Ulker and Secretary, Department of Family and Community Services

[2004] AATA 749

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 749

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/1568

GENERAL ADMINISTRATIVE DIVISION		)
Re		DURDU ULKER

Applicant

And Secretary, Department of Family and Community Services

Respondent

DECISION

Tribunal Dr MEC Thorpe, Member

Date19 July 2004

PlaceSydney

Decision The decision under review is affirmed

[Sgd] Dr MEC Thorpe, Member

CATCHWORDS

SOCIAL SECURITY - application for disability support pension - neck, back and knee pain - parties agree that Applicant's disabilities amount to 20 impairment points - Applicant does not have a continuing inability to work 30 hours a week in the next 2 years due to disability - decision affirmed

Social Security Act 1901 section 94(1)(a) and 94(1)(b)

REASONS FOR DECISION

19 July 2004 Dr MEC Thorpe, Member  

1.      This is an application to review a decision of the Social Security Appeals Tribunal (“SSAT”) on 11 September 2003 to affirm the decision of a delegate of the Secretary, Department of Family and Community Services (“the Respondent”) on 10 April 2003 to reject Mr Durdu Ulker’s (“the Applicant”) claim for Disability Support Pension (“DSP”).

2. At the hearing, the Applicant gave oral evidence and was represented by Ms Kathy Klonis of Klonis & Co. Solicitors. The Respondent was represented by Ms Susan Mantaring an advocate of the Centrelink Service Recovery Team. The Tribunal was assisted by Mrs Bevan, an interpreter in the Turkish language. The Tribunal had before it the documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (“the T documents”), as well as both parties’ Statement of Facts and Contentions, a letter from Dr Mahoney marked A1, a medical assessment of Dr Stewart marked R1, a radiological report of Dr Glasson marked R3, a statement of the Applicant marked R4, a handwritten medical report of Dr Anspal marked R5 and a medical assessment report marked R6.

BACKGROUND

3.      The Applicant was born on 15 March 1947 in Turkey. In 1995 he arrived in Australia at the age of 48 years.  Prior to his arrival in Australia, the Applicant worked as a farmer in Turkey. The Applicant told the Tribunal that he has no trade qualifications and has completed two years of military service.  The Applicant has four adult children who are no longer dependent.

4.      After arriving in Australia, the Applicant began employment with Veluca Ltd in around 1997.  He told the Tribunal that he worked for Veluca Ltd for five years and his duties included packing empty boxes. The Applicant ceased employment with Veluca Ltd in April 2001 due to discomfort caused by complications following a haemorrhoid procedure and has not worked since that time.

5.      The Applicant lodged a claim for DSP on 24 February 2003. In his application he specified his injuries as pains in neck, knees and back.  On 10 April 2003 following a Health Services Australia (“HSA”) medical assessment the Applicant’s DSP claim was rejected.  On 21 July 2003, an Authorised Review Officer (“ARO”) affirmed the decision. On 30 July 2003, the Applicant applied for review to the SSAT and on 11 September 2003, the SSAT affirmed the decision. On 30 September 2003, the Applicant applied for review to this Tribunal.

LEGISLATION

6. The relevant legislation is section 94(1) and 94(2) of the Social Security Act 1991 (“the Act”) as follows:

“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 from undertaking educational or vocational training or on-the-job training during the next 2 years; or

(ii)if the impairment does not prevent the person from undertaking educational or vocational training or on-the-job training—such training is unlikely (because of the impairment) to enable the person to do any work within the next 2 years”

ISSUES

7.      The issues before the Tribunal are:

(a)Whether the Applicant suffers from a physical, intellectual or psychiatric impairment; and if so

(b)Whether the impairment is of 20 points or more under the Impairment Tables set out at Schedule 1B of the Act; and if so

(c)Whether the Applicant has a continuing inability to work.

8.      At the outset, the parties informed the Tribunal that they had reached an agreement that the Applicant had impairments rated at 20 points or more under the Impairment Tables.  Therefore, the only outstanding issue to determine is whether the Applicant has a continuing inability to work.

