Vasco and Secretary Department of Employment and Workplace Relations
[2005] AATA 715
•27 July 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 715
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/1586
GENERAL ADMINISTRATIVE DIVISION ) Re JOSE ANTONIO VASCO Applicant
And
SECRETARY DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Mr I Way, Member Date27 July 2005
PlaceSydney
Decision The decision under review is affirmed.
[sgd] Mr I Way Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – decision under review affirmed – injuries to both shoulders, left knee and back
Social Security Act 1991 section 94(1) (a), (b) and (c) Schedule 1B, Schedule 2, Part 2
Social Security (Administration) Act 1999
REASONS FOR DECISION
27 July 2005 Mr I Way, Member 1. This is an application by Jose Antonio Vasco for review of a decision of the Social Security Appeals Tribunal (“the SSAT”), dated 2 November 2004, that affirmed a Centrelink’s decision to reject Mr Vasco’s claim for Disability Support Pension (“DSP”).
2. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T25) and other documentary evidence as follows:
· Report of Dr P Teychenne dated 6 March 1986 - Exhibit A1
· Report of Dr P Teychenne undated - Exhibit A2
· Report of Dr L Kuo, orthopaedic surgeon dated 27 October 2004 - Exhibit A3
· Patient history Dr Avramidis, unsigned dated 10 June 2005 - Exhibit A4
· Ultrasound of Applicant’s left foot dated 5 November 2004 by Dr King-Exhibit A5
· Respondent’s Statement of Facts and Contentions dated 1July 2005 –Exhibit R1
3. Mr Vasco was self represented and gave oral evidence through Mrs M Jennings, an interpreter in the Spanish language. The Respondent was represented by Mr G Lozynsky.
BACKGROUND FACTS
4. There is no dispute about the background facts in this matter and in view of this, and on the material before it, the Tribunal finds as follows:
(a) Mr Vasco was born on 24 April 1945 in Equador and first arrived in Australia in January 1971.
(b) Mr Vasco lodged a claim for DSP on 20 January 2004 claiming to suffer from injuries in both shoulders and left knee and from a bad back.
(c) On 24 March 2004 a delegate of the Secretary rejected Mr Vasco’s claim for DSP.
(d) After receipt of further medical evidence, the original decision maker, on reconsideration of Mr Vasco’s claim, determined on 4 August 2004, that the original decision was correct.
5. Mr Vasco requested a review of this decision on 27 August 2004 and an Authorised Review Officer (“ARO”) affirmed the original decision on 30 August 2004.
6. Mr Vasco lodged an appeal with the SSAT on 28 September 2004 and the ensuing SSAT decision is the subject of this appeal.
ISSUES AND LEGISLATIVE FRAMEWORK
7. This matter is to be determined within the provisions of the Social Security Act 1991 (“the Act”) and the Social Security (Administration) Act1999 (“the Admin Act”).
8. The crucial issue in this matter is whether Mr Vasco suffers from physical or psychiatric impairments such that his impairment, pursuant to section 94 of the Act, is of 20 points or more and he has a continuing inability to work.
9.Section 94 of the Act relevantly provides:
“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;
(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) the person has turned 16; and
(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
(iii) is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:
(A) is not an Australian resident; and
(B) is a dependent child of an Australian resident;
and the person becomes an Australian resident while a dependent child of an Australian resident.
Note 1: For Australian resident, qualifying Australian residence and qualifying residence exemption see section 7.
Note 2: for Impairment Tables see section 23(1) and Schedule 1B.
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.
Note: For work see subsection (5).
94(3) In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a) the availability to the person of educational or vocational training or on-the-job training; or
(b) if subsection (4) does not apply to the person—the availability to the person of work in the person's locally accessible labour market.
94(4) For the purposes of subparagraph (2)(b)(ii), if a person has turned 55, the Secretary may, in considering whether educational or vocational training is likely to enable the person to do work, have regard to the likely availability to the person of work in the person's locally accessible labour market.
