical recovery. He is currently seeing a psychologist for his PTSD symptoms.
Ayhan attended a pain management program and was also seen by a neurosurgeon who did not recommend surgery at this stage. We have been slowly improving the strength of his upper limbs as well increasing his range of motion, in both his shoulder and cervical spine. It has been a slow process due to the chronic nature of his injuries.
Ayhan has slowly begun attending hydrotherapy to help his rehab and will further benefit from physiotherapy treatment.
On 20 May 2020, Mr Matthew Richards, APA Pain Physiotherapist of Advance Healthcare, prepared a multi-disciplinary pain management assessment into Mr Tanrikulu’s physical and mental wellbeing. Mr Richards advised that Mr Tanrikulu is currently attending a pain management program at the Bundoora clinic of Advance Healthcare. The report advised:
Mr Tanrikulu reported that he was involved in three motor vehicle accidents - March 2015, August 2018 and November 2018 (as described above). Since these accidents Mr Tanrikulu reports pain in his right hip, lower back (right sided), left shoulder, arm and hand, and he also reports pain in his neck and head. Mr Tanrikulu described his pains as ‘sharp’, ‘constant’, and ‘pulling’, and he indicated that his pain ratings range from 4 to 9 out of 10 (10 is worst pain). Mr Tanrikulu said his pain is aggravated by activities lasting more than 30 minutes (e.g. sitting, standing or walking) as well as carrying shopping bags. Mr Tanrikulu is not working as a farmer due to pain, distress, cognitive impacts and functional impairments. In addition, Mr Tanrikulu said that due to pain he no longer goes fishing and running, that he cannot complete household cleaning, but he does his own cooking. Mr Tanrikulu continues to drive, but he said his licence will expire in June 2020 and in order to extend his licence he requires a driving assessment with an occupational therapist, he indicated he was stressed about the prospect of losing his driving capacity.
In reviewing beliefs about pain and how they were coping with pain, Mr Tanrikulu commented ‘something is happening in my body…I need a specialist to look at my neck, I would like to have surgery’. PSEQ and PCS scores note severe impairment of self-efficacy related to pain and severe levels of pain catastrophising. Mr Tanrikulu appears to believe he has not been fully assessed physically and that there is significant pathology causing his pain. Mr Tanrikulu has previously attended a pain management program at Dorset Rehabilitation in 2017 (May to November) but he said this did not help him. Mr Tanrikulu copes with pain using medication, resting on the floor, activity avoidance (e.g. cleaning, fishing, running), 30 minute walks with his dogs, and distraction.
Location and nature of symptoms
Mr Tanrikulu reported the main problem as being the cervical region. The symptoms were described as:
• Numerous pains come on separately
• Constant left cervical, left upper trapezius and scapular region pulling, vibrating, pins and needles and numbness and rated as 8/10. This radiated to the left arm and forearm and biceps region to the wrist region (he has been diagnosed with CTS but he feels its related to the upper limbs pains)
• Intermittent lower back sharp pain rated as 0/10 or 8/10 (no in-between) and worse with movement and standing
• Mid back pain feels tired and aching and rated 6/10 but can “take my breath away”
• Intermittent migraines lasting 3 hours, 3 times per week and rated as 6-7/10
• Leg muscle spasms and pain under feet and in the toes bilaterally and after driving for a period
Aggravating factors and 24 hour behaviour
Functional problem  Comments
Walking limited to 20 minutes  Mid back pain
Sitting limited to 30 minutes  Lower back pain
Static standing limited to 10-15 minutes  Lower back pain
Unable to forward bend
Unable to lift more than <5kg (e.g. shopping)
Unable to do heavy housework (vacuuming = cervical pain,
mopping = lumbar pain)
Unable to do any gardening (unable to mow)           Avoids gardening; pain
prevents anything
Markedly restricted in social/recreational activities
Driving limited to 30minutes before he gets out to walk
Lying on left shoulder
Unable to go fishing  Required sitting/standing
statically = not enjoyable
Physical examination
Able to sit for 30 minutes with the appearance of mild-moderate discomfort. Undressed and transferred with the appearance of mild discomfort. Moderately flexed cervico-thoracic posture in standing and sitting. At 180cm and 115kg Mr Tanrikulu had a Body Mass Index of 35.5 which was in the obese class 2 range. Before the injury Mr Tanrikulu weighed 110kg.
