Zabakly and Department of Family and Community Services

[2001] AATA 930

DECISION AND REASONS FOR DECISION [2001] AATA 930

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2001/365

GENERAL ADMINISTRATIVE DIVISION          )          
           Re      Kamal Zabakly      
  Applicant
           And    Department of Family and Community Services    
  Respondent

DECISION

Tribunal       M J Sassella, Senior Member      

Date9 November 2001

PlaceSydney

Decision      The decision under review is affirmed   

..............................................
  Senior Member
CATCHWORDS
SOCIAL SECURITY – claim for Disability Support Pension – continuing inability to work – major depression – pain in joints – hiatus hernia – psychiatric assessment - required impairment rating not met – claim rejected

The Social Security Act 1991 s 94(1)(a), (b), (c)(i), (d), (e)(i), (ii), (2), (3), (5)
The Social Security (Administration) Act 1999 sections 11, 16(1), (2), 41, 42, and Schedule 2 clauses 3, 4(1), (2)(a)
Re Smith and Defence Force Retirement and Death Benefits Authority (1978) 1 ALD 374

REASONS FOR DECISION

9 November 2001   M J Sassella, Senior Member                  
  HISTORY OF APPLICATION   The first claim   

1. Mr Kamal Zabakly ("the Applicant") lodged a claim, the first claim, with Centrelink for Disability Support Pension ("DSP") on 7 July 1998 (T3). The impairments were said to be "hernia, lower back problems, breathing" (T4). This was rejected by Centrelink on 9 September 1998 as he was assessed as having an impairment rating of only 10 points according to the impairment tables in Schedule 1B of the Social Security Act 1991 ("the Act") (T10). In order to qualify for DSP a claimant must attract an impairment rating of at least 20 points in accordance with s 94(1)(b) of the Act.

2. On 18 November 1998 the original decision maker reviewed that decision and decided not to change it (T10).  He or she took into account a fresh report by the treating doctor (T7) and the Health Services Australia ("HSA") review taking account of T7 (T8, T9). 

1. On 9 December 1998 an authorised review officer ("ARO") in Centrelink affirmed the primary decision (T12). 

1. On 7 January 1999 the Applicant lodged with the Social Security Appeals Tribunal ("SSAT") an application for review of the ARO's decision (T15).  On 23 February 1999 the SSAT affirmed the ARO's decision (T15). The SSAT found that the Applicant had hiatus hernia and abdominal pain, reflux, and back and other joint pain, as well as a chronic cough and asthma, but accepted the impairment rating of 10 points.

1. Some time in 1999 the Applicant lodged with the Administrative Appeals Tribunal ("the Tribunal") an application for review of the SSAT's decision of 23 February 1999.  On 12 May 2000 the Tribunal affirmed the decision of the SSAT.  It held that the Applicant's impairments attracted a rating of only 10 points and that he was fit for light work or to be retrained for work over the next two years (T36).  This was the end of the first claim.

The second claim

1. On 8 April 1999 the Applicant lodged a second claim for DSP (T17).  His impairments were listed as "cough, asthma, reflux, knee pain, elbow and hand pain, back pain, headache, migraine, pains all the time" (T18).  There is no record in the Section 37 Statement and associated documents of the fate of this claim.  However, it is clear from the context that it was rejected.  No subsequent action by an ARO, the SSAT or the Tribunal appears to have occurred.  This was the end of the second claim.

The third claim

1. On 3 January 2000 the Applicant lodged a third claim for DSP (T28) in which he claimed for impairments listed in T29 as:

"I spend most of my days in my bedroom planning ways to kill myself.  Last week I have not left the bedroom for 4 days.  Now I do not want to talk to anyone, including my wife.  I want to be left alone.  I can not sleep.
"My legs and hands and arms hurt when I move them.  When I get upset my hernia hurts.  It is hurting me all the time now because I am upset often because my family is not leaving me alone."

1. These problems were said to have emerged in May 1999.

1. A HSA medical officer on 24 January 2000 (T31) found that the Applicant attracted only 10 impairment points.  She said that the Applicant's depression was of fresh onset and had improved.  The condition was temporary only.  She considered the Applicant's hiatus hernia and concluded that it was not severe and would only prevent him from work involving bending over or lying down on his back.  She allowed 10 points in respect of chronic pain in multiple joints (back, neck, knees, elbows) and head.  She wrote, "He has remarkable [sic] good range of movement despite the pain, and no evidence of radiculopathy or arthropathy.  This condition may limit his work capacity to light duties only".  The chronic cough had no known cause.  It did not seem to distress him at examination.  It may mean he has difficulty working in dusty conditions.  As with all conditions, other than the joint pain, this condition attracted a nil impairment rating.

1. Centrelink rejected the Applicant's claim on 29 February 2000. (T33).

1. On 16 March 2000 the original decision maker reviewed the decision of 29 February 2000 and decided not to change it (T34).  On 16 March 2000 the Applicant sought a review by the ARO (T34).  The Applicant did not agree with the impairment rating.

1. The Applicant requested another review of this decision and underwent further assessment on 19 June 2000 to assess his back condition as this had not previously been done.  He was again assigned 10 points for impairment (T40) and on 27 July 2000 an ARO affirmed the decision (T42). 

