Uyanik and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2011] AATA 648

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 648

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/1595

GENERAL ADMINISTRATIVE DIVISION		)
Re		Zafer Uyanik

Applicant

And Secretary, Dept of Families, Housing, Community Services & Indigenous Affairs

Respondent

DECISION

Tribunal Ms N Isenberg, Senior Member

Date16 September 2011

PlaceSydney

Decision The decision under review is affirmed.

................[sgd].......................

Ms N Isenberg
  Senior Member

CATCHWORDS

SOCIAL SECURITY - Applicant's claim for disability support pension rejected.  Applicant not qualified for DSP on date of claim or within 13 weeks of lodging claim. Medical conditions in existence prior to Applicant becoming a permanent resident. Impairment rating less than 20 points.  Undertaking training activity for 15 hours per week - no continuing inability to work.

LEGISLATION

Social Security Act 1991, section 94

Social Security (Administration) Act 1999, sections 41, 42.

REASONS FOR DECISION

16 September 2011 Ms N Isenberg, Senior Member   

DECISION UNDER REVIEW

1. On 12 April 2011 the Social Security Appeals Tribunal (“SSAT”) affirmed Centrelink’s decision to reject Mr Uyanik’s claim for disability support pension (“DSP”), lodged 22 December 2010, as Mr Uyanik did not satisfy the medical qualifications, work capacity or residential qualification for DSP under section 94 of the Social Security Act 1991 (“SSA”).

ISSUE BEFORE THE TRIBUNAL

2.      The issue before this Tribunal is whether Mr Uyanik was qualified to receive DSP in the period 22 December 2010 to 23 March 2011.  The Tribunal must consider whether Mr Uyanik has:

(a)a physical, intellectual or psychiatric impairment; and

(b)a diagnosed condition that has been investigated, treated and stabilised and is likely to continue for two years; and

(c)an impairment rating of at least 20 points ascribed under the Impairment Tables contained in Schedule 1B SSA; and

(d)a continuing inability to work because of the impairment.

LEGISLATION

3.      The Social Security (Administration) Act 1999 provides that qualification and impairment ratings must be determined as at the date of claim or within 13 weeks of lodging a claim.    

4. Section 94 SSA sets out the qualification criteria for DSP and states inter alia:

“(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;

(ii)  the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and

(d)  …

(e)  the person either:

(i)  is an Australian resident at the time when the person first satisfies paragraph (c); or

(ii)  has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or…”

BACKGROUND

5.      The Applicant, Mr Uyanik, was born in Turkey on 15 October 1974 and arrived in Australia on 26 July 2006 on a visa subclass 309 Spouse (Provisional).  He was injured in a workplace accident in November 2007.  As a result of the accident, he sustained a fractured left rib and an injury to his left ear and his neck.

6.      On 14 December 2010, Mr Uyanik was granted a visa subclass 100 (Partner).  On 22 December 2010, he lodged a claim for DSP.  The conditions claimed by Mr Uyanik were anxiety/depression, back pain, neck pain, and stomach problems.  In support of his claim Mr Uyanik provided a medical report which noted his conditions as severe depression and anxiety “for about 4 years”; chronic neck and back pain “for about three years”; and gastritis which was reported as having minimal impact on his ability to function.

7.      Other supporting documents provided by Mr Uyanik included a MRI of his cervical spine dated 18 November 2008 which showed disc degenerative disease at C5/6 and C6/7; MRI brain scan dated 18 November 2008 which demonstrated no abnormalities; MRI lumbar spine report of 17 December 2008 showing a disc bulge at L5/S1; an undated audiology report of Dr B Williams; a letter from lawyers dated 21 January 2009, asserting a 23% whole person impairment for industrial deafness.

8. On 4 January 2011, Mr Uyanik’s claim for DSP was rejected on the basis he was not residentially qualified in accordance with section 94(1)(e) of the Act.

9.      A job capacity assessment report dated 11 January 2011 assessed Mr Uyanik’s conditions of depression and spinal disorder as fully diagnosed, treated and stabilised.  His depression was assigned an impairment rating of 20 points under Table 6 and a rating of Nil under Table 5.1 was assigned for his back condition.  His work capacity was assessed at 0-7 hours per week until 21 March 2011, increasing to 8-14 hours with intervention.

10.     On 13 January 2011 Mr Uyanik was advised by Centrelink that his claim had been reconsidered and affirmed on the basis that he did not meet the residency requirements, that is, he had not resided in Australia for a period of 10 years.  An authorised review officer affirmed the decision to reject Mr Uyanik’s claim for DSP, finding the conditions which prevented him being able to work were in existence prior to him becoming a permanent resident on 14 December 2010.    