Treatment
Mr Tanrikulu would likely benefit from a multi-disciplinary pain management program 2-3 times a week for 8-12 weeks. This program would provide treatment targeting the specific barriers to recovery.
A pre-program period appears appropriate for review of the findings of a recent neuropsychology assessment, liaison with Mr Tanrikulu’s psychiatrist at Northpark Private Hospital, and to confirm any future surgical plans which appears to be a significant treatment focus.
Having considered all the evidence before it, the Tribunal is satisfied that Mr Tanrikulu’s long-standing condition of lower back and neck pain was fully diagnosed during the qualification period, noting the 2009 report of Dr Lu which was confirmed by CT scan in 2019 and the report of The Northern Hospital dated 2 November 2018.
The Tribunal also considers the condition was fully treated and stabilised during the qualification period, relying upon the medical certificates and reports of Dr Baglar, Mr Kalia and Advance Healthcare, which all indicate that Mr Tanrikulu has been receiving treatment for this condition originally arising from his heavy labouring work and then numerous motor vehicle accidents (MVA) over many years. The Tribunal relies upon the corroborating medical evidence and finds that Mr Tanrikulu had undertaken physiotherapy, hydrotherapy and chiropractic treatment, taken analgesic, undergone surgery and a pain management program in an attempt to deal with his persistent pain issues. The Tribunal did not concur with the view of the Respondent that as Mr Tanrikulu had not seen a specialist, such as a surgeon or pain specialist, for many years his condition could not be considered treated and stabilised.
The Tribunal relies upon the report of Advance Healthcare and determines Mr Tanrikulu had undertaken and was continuing to undertake treatment for this persistent condition. The Tribunal did not concur with the Respondent’s contention that this treatment would lead to significant improvements in Mr Tanrikulu’s functionality, noting the guarded terms of the Advance Healthcare report which identified the need for treatment targeting the specific barriers to recovery. Additionally, Mr Tanrikulu would initially benefit from a pre-program with a focus on pain education, graded exposure to movement in order to challenge damage beliefs and to develop confidence in returning to meaningful activity. The Tribunal also observed Mr Tanrikulu’s already negative attitude to the benefits of a pain management program, having undertaken one in the past with no improvement noticed and his persistent belief there was a surgical resolution to his condition. The Tribunal observed the pain management treatment was at best assisting Mr Tanrikulu manage his pain and associated mental health disorders but was not returning him to any functional capacity.
The Tribunal finds that Mr Tanrikulu’s condition of lower back and neck pain was having a moderate impact on his functionality during the qualifying period, as he self-reported and as corroborated by his treating medical practitioners. The Tribunal noted his inability to sit for at least 30 minutes, to drive, to flex his neck, to stand for long periods, to bend and to lift heavy objects.
The Tribunal assigns 10 points under Table 4 – Spinal Function for this condition, as the impact of this condition was causing Mr Tanrikulu moderate difficulty with sitting, moving his head and bending.
Anxiety, Depression, Post-Traumatic Stress Disorder (PTSD)
On 13 July 2009, Dr Lu provided a medical certificate which diagnosed depression and panic attack which had been causing stress, anxiety and panic attacks since 2006, was likely to persist and for which he was being treated with medication and counselling from specialists.
On 22 July 2019, Associate Professor Brian Chambers, neurologist, provided a report to Mr Tanrikulu’s GP. In the report, he opines:
He’s had a visual field test which shows a slight field loss on the right side. There is now a concern that the accidents may have been caused by seizures… I agree that Auyhan may have epilepsy so I’m organising an MRI scan of the head and an EEG.