EVIDENCE

oral evidence

9.      The Applicant told the Tribunal that he experiences very strong pains in his neck, knees and back. He said that he takes pills including Panadol and panamax continuously and sees specialists Dr. Morton and Dr Mahoney.

10.     The Applicant said that he experiences headaches “all the time” caused by his neck and back pain and that he is unable to walk for long periods due to his knee pain.  The Applicant said that he does “nothing” during the day and that he can only walk for 15 minutes at a time due to the pain.

11.     In cross examination, Ms Mantaring for the Respondent referred to Dr Borton’s report (T4 p.11) which makes no mention of knee pain and asked the Applicant whether his knee pain had occurred recently or whether it was present at the time of the claim. The Applicant told the Tribunal that he had knee pain at the time of the claim and offered no reason as to why this did not appear in Dr Borton’s report. 

12.     The Applicant told the Tribunal in cross examination that he has not been referred to a pain clinic. The Applicant said that he visited a physiotherapist located at Eastlakes twice in 2002 but did not persevere because he felt uncomfortable and did not notice any improvement. He said that the pills that he takes for pain bring him relief.

13.     The Applicant said that in a week he will have two or three bad days when the pain is very strong. On these days he wakes up in pain and does “nothing”. The Applicant said on the other days of the week he is still in pain although the pain in not as strong as on the bad days.

14.     On a normal day the Applicant’s wife helps him with showering and dressing. He is able to put on his own shoes and socks but is unable to do up laces. He manages to put on his socks if he sits on the bed and lifts up his leg.  The Applicant said he must be assisted by his wife or son when travelling on public transport. The Applicant said that he can not drive and that he never catches public transport alone.

15.     The Applicant said that he can only sit for one or two hours at most and every half hour gets up for a coffee.  He said that he watches TV sometimes but that he can not sit for more than half an hour due to headaches. It should be noted that at this point in the hearing that Applicant had been sitting for 40 minutes without a break.

16.     The Applicant, in re-examination stated that he left work in 2000 due to neck and back pain.

17.     The Applicant stated that he has never attempted English lessons or any other type of course.  He said that he cannot do an English course as he is unable to sit for long periods due to headaches.  He said that he can not work as a kitchen hand in a kebab shop as he can’t bend or stand up for a long time.  The Applicant said that his back and neck pain prevent him from doing light assembly type work as the pain gives him headaches and he is unable to bend because of his back pain.

MEDICAL EVIDENCE

18.     Dr Mahony, on 17 March 2004 (Ex. A1), opined that Mr Ulker had developed symptoms referable to cervical strain in association with degenerative changes and he considered the headaches to be referred from the neck. Dr Mahony also opined Mr Ulker had symptoms referable to a lumbar disc lesion at the L4/5 level with nerve root irritation. Dr Mahony included the MRI of the lumbar spine dated 27 May 2003. Dr Mahony considered Mr Ulker unfit for work as far as his orthopaedic condition was concerned. In neither this report nor an earlier undated report (T3/9) does Dr Mahony provide any other details or observations.

19.     Dr Michael Stewart, Medical Assessor 31 May 2004 (Ex R1) reported that Mr Ulker ceased work in 2001 due to back and neck pain. Dr Stewart considered that given the previously reported symptoms of pain were present it was not unreasonable to increase the rating under table 5.2 to 10 points for loss of ¼ ROM and pain present with many activities. Dr Stewart did not consider this in itself precluded light activities. He would think that with appropriate management including postural awareness / back education, Mr Ulker could manage light, full time work that did not include significant bending / lifting / carrying.

20.     Dr Stewart gave an impairment rating of 20.

21.     Earlier Dr Anspal, on 25 September 2001 (Ex R5), in a hand written report stated that Mr Ulker suffered from a fistula in ano and cervical spondylitis.  He said he was fit for light duties which did not involve prolonged standing and that the Applicant should avoid a lot of neck movements, for example extending the neck.