11.     Mr Uyanik lodged an application for review with the SSAT.  The decision to reject his claim for DSP was affirmed on 12 April 2011.  The SSAT assigned Nil points under Table 20 for his back pain, as no Range of Movement (“ROM”) test had been conducted.  It also assigned a Nil rating under Table 6 for his depression, finding that he has never seen a psychiatrist, is able to attend TAFE classes and study.

12. Further, the SSAT found Mr Uyanik did not satisfy s94(1)(c) SSA, as he was undertaking a training activity for more than 15 hours per week; and also that he was not residentially qualified as he did not satisfy s94(1)(e)(i) or (ii) SSA.

CONSIDERATION

13. The Respondent conceded that during the relevant period, Mr Uyanik’s conditions of anxiety/depression, neck pain, back pain, and stomach problem were ‘physical, intellectual or psychiatric impairments’ within the meaning of s 94(1)(a) SSA, however contended that his conditions do not attract an impairment rating of 20 points or more under the Impairment Tables.

14. The Introduction to Schedule 1B of the Act provides that a condition must be permanent, that is, it must be fully diagnosed, treated and stabilised before any impairment rating can be assigned to it.

15.     Mr Uyanik was asked to describe his daily life and how his conditions would impact upon his day to day activities.  In describing his daily life Mr Uyanik said that he does not eat breakfast or lunch because he is in too much pain.  He might just sit around for hours or will play on the computer for about an hour reading health-related information and communicating with his mother and friends in Turkey.  He would then watch TV for three or four hours.  He might play his guitar for one to two hours – an activity he really enjoys.  Until     he played in a restaurant and only stopped when ...

16.     He attends English language classes at TAFE three days a week but has to leave after an hour or two.  He said he is unable to concentrate for the whole of the three hour session.  Earlier this year he was attending five days a week but has now reduced to part time.

17.     Mr Uyanik stated if he is bored he might get into the car and go out but he really “didn’t know why”.  In cross-examination, however, he said that at least every second day he drives from his home in Bonnyrigg to Eastlakes – a distance of about 37 kms.  He said his post office box is located in Eastlakes, as is his Centrelink office and a Turkish supermarket.  He has applied for Housing Commission accommodation there.  The trip takes him about 45 mins if there is traffic and he finds that frustrating.  There is an old gentleman friend with whom he often spends an hour.  Every couple of days he might drive his friend to Auburn for a meal, take him back to Eastlakes and then drive home.  He has also had girlfriends in that area.

Depression and Anxiety

18.      Mr Uyanik identified his depression as his major concern.  He told me that he suffers from loss of memory, aggression and he is unable to tolerate enclosed areas.  He said he has experienced two or three episodes of panic attacks requiring attendance at hospital emergency department where he was placed on a heart monitor.  Since his application for DSP was refused he stated that he has suffered even more stress and that his condition has worsened in the last month.  He feels he is “going to die” and he is very unhappy with his life.  He said he has become withdrawn from people.

19.     Mr Uyanik said he takes Lovan tablets, and had taken Zoloft in the past.  He is shortly to see a psychiatrist for the first time.  He is unable to sleep he said, until about 5 am and is awake again at 8am.  He takes sleeping tablets but is afraid of dying in his sleep.

20.     He saw a psychologist in February/ March 2007 on a monthly basis, or sometimes fortnightly if necessary.  While she was overseas for 2-3 months he was ‘unwell’ and felt unable to cope. 

21.     At the hearing Mr Uyanik provided a report from Ms Tungandame of Auburn Psychological and Consultancy Service dated 24 December 2010 and a report dated 17 June 2011 from Ms Aytugrul, bilingual councillor.   Ms Tungandame wrote that during her initial consultations with Mr Uyanik in February and March 2007 he had exhibited a range of symptoms which were consistent with acute stress disorder caused by ‘family violence’.  She also considered him to have developed major suppressive disorder and generalised anxiety disorder.  She wrote that she had seen him during 2010 on several occasions and in July 2010 he had reported increasing symptoms of severe anxiety while his mood had been predominantly very depressed.  Ms Aytugrul has provided some counselling to Mr Uyanik and she considered him to be suffering from symptoms of panic disorder, obsessive-compulsive disorder, associated with moderate depressive episode. 

22.     Mr Uyanik said that his condition had worsened since he broke up with his most recent girlfriend in July 2011.  He had found her supportive.  He had been going out with her at the time he had lodged his claim.  He would often take her out for dinner or to the movies.  As to the relapse in July 2010 referred to by Ms Tungandame, he said that this coincided with the breakup of a relationship.