On 22 July 2019, Ms Emily Zou, Psychologist/Clinical Neuropsychology Registrar, and

Dr Nadja Berberovic, Senior Clinical Neuropsychologist/Clinical Psychologist at Brain Matters, provided a medical report to Mr Tanrikulu’s GP of a neuropsychological assessment review of Mr Tanrikulu’s memory and cognition. In the report they opined, relevantly:
With respect to Mr Tanrikulu’s current neuropsychological profile; his premorbid intelligence was estimated to fall in the low average range. Against this, his current results show mild to moderate impairments in working memory, processing speed, verbal learning and memory. Significant impairments were found in visual learning and memory, abstract verbal and non-verbal reasoning, visual processing, verbal letter and category fluency, clock drawing and mental control were judged to be at expectation and consistent with his premorbid estimates. Of note, Mr Tanrikulu’s performance was inconsistent across the three performance validity tests. As such, the results of the current assessment may be influenced by inconsistent effort and needs to be interpreted with care,
…
With regards to Traumatic Brain Injury (TBI) markers relating to the two motor vehicle accidents in 2018, Mr Taranikulu did not report head strike, loss of consciousness (LOC) or experiencing post-traumatic amnesia following both accidents (i.e. 01/08/18 and 02/11/18) … there was insufficient evidence to demonstrate a traumatic brain injury following his recent MVAs. Furthermore, the results of his current assessment largely show improvements in a number of cognitive domains with no notable areas of decline.
The mild improvements in Mr Tanrikulu’s cognitive profile could be due to a combination of events (e.g. improved sleep or suggestive of his cognition stabilising with time). Of concern remain his self-endorsed elevated low mood, anxiety and stress levels as well as the frequency of his recent MVAs and subjective complaints regarding his vision.
… Mr Tanrikulu’s cognitive profile shows marked impairment in his ability to divide and switch attention, response inhibition and variable processing speed. These factors as well as his low mood will have an effect on his ability to pay attention, respond quickly to changes in traffic conditions as well as the ability to make rapid decisions…
It is strongly recommended that Mr Tanrikulu engages with a psychologist to help improve his mood and assist with social insight building as this will likely have a positive impact on his cognition and functioning within his family.
On 16 March 2020, Dr Baglar advised that Mr Tanrikulu:
…also has been suffering from … anxiety, and depression.
Because of his MCA Ayhan’s cognitive capacity is affected adversely and currently he’s referred to a Neuropsychiatrist and his first appointment is pending. He is unable to focus and maintain his concentration.
On 23 and 28 October 2020, Dr Baglar provided medical certificates which diagnosed depression and cognitive impairment.
Mr Tanrikulu gave evidence that during the qualification period:
·he suffered serve panic attacks and on numerous occasions his family has called an ambulance;
·he was no longer allowed to take his own blood pressure as this caused him great distress which has resulted in severe panic attacks;
·since his heart surgery he has been fearful of doing any physical work;
·following his car accidents, he is fearful and again these have caused panic attacks;
·had (and still has) no ability to concentrate;
·had (and still has) terrible memory loss;
·was able to look after himself; and
·had (and still has) little social life.

The Respondent contended that at the qualification period, Mr Tanrikulu’s anxiety, depression and PTSD were not fully diagnosed, treated or stabilised as there was no evidence, at the qualification period, Mr Tanrikulu’s mental health condition had been diagnosed by either a psychiatrist or clinical psychologist, in accordance with Table 5 of the Impairment Tables.
The Respondent contended that at the qualification period there was no evidence
Mr Tanrikulu was receiving treatment or medication for his mental health condition and there was limited evidence of the functional impact of Mr Tanrikulu’s mental health condition.
Mr Tanrikulu disputed his mental health condition was not fully diagnosed, treated or stabilised, as he had been seeing a psychiatrist since 2017 and a psychologist since 2018. He said his GP had put him on a mental health care plan, and he had completed the eight appointments. Mr Tanrikulu advised that his GP was now refusing to allow him to see a psychologist and that most of his current treatment was being funded by TAC, but they had refused further funding for treatment. Additionally, he has been on anti-depressant medication for many years.
The Advance Healthcare multi-disciplinary pain management assessment of 20 May 2020 reported:
Mr Tanrikulu’s general psychological symptoms were reviewed. Tanrikulu reported:
• Extremely severe levels of depression based on DASS-21 score
• Extremely severe levels of anxiety based on DASS-21 score
• Severe levels of stress based on DASS-21 score
• PTSD type symptoms as measured by the Post Traumatic Stress Disorder Checklist - Civilian following motor vehicle accident
Mr Tanrikulu noted extremely severe levels of depression symptoms, extremely severe levels of anxiety symptoms, and severe levels of stress symptoms, based on DASS scores. There is consistency between Mr Tanrikulu’s clinical presentation and his DASS-21 scores. In terms of depressive symptoms, Mr Tanrikulu noted feeling persistent sadness, reduced pleasure ‘I cannot make myself happy’, fleeting suicidal ideation without intent, reduced motivation, social withdrawal, binge eating to cope with distress, weight gain of 10kg since his accident in 2015, and reduced concentration. Mr Tanrikulu denied current and historical self-harm. He takes anti-depressant medication for his mood. In terms of anxiety, Mr Tanrikulu said he experiences panic attacks up to twice a week and that these first started in 2017 when he had an adverse reaction to pain medication, which he states, resulted in visual hallucinations followed by panic attacks. He also engages in ruminative thinking but that he tries to cope by focussing on the present moment and he uses Diazepam to cope with anxiety. In terms of stress, Mr Tanrikulu said he has significant financial stress, he is concerned about his future driving capacity, and that his home environment is busy and stressful. Factors that contribute to his overall levels of distress include his moderate-severe ratings of pain, his functional limitations, his loss of income, his loss of meaningful employment as a farmer, reduced family support, as well as family conflict.