94(5) In this section:
educational or vocational training does not include a program designed specifically for people with physical, intellectual or psychiatric impairments.
on-the-job training does not include a program designed specifically for people with physical, intellectual or psychiatric impairments.
work means work:
(a) that is for at least 30 hours per week at award wages or above; and
(b) that exists in Australia, even if not within the person's locally accessible labour market”.
10. The Admin Act relevantly provides, in accordance with Schedule 2, Part 2, Section 4, that the Applicant must be qualified for DSP at the date of the claim or become qualified within 13 weeks thereafter. As Mr Vasco’s claim was lodged on 20 January 2004, the relevant period for consideration of this matter is 20 January 2004 to 20 April 2004.
APPLICANT’S EVIDENCE AND SUBMISSIONS
11. The Applicant told the Tribunal that he had electrical/mechanical trade qualifications from Equador and that he had worked in those trades after arriving in Australia in 1971. He said he had also gained qualifications in mechanical diesel engineering after arriving in Australia and furthermore had attained skills as a computer technician. From 1971 to when he ceased work in June 2003, Mr Vasco said he had worked in his trade, for some 11 or so different firms and during that time had suffered a number of work accidents. In particular, Mr Vasco told the Tribunal about three accidents, one in about 1972 when a rivet was accidentally fired into his left knee causing him to be hospitalised for three weeks and to be off work for three months; one in 1981 when he was lifting a truck cabin and hurt his back, his injury requiring hospitalisation for one week and traction, causing him to be off work for some time; and the third accident in about March 2000 while working with Omega Smeg when he tripped and fell, injuring his shoulders and knee. In respect of this last injury he said he was referred to a specialist, Dr Patwardhan, and an Orthopaedic Surgeon, Dr Kuo. He said he was prescribed painkillers, underwent physiotherapy and that Dr Kuo wanted to undertake a fusion operation on his back, however he did not proceed with that because on the one hand his claim for compensation had not been accepted and on the other hand the advice of his GP was not to undergo an operation because of his age and the likelihood that the operation would not be very successful.
12. The Applicant’s evidence in respect to work activities after the accident in 2002 was somewhat confused, however it would appear that he initially had a period off work for some two months, then returned to light duties and subsequently had another period off work for some three months before, once again returning to work on light duties. He said his light duty work was answering the phone and responding to customer’s enquiries about technical aspects of equipment and appliances sold by Omega Smeg. In any event, he left Omega Smeg on 30 June 2003 as he was unable to take up his full duties and he has not worked since. He told the Tribunal that he is currently receiving Newstart Allowance.
13. When asked to describe the medical treatment he was receiving during the relevant period and the effects on him as a result of his claimed impairments, the Applicant told the Tribunal he was taking painkillers and anti-inflammatory pills, three tablets daily, and that while the anti-inflammatory medication was helpful, the pain in his back was not really relieved. He said that after his back injury in 1981, he had been able to exercise to the point where his back did not preclude him from working but after his fall in 2000 he had to cease exercising as his back got worse again.
14. In respect of conditions further to those set out in his claim for DSP, the Applicant referred to left hip pain, a left foot condition, neck pain and anxiety and depression.
15. When asked to describe where he was experiencing pain, the Applicant said he suffered pain at the top of his upper arms where they join his shoulders; in his upper back behind his shoulders; in his lower back at and just below his waist, in his left hip, in his left foot; and in the right upper side of his left knee just above the knee cap.
16. It was the Applicant’s evidence that he was single, had never married or had children and lived alone on the fourth floor of a block of units. He said he walked up and down the stairs to get to his unit, he is able to attend to his own personal hygiene and carried out normal daily functions including cleaning his unit. He said he took his washing to the laundromat where it was handled by an attendant, that he owned a car and drove the car to do his shopping every few days, could travel on public transport (and came to the hearing by bus) and recently he had visited Equador, the flight taking about 16 hours. He said that there were no special arrangements made for him on the flights to and from Equador.
17. He said he used to swim but he can no longer do this, and that he does not frequent any clubs His only social activity is going to church three times a week where he cannot kneel and either stands or sits.