23.     He said that about a month ago he had a panic attack and went to Randwick hospital but there was a delay in seeing a doctor so he “ran away” after he was given “11 tablets”.  He was afraid to drive but did so anyway. He was pulled over by the police who followed him to the hospital.  Overall, I found Mr Uyanik’s account of a panic attack to be implausible.

24.     Dr Mostaphazadeh, Mr Uyanik’s GP provided a report, dated 21 December 2010, in which he confirmed Mr Uyanik had been diagnosed with severe depression and anxiety, with the date of onset stated as “for about 4 years”.  Symptoms were listed as family issues/visa problems, depressed mood, anxiety attack, low motivation.  His past, current and future treatment for the condition was medication, physio-counselling on a regular basis.  The condition was expected to persist for more than two years and expected to fluctuate.

25. On 11 January 2011, a job capacity assessment was conducted by a registered nurse, who assessed Mr Uyanik as fully diagnosed, treated and stabilised, and assigned an impairment rating of 20 points under Table 6 in Schedule 1B SSA. That table provides as follows:

Rating   Criteria

NIL Mild but regular symptoms which tend to cause subjective distress.  On most occasions able to distract themselves from this distress.  Minimal interference with function in everyday situations.  Exacerbation of symptoms may cause occasional days off work.  (eg. There may be some loss of interest in activities previously enjoyed.  There may be occasional friction with family, colleagues or friends)  Medical therapy or some supportive treatment from treating doctor may be required.

TENModerate and regular symptoms and generally functioning with some difficulty.  (eg. noticeable reduction in social contacts or recreational activities, or the beginnings of some interference with interpersonal or workplace relationships).  May have received psychiatric treatment which has stabilised the condition.  Minor effects on work attendance and/or ability to work but the impairment would not prevent full-time work.  (eg. short periods of absence from work).

TWENTY Psychiatric illness or disorder with either serious symptomatology OR impairment in functioning that requires treatment by a psychiatrist (eg. frequent suicidal ideation, severe obsessional rituals, frequent severe anxiety attacks, serious anti-social behaviour, diagnosed psychotic illness with continuing symptoms).  There is significant interference with interpersonal or workplace relationships with serious disruption of work attendance or ability to work.     …”

26.     There was no dispute that Mr Uyanik’s anxiety and depression was fully diagnosed treated and stabilised as at the qualification period, 22 December 2010 to 23 March 2011, and it is therefore able to be rated.

27.     In cross examination Mr Uyanik acknowledged that he was able to maintain relationships; he was able to drive relatively long distances to do his shopping and socialise; attend TAFE classes; play guitar and use his computer.  He has received treatment from a counsellor and psychologist, but he had not received treatment from a psychiatrist.  In evidence the Mr Uyanik stated he had an appointment scheduled with a psychiatrist in early September 2011.  Dr Mostaphazadeh’s report listed the details of how the condition impacted on Mr Uyanik’s ability to function as low motivation, low concentration and feeling tired.  He did not note any of the serious symptomatology required to attain 20 impairment points, that is, frequent suicidal ideation, severe obsessional rituals, frequent severe anxiety attacks, or serious anti-social behaviour.

28.      Further, in my view Mr Uyanik’s condition also does not attract a rating of 10 points. He has received no psychiatric treatment and, up until recently, was able to attend full-time studies.  What is more, he is able to spend long periods on most days driving long distances in order to socialise.  I therefore consider that the appropriate rating during the relevant period was nil points. 

Chronic back and neck pain

29.      In his report of 21 December 2010, Dr Mostaphazadeh noted that Mr Uyanik had back and neck pain for “about 3 years” and stated the pain was aggravated by “trigger factors like lifting” and that he was treated with analgesics and physiotherapy.

30.     Much of Mr Uyanik’s evidence was given in the context of his complaint about his doctor at the time of his workplace injury.  His doctor had thought some of his complaints were psychosomatic, but, according to Mr Uyanik, later imaging showed he had suffered back and neck injuries.  He said that, as a result he had lost his worker’s compensation case because of the doctor‘s negligence.  According to his evidence before the SSAT however, he had been paid some workers compensation.  He said that he had rejected a settlement offer and had subsequently lost the substantive case.

31.      Mr Uyanik provided a copy of an MRI cervical scan carried out in November 2008 and a MRI lumbar spine scan conducted in December 2008.  The cervical spine scan demonstrated disc degenerative disease at C5/6 and C6/7, with no nerve root compression.  Similarly, the scan of the lumbar spine demonstrated a degenerative bulge at L5/S1, with no nerve root compression.