Mr Tanrikulu noted clinically significant levels of PTSD symptoms, based on PTSD checklist. There is consistency between Mr Tanrikulu’s clinical presentation and the PTSD checklist. Mr Tanrikulu described some post-traumatic amnesia in that he cannot remember aspects of his road traffic accidents. In addition, he also presents with nightmares (in relation to his accident, being robbed, falling from aircraft and snakes), flashbacks about his accidents when he closes his eyes, and he engages with cognitive suppression to avoid thinking about his traumatic accidents. Mr Tanrikulu continues to drive despite his trauma history, but his driving is likely affected by his visual perceptual deficits and he has been recommended for an occupational therapy driving assessment. Further assessment of PTSD is warranted, as well as liaison with his consultant psychiatrist.
Mr Tanrikulu said he had a triple bypass in 2005 and around this time he first experienced anxiety about his cardiac health. Mr Tanrikulu denied any depressive episodes and denied ever seeking psychiatric treatment prior to his road accidents. Mr Tanrikulu has a complex health background, as in addition to his chronic pain condition he also has high blood pressure, type diabetes, and sleep apnoea (using CPAP). Mr Tanrikulu also has neurological complaints since his accidents as he has been assessed for seizures by a neurologist, he has visual perceptual deficits (he struggles to find objects in his pantry and he bumps into things), and he says he has learning and memory issues. As mentioned above, Mr Tanrikulu said he developed visual hallucinations as a side effect of pain medication, but cessation of the medication resolved these hallucinations. Mr Tanrikulu later expressed that he believes he knows what other people are thinking and feeling, which may suggest some disordered thinking.
Using the DSM-V, Mr Tanrikulu was provisionally diagnosed with adjustment disorder with depressed mood and anxiety in the context of their injury and persistent pain condition. Mr Tanrikulu also presents with symptoms of post-traumatic stress and he has a history of psychotic symptoms, thus further assessment is required, as well as liaison with his consultant psychiatrist Dr Yogananda Ballekere at Northpark Private Hospital. Mr Tanrikulu also presents with visual perceptual deficits and he indicated that he has additional cognitive issues, so efforts have been made to obtain his neuropsychological reports from Brain Matters, Bundoora. In addition, Mr Tanrikulu presents with severe levels of pain catastrophising, severe impairment of pain self-efficacy and severe levels of fear avoidance behaviours.
Mr Tanrikulu would initially benefit from a pre-program with a focus on pain education, graded exposure to movement in order to challenge damage beliefs and to develop confidence in returning to meaningful activity. Mr Tanrikulu would also benefit from dietetics input due to his emotional eating, and weight gain. Mr Tanrikulu struggled to identify functional goals for treatment, so goal setting will be important. In addition, Mr Tanrikulu will require an occupational therapy assessment of his driving and this should be requested via the TAC. If Mr Tanrikulu is deemed appropriate for a network pain management program, he will benefit from activity pacing, sleep hygiene, management of panic attacks and behavioural activation for his mood. Given Mr Tanrikulu’s cognitive issues, he may need a directive and repetitive approach in order to consolidate his learning and memory – further cognitive strategies will hopefully be provided by way of his neuropsychological reports.
The Respondent contended that whilst the additional medical reports filed by Mr Tanrikulu indicate he is seeing a psychologist, there is no indication as to when he started seeing the psychologist nor was there any report from the psychologist addressing the treatment provided to him and over what period. As such the Respondent continued to argue that Mr Tanrikulu’s mental health condition could not be considered fully diagnosed, treated or stabilised.