18. In answer to questions from Mr Lozynsky, the Applicant agreed that he had first injured his back in 1978 and that since that time he had been working despite his back injury. He said he had never attended a pain management clinic, that his knee pain really started in 2000 and he agreed that he had never mentioned his knee condition to his local General Practitioner, Dr Avramidis, between March 2001 and June 2005. The Tribunal notes that the Applicant’s full patient history from Dr Avramidis makes no mention of a knee problem during this period (Exhibit A4). When asked about the frequency of the pain in his knee the Applicant said that he never knew when the pain would start and it depended on what he was doing. He said the same applied to the pain in his back and hip. When asked how long he could sit without suffering pain he said it was about half an hour and if it was over an hour he needed to get up. When it was put to the Applicant that he been sitting in the Tribunal for well over an hour without having to get up, the Applicant said that he had been moving in his chair and was in pain “right now”. The Tribunal notes that subsequent to this exchange, and on resuming after a one hour lunch break, the Applicant then sat in the hearing for approximately one and a half hours without having to stand and without displaying obvious discomfort.
19. Mr Lozynsky took the Applicant to the Tribunal documents where the SSAT recorded that the Applicant told the Tribunal that the pain in his knee and hips limits his walking ability to about one kilometre. It was the Applicant’s evidence to this Tribunal that he did not say that and that he had said that he could walk about half a kilometre without a rest.
20. When asked by Mr Lozynsky whether he could have undertaken any work during the relevant period, the Applicant said that he could not work and when pressed about the possibility of carrying out light duties, said that the companies always ask for something more and that he could not do the things asked of him. He told the Tribunal he was very depressed because of his pain and that any work activities caused tension in his back and shoulders, causing him to lose concentration. He said he was not fit, because of his health, to participate in any program to improve his work skills and that he was not interested in undertaking light duties as a computer or electrical technician or office assistant because it would affect his health.
21. Mr Lozynsky referred the Applicant to his claim for DSP where the record shows ticks in the boxes relating to questions about capacity to work. At T11/30, a tick is recorded in the box “less than two years” in answer to the question “When do you think you will be able to do any full time work or be trained for full time work”. A tick is recorded in the box “within three months” and in answer to the question “when do you think you will be able to work part time”. And a tick is recorded in the box “now” in answer to the question “do you think you are able to do …a vocational rehabilitation program”. Mr Vasco said the ticks were not his and that when he signed the form the boxes were blank and they had been subsequently filled in by Centrelink staff. Mr Vasco told the Tribunal he did not read the check notes above his signature on T11/36, but he said he did not have time to read the form when he signed it. He said he was by himself when he lodged the claim form and the Centrelink officer completed the form for him, an earlier claim form having been lost and being told to just fill in the part of the form related to his personal details and sign the form. When asked by the Tribunal about his ability to read English, Mr Vasco agreed he could read, if the printing was not too small and that sometimes he read books. The Tribunal notes the SSAT records the Applicant attending classes to improve his English and the Applicant told the Tribunal that he attended such classes for three days a week, for three hours each day over a period of some months.
22. In summary, Mr Vasco submitted that the impairments he suffered, based on the assessments of the doctors whose reports are before the Tribunal, meant that his impairment rating was more than 20 points and therefore he qualified for DSP. In so submitting, the Applicant said that he did not agree with the assessments of Dr Trayer and Dr Keen, that Dr Keen had failed to take into account the additional medical evidence that he had provided and that the Tribunal should accept the medical evidence set out by his General Practitioner, Dr Avramidis, in his report dated 28 October 2004 (T24/96); by Dr Maniam (T25) in his report dated 2 December 2004 (T25/99); and by Dr Krishnan in his report dated 6 May 2004 (T16); and take into account his age and the fact he was not going to get better.
THE RESPONDENT’S SUBMISSIONS
23. In summary, the Respondent submitted that the Applicant’s shoulder condition resulted in an impairment rating of 15 points and that all of the other conditions claimed by the Applicant either attracted a nil impairment rating; or were not fully diagnosed, treated and stabilised at the relevant time such that they could be rated. It was submitted therefore that the Applicant did not satisfy Section 94(1) (b) of the Act .