1. The ARO wrote that he had spoken with the applicant 29 May 2000 (T43). On that date, the Applicant had provided further medical information and his medical file was referred back to HSA. However the impairment rating did not change and on 19 July 2000 the Applicant told the ARO that he wished to continue with his appeal.  The Applicant confirmed that his physical symptoms were continuing and he was taking medication for them.  He also stated that he had been involved in a car accident a week earlier and this had increased his pain and headaches.  He described his activities of a typical day.  He would wake up, walk around the block, watch television and pick his daughter up from school at 3.00 pm.  He stated that he thought he was affected mainly by his back, hernia and joints.  He said that he would vomit when he bent.  He said he had a chronic cough and could possibly do a few hours light work but had trouble concentrating.  The Applicant was told that his medical information and the reports of the car accident would be referred back to HSA.  When the file was returned to Centrelink there had been no change in the impairment rating.

1. On 27 July 2000 the ARO wrote to the Applicant and stated that his claim was not being granted because, although he had found the Applicant to be suffering from chronic joint pain, chronic cough, reflux and depression, the impairment rating was less than 20 points and there was not a continuing inability to work (T42).  The impairment rating was 10 for the joint pain.  The Applicant was restricted to light work only.  The Applicant was not given an impairment rating for his depression, as it was not considered to be preventing him from working and the condition was considered as temporary.  Before an impairment rating could be assigned a condition must be fully treated and stabilised but that had not occurred in the case of the depression.  When the Applicant had had his HSA psychiatric assessment he showed a marked improvement as compared to the comments made previously by Dr Ali (T22, 1 September 1999).  HSA was of the opinion that the Applicant's medical conditions would not prevent him from working in light duties for at least 30 hours a week.  The previous decision of the Tribunal (T36) did not consider there to be a continuing inability to work and therefore the Applicant's medical conditions did not preclude him from working.

1. On 2 August 2000 the Applicant lodged an application for review with the SSAT (T44).  The SSAT received this on 1 August 2000 (T46).

1. On 11 September 2000 the SSAT decided to set aside the decision under review and remit the matter back to Centrelink for reconsideration with directions that Centrelink arrange for the Applicant to be examined by a psychiatrist and his claim for DSP be reassessed in the light of that report (T46). 

1. The further psychiatric report by Dr Dark (T47, 1 December 2000) found that the Applicant was not suffering depression and was not precluded from undertaking light duties.

1. Centrelink made a fresh decision to reject the Applicant's claim (T49).  On 21 December 2000 the original decision maker reviewed his decision and decided not to change it (T49).  The impairment rating remained at 10 points. 

1. On 28 December 2000 the Applicant told Centrelink he wished to appeal to the ARO (T50).  The ARO decided on 4 January 2001 to affirm the decision under review (T51).  He found that the Applicant's depression "does not cause any impairment to [the Applicant's] daily functioning". 

1. The Applicant lodged an application for review with the SSAT on a date that is not disclosed in the documents.  On 14 February 2001 the SSAT affirmed the decision under review (T2). 

1. On 26 March 2001 the Applicant lodged with the Tribunal an application for review of the SSAT's decision (T1).  This is the matter before the Tribunal in the present proceedings.

BACKGROUND

1. The Applicant was born on 3 August 1959.  He is originally from Jordan, and he was a plumber by trade.  He is married with three young children. He receives Newstart (Incapacitated) Allowance.  He worked 8 years previously as a process worker in a factory in Australia for one month.  He left that job as it was too far for him to travel from Campsie to Tempe.  He has six siblings and attended school until 14 years of age.  In Jordan he worked as a plumber, installed air conditioning for eight months, was a general handyman for another four years, was also a painter and tiler.  He arrived in Australia at age 27 but could not find employment as a plumber, then returned to Syria to marry, returning to Australia three months later.  He denied working since returning to Australia. He had attended TAFE to do some courses, but refused to attend a course in boiler making due to his chronic cough and reflux.

MEDICAL EVIDENCE

1. A HSA assessment dated 24 August 1998 by Dr Thomas stated that the Applicant's main medical complaints were nausea and vomiting, associated with hiatus hernia.  This prevented him from bending or lying flat for long periods.  He had a chronic cough but lung function tests showed no abnormality.  He had lower back pain but did not take medication regularly at that stage.  He had good movement and strength in his arms and hands and was fit for a variety of light to moderate work.  He could work in light duties and his impairment rating was 10.  He was unfit to work as a plumber (T6).

1. An assessment dated 6 October 1998 by Dr A Casolin stated that there was no significant new information and did not alter the earlier recommendation of Dr Thomas made on 24 August 1998 (T8).

1. On 21 October 1998 the Applicant was examined by Dr Martin Reading of HSA.  His report re-stated the Applicant's medical conditions and, in spite of new medical evidence in relation to his knees, did not alter or change the impairment rating of 10.  He was found to be fit for most forms of light to moderate full-time work (T9).