Having considered all the evidence before it, the Tribunal is not satisfied that Mr Tanrikulu’s mental health condition described as anxiety, depression and PTSD was fully diagnosed, treated and stabilised at the date of qualification, noting there was no evidence that this condition had been diagnosed by an appropriately qualified medical practitioner during the qualification period. The Tribunal did note Dr Baglar and Dr Lu had made numerous refences to Mr Tanrikulu’s continued anxiety, depression and PTSD associated with his pain, heart attack and MVA’s.
Additionally, the Tribunal noted Advance Healthcare provisionally diagnosed Mr Tanrikulu with adjustment disorder with depressed mood and anxiety in the context of the injury and persistent pain condition and referenced the fact Mr Tanrikulu was seeing a psychologist for this condition. However, this diagnosis cannot be relied upon, as there was not a report before the Tribunal from a clinical psychologist or psychiatrist, despite the numerous requests for Mr Tanrikulu to furnish such a report. Additionally, there was little evidence before the Tribunal that Mr Tanrikulu had engaged with any treatment for his mental health condition or any medical evidence of the impact of this condition on his functionality during the qualification period.
The Tribunal therefore did not assign any points under Table 5 – Mental Health Function for this condition.
Ischaemic Heart Disease
Dr Lu’s 1 July 2009 report diagnosed Mr Tanrikulu with ischaemic heart disease/Myocardial Infarction, which had required heart bypass surgery in 2006. Dr Lu reported that
Mr Tanrikulu’s symptoms were easily experienced shortness of breath and tiredness and occasional chest pain and required numerous medications to manage the condition. Dr Lu advised the condition would need regular review. Dr Lu advised the condition had affected his family labouring job and the condition could deteriorate.
On 13 July 2009, Dr Lu provided a medical certificate which diagnosed ischaemic heart disease which resulted in exertional shortness of breath.
Mr Tanrikulu gave evidence that during the qualification period:
·he suffered from shortness of breath and palpitations;
·he sees his heart specialist yearly who monitors his heart function by testing his exercise stress levels while he walks on a treadmill;
·he mainly took medication to manage his heart condition; and
·his heart was bruised in one of his car accidents.
The Respondent accepts that Mr Tanrikulu’s heart condition was fully diagnosed at the qualification period relying upon the 2009 report of Dr Lu.
However, the Respondent contended that the condition was not fully treated or stabilised during the qualification period as the available medical evidence indicated whilst Mr Tanrikulu had undergone myocardial infarct heart bypass surgery in 2006, there was little evidence of the status of the condition, treatment he was receiving or prognosis of the condition.
The Respondent argued that nil points could be assigned to Mr Tanrikulu’s heart condition because apart from Mr Tanrikulu’s reports of chest pain there was no medical evidence addressing what, if any, functional impact results from the condition.
Having considered all the evidence before it, the Tribunal is satisfied that Mr Tanrikulu’s long-standing condition of ischaemic heart disease was fully diagnosed, treated and stabilised at the date of qualification, noting he had undergone triple bypass surgery in 2006, was on lifelong medication and annual review for this chronic illness.
The Tribunal finds that Mr Tanrikulu’s heart condition was having a mild impact on his functionality during the qualifying period, as he self-reported and as corroborated by his treating medical practitioners. His occasional shortness of breath and chest pain restricted his ability to undertake any strenuous activity and perform heavy manual labour.
The Tribunal assigns 5 points under Table 1 – Functions Requiring Physical Exertion and Stamina for this condition, as the impact of this condition was causing Mr Tanrikulu difficulty with undertaking strenuous activity.
Diabetes
Dr Lu’s 2009 report diagnosed Mr Tanrikulu with diabetes that was managed with diet and not causing any functional impact.
Mr Tanrikulu gave evidence that during the qualification period:
·he suffered from highs and lows with his diabetes;
·he was and still is on insulin and follows a strict diet; and
·he gets a dry mouth when he is experiencing a high, cannot think straight, is thirsty and suffers memory loss.
The Respondent accepts that Mr Tanrikulu’s diabetes was fully diagnosed at the qualification period, relying upon the 2009 report of Dr Lu.