24. Furthermore, it was submitted that while the Respondent accepts that the Applicant is not fit for heavy lifting, repetitive bending and working above shoulder height, the Respondent does not accept that the Applicant has a continuing inability to engage in light work because of his impairments. It was contended that the Applicant’s impairment was not sufficient to prevent him from undertaking educational vocational training or on-the-job training pursuant the Act.
25.It was submitted therefore that the decision under review should be affirmed.
CONSIDERATION
26. The question before the Tribunal in the first instance is what medical conditions the Applicant suffered during the relevant period.
27. There is no disagreement between the parties that the Applicant suffered from permanent bilateral shoulder pain and back pain at the relevant time and in view of this, and on the material before it, the Tribunal so finds.
28. In respect of the Applicant’s claim for a left knee condition Dr Kuo, in his report of 13 February 2004, clearly refers to patellofemoral chondropathy; with objective signs in the left knee include patellofemoral crepitus, tenderness under the lateral patellar facet and medial femoral condyle. The Tribunal notes that the Applicant’s General Practitioner makes no mention of the left knee, either in his treating doctor’s report (following the claim) or in his full patient’s history, however, based on Dr Kuo’s report, the Tribunal accepts that the Applicant, at the relevant time, suffered from a permanent left knee condition and so finds.
29. In making the above findings the Tribunal is mindful of the provisions set out in the Tables for Assessment of Work Related Impairment for DSP in the Act, including:
5. The condition must be considered to be permanent. Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years. A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.
6. In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:
what treatment or rehabilitation has occurred;
whether treatment is still continuing or is planned in the near future;
whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years.
In this context, reasonable treatment is taken to be:
treatment that is feasible and accessible ie, available locally at a reasonable cost;
where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient.
It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment, unless that treatment has associated risks or side effects which are unacceptable to the person. In those cases where significant functional improvement is not expected or where there is a medical or other compelling reason for a person not undertaking further treatment, it may be reasonable to consider the condition stabilised.
In exceptional circumstances, where a condition was considered not stabilised and a permanent impairment rating not assigned because reasonable treatment for a specific condition has not been undertaken, the medical officer should:
evaluate and document the probable outcome of treatment and the main risks and or side effects of the treatment; and
indicate why this treatment is reasonable; and
note the reasons why the person has chosen not to have treatment.
30. Turning then to the other matters that have been raised about the Applicant’s medical condition, namely in respect of his left foot, his hips, his neck and his psychiatric condition.
31. Dr King, in his report to Dr Avramidis of an ultrasound of the Applicant’s left foot undertaken on 5 November 2004, indicates the possibility of Kaposi sarcoma with biopsy possibly indicated (Exhibit A5). He also reports this condition as being present for some months and Dr Avramidis, in his report dated 28 October 2004 (T24/96), indicates this condition requires further investigation. Dr Maniam makes no mention of this condition.
32. In so far as the Applicant’s hips are concerned Dr Avramadis, in his letter of October 2004, mentions the Applicant’s suffering from osteoarthritis of both hips, left more so than the right. Dr Maniam refers to the Applicant suffering bilateral hip pain but notes that his hip joint movements were satisfactory when he examined the Applicant late in November 2004.
33. In respect of his neck condition, Dr Avramidis reports the Applicant having cervical degenerative osteoarthritis, causing tension headaches and restricted neck movement. Dr Maniam, on examination of the cervical spine reports there were no areas of tenderness, the muscles were not spasmodic, movements were executed to a satisfactory range with some restrictions and the neurological signs in the upper limbs were normal.
34. In respect of his psychiatric condition, Dr Avramidis opines that the Applicant suffers from anxiety and depression as a result of his chronic pain and disabilities. Dr Maniam refers to the Applicant suffering psychological deconditioning, however the Tribunal notes that there has been no psychiatric or psychological examination and report on the Applicant’s condition.