22.     Dr Stewart had performed an earlier medical assessment on 26 November 2001 (Ex R6) where he reported an abscess complicating haemorrhoid surgery but that this anal condition should not cause prolonged absence from work. He reported the CT scan of the neck was normal (T9/54) but that the neck pain had not been successfully treated but with rheumatological review and appropriate therapy Mr Ulker should be able to perform light to moderate work. In this assessment there was only reference to the neck and haemorrhoids with no reference to the back.

23.     Dr Keen, Medical Adviser on 10 June 2003 (T18) assessed Mr Ulker for chronic neck and low back pain. He reported cervical ROM ½, lumbar ROM ¼, no neurological signs. He considered Mr Ulker fit for light work.

24.     His local doctor Dr Borton whom he had seen twice in the past 12 months diagnosed Mr Ulker as having cervical spondylosis and neuralgic lumbar spondylosis, as well as haemorrhoids and chronic indigestion. He prescribed NSAIDs and analgesics.

25.     An MRI of the lumbar spine was performed on 27 May 2003 (T16) and the conclusion was “Broad based protrusion is seen at the L 4/5 level with focal annular tear. The thecal sac is slightly indented on the right and the L5 nerve root is probably a little displaced also”. Dr Mahony in his report (A1) makes reference to L5 nerve root irritation but there is no description of any symptoms or signs of L5 nerve root irritation in his report.

CONSIDERATION AND DECISION

26. The issue to be determined by this Tribunal is whether the Applicant has a continuing inability to work. The Tribunal must thus decide whether the Applicant can work or be retrained within the next two years or whether retraining is unlikely to enable him to work within the next two years. Work is defined at section 94(5) of the Act as work of at least 30 hours a week that exists anywhere in Australia.

27.     It has been accepted by the Respondent that the Applicant is unfit for manual process work of the type performed at Veluca prior to 2001.  The Tribunal accepts that the Applicant is unfit for this type of work due to his neck and back pain. However, the Applicant has not established that he is unfit for more sedentary light level work within the next two years.

28.     After consideration of the various doctors reports the Tribunal finds that the Applicant is not unfit for light sedentary work within the next two years.  In coming to this conclusion, The Tribunal places more weight on the HSA doctor’s report than that of the Applicant’s doctor. The HSA doctor’s report states that the Applicant is capable of doing light duties.  The HSA doctor also reported that at the time of examination (T6, f.40), the Applicant was mobile, had a normal gait and no difficulty with transfer and was able to squat.  It should also be noted that there is no radiological evidence to show the extent of the Applicant’s neck pain. 

29.     However, it must be determined whether the Applicant is capable of working 30 hours per week.  The Applicant told the Tribunal that he suffers severe pain two to three days a week. However, the Applicant admitted in oral evidence that his pain is not severe the remaining four to five days a week. Essentially, the Applicant has both good and bad days. The Tribunal finds that the evidence is not sufficient in establishing that the Applicant is not capable of working 30 hours per week. The Tribunal finds that the Applicant is capable of sedentary light sedentary work four to five days a week, the days when the pain is not severe. 

30.     The Respondent submitted and the Tribunal agrees that the Applicant is suited to doing light duties with no lifting of heavy weight with a focus on postural awareness, back education, and work not involving bending or lifting four to five days a week. Therefore, the Applicant does not have a continuing inability to work 30 hours per week over the next two years.

31. It should be noted that the Applicant’s lack of English language skills, mature age, and lack of specialised skills all contribute to his difficulties in attaining employment. However, the in order for the Applicant to satisfy the criteria set out at section 94(2) of the Act, the Applicant’s disabilities alone must prevent him from working 30 hours per week. The Tribunal finds the Applicant’s disability alone does not prevent him from working 30 hours per week.

32.     The decision under review is affirmed.

I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Dr MEC Thorpe. Member

Signed:          A. Krilis
  Associate

Date/s of Hearing  9 June 2004
Date of Decision  19 July 2004
Solicitor for the Applicant          Ms Kathy Klonis
Advocate for the Respondent   Ms Susan Mantaring