However, the Respondent contended that the condition was not fully treated or stabilised during the qualification period as the available medical evidence did not indicate what treatment besides diet Mr Tanrikulu was receiving for the condition.
The Respondent further contended that at the qualification period the evidence indicated Mr Tanrikulu’s diabetes was well managed and not having any functional impact.
The Tribunal finds that Mr Tanrikulu’s diabetes was fully diagnosed, treated and stabilised during the qualifying period and that, as a chronic illness, it will fluctuate over time, requiring continuous monitoring and an alteration of medication. However, the Tribunal finds that this condition, on the whole, is well managed with diet and medication and not having any functional impact. As such, nil points are awarded for this condition.
Hypertension and hypercholesterolemia
Mr Tanrikulu gave evidence that during the qualification period he was on medication for his hypertension and suffered from high cholesterol. His doctor is making him follow a strict diet for these conditions and he cannot eat any fat.
The Respondent accepts that Mr Tanrikulu’s hypertension and hypercholesterolemia were fully diagnosed at the qualification period relying upon the 2018 report of Dr Baglar.
However, the Respondent contended that the conditions were not fully treated or stabilised during the qualification period as the available medical evidence did not indicate what if any treatment Mr Tanrikulu was receiving for the conditions.
The Respondent contended that at the qualification period there was no evidence of the functional impact of Mr Tanrikulu’s hypertension and hypercholesterolemia and therefore nil points could be awarded.
The Tribunal finds that Mr Tanrikulu’s hypertension and hypercholesterolemia were fully diagnosed, treated and stabilised during the qualifying period and that, as a chronic illness, will fluctuate over time, requiring continuous monitoring and an alteration of medication. However, the Tribunal finds that the conditions, on the whole, are well managed with diet and medication and not having any functional impact. As such, nil points are awarded for these conditions.
IMPAIRMENT RATING
The Tribunal finds that Mr Tanrikulu has an overall impairment rating of 15 points comprising of 10 points allocated under Table 4 (Spinal Function) and 5 points under Table 1 (Functions requiring physical exertion and stamina). Therefore, during the qualifying period Mr Tanrikulu did not satisfy s 94(1)(b) of the Act.
DOES MR TANRIKULU HAVE A CONTINUING INABILITY TO WORK?
To qualify for the DSP, Mr Tanrikulu must not only satisfy the requirement that he has impairments that can be assigned 20 points or more under the Impairment Tables, he must also demonstrate that he has a continuing inability to work. Mr Tanrikulu would be considered to have a continuing inability to work if he has actively participated in a program of support within the meaning of section 94(3C) of the Act prior to his claim for DSP, and his impairment is of itself sufficient to prevent him from improving his capacity to prepare for, find or maintain work through continued participation in the program. A person with a severe impairment is not required to satisfy the Secretary that they have actively participated in a program of support. A person’s impairment is a severe impairment if it attracts 20 points or more under a single Impairment Table.
The Tribunal strictly applies the program of support requirement, finding that no power exists to dispense it with the operation of s 94(2)(aa) of the Act. It is irrelevant whether an applicant was aware of the requirement.
The POS Determination requires that an applicant for DSP must actively participate in the program for 18 months within the three years prior to the date of claim. As the Tribunal has not found that Mr Tanrikulu has a severe impairment that is assigned 20 points or more under a single Impairment Table, he is required to have participated in a program of support.
The Respondent contended Mr Tanrikulu did not satisfy s 94(2)(aa) of the Act during the qualification period, as his Centrelink records indicated that he had not participated nor commenced in a POS, and this was less than the required 18 months in accordance with requirements of paragraph 7(2) of the POS Determination. Further, the Respondent argued there was no evidence that Mr Tanrikulu had completed a POS that was less than 18 months (in accordance with paragraph 7(3)) or that his participation was terminated (in accordance with paragraph 7(4)).
The Tribunal finds that Mr Tanrikulu could not be exempted from the POS requirements in accordance with section 7(4) of the POS Determination as at the date of his claim, as he had not commenced participating in such a program.
The Respondent contended that apart from the medical certificate of Dr Shanmugam dated 15 December 2018 certifying the applicant unfit for work from 15 December 2018 to 11 March 2019, there was no other evidence addressing his ability to work. The Respondent argued that, as this certificate did not address what impairment prevented Mr Tanrikulu from doing any work and further did not state what prevents him from doing any work independently of a program of support, or undertaking a training activity, within the next two years as at the qualification period, it should be attributed little weight.