35. After consideration of the available medical evidence the Tribunal is satisfied that, at the relevant time, the Applicant did not suffer from a left foot condition, nor did he suffer from a psychiatric condition and the Tribunal so finds.
36. The Tribunal accepts the possibility of the Applicant having a degenerative osteoarthritic condition in his hips and neck at that relevant time, however for any such condition to be considered in respect of an impairment rating it must, at the relevant time, have been diagnosed, treated and stabilised and considered to be likely to persist in the foreseeable future. Clearly, at the time of the Applicant’s claim and in the thirteen week period thereafter, this was not the case and the Tribunal finds that even if the above conditions were present at the relevant time they are not rateable under the Impairment Tables.
37. It then remains for the Tribunal to rate the Applicant’s three permanent conditions at the relevant time, namely his bilateral shoulder condition, his back condition and his left knee condition.
38. Dealing first with the Applicant’s left knee, Dr Avramidis and Dr Maniam make no mention of an impairment rating for the left knee and Dr Kuo reports a full range of motion of the knee. The Tribunal is satisfied that pursuant to Table 4 of the Impairment Tables, the correct rating of the Applicant’s condition is “nil – walks without difficulty in a variety of different terrains and varying speeds with distances of more than five hundreds metres”.
39. The Tribunal is satisfied, on the evidence before it, that there is no demonstrable loss of strength, mobility, stability, balance, coordination and/or sensation such as to cause moderate interference with walking and one or more of climbing, squatting, sitting or kneeling or pain or clear indications restricting walking to 250 to 500 metres or less at a slow to moderate pace with further walking possible after resting. The criteria in Table 4 are as follows:
TABLE 4. FUNCTION OF THE LOWER LIMBS
Table 4 is used to assess lower limb not spinal function (see Table 5). Assess both limbs together. Determination of lower limb impairments must be based on a demonstrable loss of functions.
Rating Criteria
NIL Walks without difficulty on a variety of different terrains and at varying speeds for distances of more than 500m.
TEN Demonstrable loss of strength, mobility, stability, balance, coordination and/or sensation such as to cause moderate interference with walking and one or more of the following: climbing, squatting, sitting or kneeling or
Pain or claudication restricts walking to 250-500m or less, at a slow to moderate pace (4km/h). Can walk further after resting.
TWENTY Demonstrable loss of strength, mobility, stability, balance, coordination and/or sensation such as to cause major interference with walking and one or more of the following: climbing, squatting, sitting or kneeling or
Pain or claudication restricts walking (4km/h) to 50-250m or less at a time. Can walk further after resting or
Unable to walk or stand but independently mobile using a self-propelled wheelchair.
THIRTY Pain or claudication restricts walking (4km/h) to 50m or less at a time. Can walk further after resting or restricted to walking in and around home and:
requires quad stick, crutches or similar walking aid, or
is unable to transfer without assistance.
FORTY Unable to walk or stand and mobile only in a motorised wheelchair or wheelchair with an attendant.
40. Regarding the Applicant’s back condition, Dr Trayer, on examining the Applicant on 19 March 2004, found a near normal range of movement in the spine (T13/42), and while accepting that the Applicant was unable to perform heavy physical work and had difficulty with repetitive bending and lifting, nevertheless assessed the Applicant as being able to undertake light process work or light office work and gave the Applicant a nil rating under Table 5.2 of the Impairment Tables.
41. Table 5.2 (thoraco-lumbar-spine) gives a nil rating for normal or near normal range of movement.
TABLE 5.2 Thoraco—lumbar-sacral spine
As spinal mobility is a composite movement, this Table measures overall mobility of the trunk including hip movement and is not intended to measure mobility of individual spinal segments.
Rating Criteria
NIL Normal or nearly normal range of movement.
FIVE Loss of one-quarter of normal range of movement.
TEN Loss of one-quarter of normal range of movement as well as back pain or referred pain:
with many physical activities and
with standing for about 30 minutes and
with sitting or driving for about 60 minutes.
or
Loss of half of normal range of movement.