32.     He said an operation was expected on his back and neck but he did not know when.  No medical evidence was provided to support his contention that surgical intervention was required.  He said he had had only five sessions of the physiotherapy in each of the last two years because he would have to pay for additional sessions.  He sometimes has a massage.  He stated he takes medication for the pain and that his neck pain results in severe headaches.  His back pain is severe about once a month.  He is unable to stand for more than 10 minutes and can only sit for 45 mins to 1 hour.  He feels worse after carrying something.  He identified walking and sometimes sitting in the car, as triggers for the pain, in which case he will pull over and walk around.  About once a month he says he has an episode after showering and for a week or so is “like a paralysed person”.  He said he has got used to the pain, although it is worse now than when he lodged his claim.  Despite this he has not been referred to a specialist for orthopaedic problems.

33.     The Job Capacity Assessor assigned Nil points under Table 5.1.  Spinal Function, noting that Mr Uyanik “did not appear to be in discomfort during the assessment, client was turn [sic] and bending to pick up his x-rays from the floor.  A normal range of movement was observed”.  I do not regard this as formal ROM testing.  In those circumstances no rating is available under that Table, which requires an assessment of ROM.

34.     The SSAT decided to consider these conditions using Table 20. Miscellaneous conditions, and assigned an impairment rating of Nil points under Table 20, as follows:

Rating   Criteria

NIL                  Controlled hypertension

Malignancy in remission with a good to fair prognosis

Minor symptoms which are easily tolerated and have no appreciable effect on ability to work. …”

35.     In coming to that view the SSAT noted “While indicating his areas of pain he demonstrated full range of movement of his back and neck.  He sat comfortably for over one hour”.  Before me, Mr Uyanik did walk around briefly but otherwise did not appear to be in inconvenienced by back or neck pain throughout the hearing.  More importantly I observe that he is able to spend at least an hour and a half travelling in his car most days.

36.      I consider that Table 20 is the appropriate table for assessing Mr Uyanik’s back and neck pain, because no formal ROM test has been conducted.  I also find that the appropriate rating for Mr Uyanik’s condition is Nil points under Table 20.

Other conditions

37.      When completing his claim for DSP, Mr Uyanik listed ‘stomach problem’ as one of his conditions.  Dr Mostaphazadeh, in his report of 21 December 2010, noted gastritis as a condition having a minimal or limited impact and recorded that the condition was treated with medication, and was expected to significantly improve.  The Job Capacity Assessor considered the condition to be temporary.  The SSAT recorded that Mr Uyanik did not confirm he had epigastric pain.  Before me he said that following the workplace injury he had taken strong medication and that had caused stomach problems.  For the last 2-3 years he has taken medication for his stomach. 

38.     Only conditions which have been investigated, treated and stabilised can be assessed.  I consider this condition cannot be assigned an impairment rating as there is insufficient evidence to assess the condition.  Even if I were to accept the diagnosis of Dr Mostaphazadeh and the treatment to which Mr Uyanik referred as indicative of it having been investigated, treated and stabilised, it would not attract a rating of more than Nil in accordance with  Table 11.1:

Rating   Criteria

NIL Peptic ulcer/oesophagitis/liver disease: mild symptoms despite optimal treatment.  …”

39.     Mr Uyanik did not include hearing loss in his claim for DSP, nor was it listed by Dr Mostaphazadeh.  The Job Capacity Assessor noted that the applicant “was responding in normal tone and speech and did not appear to have a hearing loss”.  There does not appear to have been an audiogram and I do not accept the solicitor’s letter asserting a percentage hearing loss as adequate evidence.  In the absence of evidence the condition cannot be considered as permanent.  In any event, I am not satisfied that Mr Uyanik’s hearing loss has any significant functional impact on his functioning. 

40.     At the hearing Mr Uyanik mentioned that from July 2010 he had chest pain from time to time but on testing, his heart was found to be normal.  Now he also has pain in his face and throat.  None of these complaints can be said to be related to conditions which have been fully diagnosed, treated and stabilised.

Total impairment rating

41. Based on the available medical evidence, Mr Uyanik has a total impairment rating of Nil points. He therefore does not have an impairment rating of at least 20 impairment points as at the claim period 22 December 2010 to 23 March 2011, and therefore does not satisfy the criteria in s94(1)(b) SSA.

42. Having come to that view it was unnecessary for me to consider whether Mr Uyanik had a continuing inability to work (s94(1)(c) SSA).

DECISION

43.     The Administrative Appeals Tribunal affirms the decision under review.

I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member.

Signed:  ………[sgd]…………..………
               Associate

Date of Decision  16 September 2011
Date of Hearing  15 August 2011
Representative for Applicant  Mr Zafer Uyanik (self)
Representative for the Respondent:       Centrelink Advocacy Branch