The Respondent contended that the Tribunal could not be satisfied that Mr Tanrikulu had a continuing inability to work during the qualification period.
The Tribunal did not concur with the contention advanced by the Respondent that the medical certificate of Dr Shanmugam dated 15 December 2018 should be attributed little weight as it did not state what prevents him from doing any work independently of a program of support, or undertaking a training activity, within the next two years as at the qualification period. To achieve the level of specificity the Respondent has contended is required from medical evidence to determine capacity for work, would have required Mr Tanrikulu to seek a report from an occupational physician. This type of report is out of the financial reach of individuals seeking to apply for the DSP and the Tribunal cannot accept that the object of the Act was to exclude individuals from being granted a DSP because they could not afford medico legal reports.
The Tribunal relies upon the Rules for applying the Impairment Tables at point 7:
Information that must be taken into account in applying the tables
(a)the information provided by the health professionals specified in the relevant tables: and
(b)any additional medical or work capacity information that may be available; and
(c)any information that is required to be taken into account under the Tables; including as specified in the introduction to each Table.
The Tribunal relies upon the medical evidence available to it to consider Mr Tanrikulu’s work capacity. The Tribunal considered the undated report from Abhi Kalia in which he opined that:
In summary, Ayhan injured his cervical spine and left shoulder during his MVA. Due to the combined chronic nature of his physical injuries as well as his psychological state, I do not believe he is capable of any form of employment.
Additionally, the Tribunal noted Dr Baglar’s report of 16 March 2020 which opined:
Because of his MCA Ayhan’s cognitive capacity is affected adversely and currently he’s referred to a Neuropsychiatrist and his first appointment is pending. He is unable to focus and maintain his concentration
The Tribunal noted that as no JCA had been conducted with Mr Tanrikulu for this DSP claim, Centrelink had made no assessment of Mr Tanrikulu’s work capacity. Previous JCAs conducted on Mr Tanrikulu in 2009 recommended a reduced work capacity for Mr Tanrikulu as his medical conditions will have an impact on his ability to perform physical work related tasks, but a mild to moderate impact on his ability to complete more sedentary tasks. Given the passage of time and the deterioration of Mr Tanrikulu’s condition and the available medical evidence the Tribunal can only surmise that Mr Tanrikulu has a continuing inability to work.

The Tribunal notes the often relied on authority in Muir and Secretary, Department of Employment and Workplace Relations [2005] AATA 902, where the Tribunal stated at [43]:
The Tribunal agrees with the contention of the respondent that it does not matter whether the work capacity assessor does or does not hold any relevant medical qualifications as the work capacity assessor performs his or her task on the basis of accepting the conclusions and findings of other medical personnel and then determines whether or not the person been assessed does or does not have the requisite work capacity within the meaning of section 94(1)(c) of the Act.
The task of the JCA is to base their determination on assessing the findings of medical professionals. As no JCA has been performed with Mr Tanrikulu for this DSP application, there was no JCA report which could be preferred. The JCA is generally preferred because the assessor has specialised knowledge and experience in “identifying barriers to employment, interventions, available programs and suitable occupations to determine a person’s impairment rating and work capacity”.
The Tribunal does not form a view on Mr Tanrikulu’s continuing inability to work during the qualification period.
CONCLUSION
Having carefully considered all the evidence, the Tribunal finds that at the time of his DSP application of 11 September 2018, Mr Tanrikulu, did not have the required 20 impairment points to satisfy s 94(1)(b) of the Act nor had he commenced a POS. Without having a severe impairment, Mr Tanrikulu cannot have met all the requirements to be eligible for the DSP and therefore the application cannot succeed.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 110 (one hundred and ten) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke AO, Member

[sgd].......................................
Associate
Dated: 17 December 2020

Date of hearing:

31 August 2020

Date of Final Submission: 22 October 2020

Applicant: By telephone

Advocate for the Respondent:
Ms Peta Heffernan

Solicitors for the Respondent: Australian Government Solicitor

[2020] AATA 5763

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Date of hearing:	31 August 2020
Date of Final Submission:	22 October 2020
Applicant:	By telephone
Advocate for the Respondent:	Ms Peta Heffernan
Solicitors for the Respondent:	Australian Government Solicitor