TWENTY Loss of half of normal range of movement as well as back pain or referred pain:
with most physical activities and
with standing for about 15 minutes and
with sitting or driving for about 30 minutes.
or
Loss of three-quarters of normal range of movement.
FORTY Ankylosis in an unfavourable position, or unstable joint.
42. Dr Keen, on review of Dr Trayer’s report (and other related medical reports), concurred in the opinion of Dr Trayer. The Tribunal has examined the related reports of Dr Avramidis, Dr Krishnan and Dr Bass in respect to the Applicant’s back condition, these reports are consistent with the assessments made by Dr Trayer and Dr Keen and the Tribunal finds that the Applicant’s impairment rating for his back condition is nil.
43. Finally, in respect of the Applicant’s shoulder condition, Dr Trayer assessed the Applicant under Table 3 as having an impairment rating of five in the non-dominant upper limb and ten in the dominant upper limb, giving a total impairment of 15 points. The criteria in Table 3 are as follows:
TABLE 3. UPPER LIMB FUNCTION
All upper limb problems are assessed under the upper limb Table (Table 3). Each arm is assessed separately. Determination of upper limb impairments must be based on a demonstrable loss of function.
Rating Criteria
NIL Can use dominant limb effectively and/or
Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of upper limb which causes mild interference with hand function or manual handling.
FIVE Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of non-dominant upper limb which causes moderate interference with hand function or manual handling.
TEN Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of dominant upper limb which causes moderate interference with hand function or manual handling.
FIFTEEN Demonstrable evidence of major loss of strength, mobility, coordination, dexterity and/or sensation of non-dominant upper limb which causes significant interference with hand function or manual handling.
TWENTY Demonstrable evidence of major loss of strength, mobility, coordination, dexterity and/or sensation of dominant upper limb which causes significant interference with hand function or manual handling or
Unable to use non-dominant upper limb at all.
THIRTY Unable to use dominant upper limb at all.
44. Dr Keen, on review of Dr Trayer’s assessment and taking into account other relevant medical reports, concurred in Dr Trayer’s assessment.
45. The Tribunal has examined the reports of Dr Avramidis, Dr Krishnan, Dr Wong, Dr Houang, Dr Kuo and Dr Maniam in respect of the Applicant’s bilateral shoulder condition. In the Tribunal’s view these reports are not inconsistent with Dr Trayer’s assessment of the Applicant’s ability to undertake light work. Dr Trayer’s assessment of the level of impairment suffered by the Applicant is also consistent with the evidence the Applicant gave to the Tribunal about the physical activities he was able to undertake at the relevant time.
46. After consideration of all the material before it and the submissions of both parties, the Tribunal is satisfied that Dr Trayer has correctly assessed the Applicant’s impairment rating in respect of his bilateral shoulder condition and the Tribunal finds that the Applicant has an impairment rating of 15 points because of this condition.
47. For the sake of completeness, the Tribunal has also looked at Dr Maniam’s opinions about the Applicant suffering from psychological deconditioning and having an impairment of 15 points under Table 9 Communication Function-Receptive and Expressive Language Competency. The Tribunal is mindful that there is no psychological or psychiatric report before it, that Dr Maniam has not supported his opinion with any clinical or other observations, and that the Applicant, on his own evidence, has satisfactory or only minor difficultie with communication. The Tribunal is therefore unable to give any weight to Dr Maniam’s opinion in respect of the Applicant’s psychiatric or psychological condition or his communication skills.
48. The Tribunal is therefore satisfied that the Applicant does not satisfy Section 94(1) (b) of the Act in that he has an impairment rating of 15 which is less than 20 points and therefore the Applicant is not qualified for DSP.
49. That being so, it is not necessary for the Tribunal to consider whether Section 94(1) (c) of the Act applies.
50. The Tribunal affirms the decision under review.
I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of Mr I R Way, Member
Signed: L Feely
AssociateDate of Hearing 11 July 2005
Date of Decision 27 July 2005
Applicant Self-represented
Advocate for the Respondent Mr G Lozynsky
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