1. A psychiatric report dated 1 September 1999 by Dr Osman Ali stated that the Applicant was depressed partly because of his chronic illnesses and his cognitive functioning was affected by periods of depression and panic attacks.  There were feelings of inadequacy and loss of confidence.  He had a short attention span, irritability and loss of interest in social and emotive communications.  There was no previous history of psychiatric illness in his family.  Dr Ali allocated 30% impairment.  The disorder was fluctuating and recurrent and it was considered that use of medication should continue.  Dr Ali said that the psychiatric impairment would prevent him attending a full-time course in educational or vocational or on-the-job training.  Even if he were to attend he would soon give up due to feelings of helplessness and it was unlikely he would benefit from doing such a course (T22).

1. On 24 January 2000 Dr Iris Weingarten of HSA reported.  She considered the Applicant's medical condition of depression.  She said that he started to see a psychiatrist in June 1999, and took medication which improved his condition.  This condition was considered temporary, and though it could cause some problems with motivation and concentration, it would not prevent a return to work.  He had conditions of hiatus hernia and reflux but was taking medications.  This condition would prevent work involving bending over or lying down on his back. The chronic pain in the Applicant's joints would limit his working capacity to light duties.  The chronic cough would prevent him working in dusty conditions.  The total impairment rating was 10 points.  He was unfit to work as a plumber or in other physically demanding work, or work involving bending or lying down.  He was fit to work 30 hours a week on light duties and would benefit from a gradual return to work over three to six months (T31).

1. A report dated 26 May 2000 from the Sydney Imaging Group indicated degenerative cervical and lumbar spinal joint disease with some arthritis which contributed to the Applicant's lower back pain (T37).

1. A file review dated 19 June 2000 by Dr David Keen, a HSA senior medical adviser, as a result of the CT scan findings in T37 confirmed the Applicant's medical conditions and the previous medical findings and concluded that his conditions did not preclude lighter work.  A rating of 10 was confirmed (T40).

1. An assessment dated 1 December 2000 by Dr Anthony Dark, consultant psychiatrist, found that the Applicant claimed to be depressed all his life but in the last three years it had become worse, and particularly since the death of his father.  However, it was found that the Applicant did not suffer depressed mood or loss of interest or pleasure in his daily activities.  He engaged in various daily activities such as taking his children to school, socialising, shopping, going to clubs and gambling.  When he was depressed he did not engage in these. His health was good, and there was no evidence of depressive cognitive illness.  There was no significant impairment in his ability to concentrate.  There were no suicidal tendencies or mania or psychosis. He could watch television and only had intermittent sleep disturbance.  He had seen another psychiatrist, Dr Ali, on five previous occasions and was prescribed anti-depressant medications which he continued to take and which he found to be helpful.  There is no history of psychiatric illness in his family.  He complained of various pains in his joints for which he was taking medication.  He stated he also has reflux and a chronic cough.  During the interview the Applicant did not show any depressive symptoms, suicidal tendencies or delusional beliefs and his cognitive function appeared to be intact.  Dr Dark did not find any evidence of major depression, and the symptoms were minimal.  They did not preclude him from full-time work, meaning he was fit for a wide range of duties, excluding any heavy work (T47).

1. A HSA file review dated 14 December 2000 by Dr Forssman, following Dr Dark's assessment, stated that, according to the assessing psychiatrist, the Applicant had no evidence of a major depressive disorder, or any other psychiatric condition but did confirm that he suffered various physical complaints.  As a result of those conditions he had an impairment rating of 10 and was fit for light sedentary duties which avoided heavy lifting, repetitive back movements and dusty environments (T48).

1. The Applicant has provided numerous medical certificates from his treating doctor, Dr Y Patel. These documents confirmed the Applicant's impairments and included statements in support of the Applicant's entitlement to DSP. However, Dr Patel did not address the impairment ratings in Schedule 1B of the Act in any detail other than to say that he considered that the Applicant merited 20 points (T20, 27 July 1999), 40 points for physical conditions alone with "30%" also from psychiatrist Dr Ali (T23, 17 September 1999). He did, however, regard the Applicant as unfit for work.

1. A report dated 25 June 2001 from Dr N Rose of HSA (Ex R2) states that the Applicant has generalised joint and other skeletal pains, and depression which was caused by the death of family members.  It was noted that he had not previously been assessed as clinically depressed.  The Applicant provided a letter from his psychiatrist, Dr Roberts, who stated that because of the Applicant's pain he is not fit for work, although he was dubious whether there was a psychiatric condition.  The report stated that the current claim for depression was exaggerated.  In relation to the symptoms of cough, hiatus hernia and reflux he was taking medication but this would not prevent him from working.  The report stated that the Applicant was fit for full-time work, but should avoid heavy exertion.

1. A medical certificate from Dr Patel dated 6 June 2001 re-states the Applicant's previous medical conditions, as well as mentioning hyperlipedemia which is being controlled by diet and medications. The Applicant was also suffering from mood changes, anxiety, major depression and was under the care of a psychiatrist and taking medications.  Dr Patel stated that the Applicant was very anxious, had a suicidal tendency, was anorexic and suffering from insomnia.  These were long term conditions which were not improving and, in Dr Patel's opinion, the Applicant was unfit for work.

RELEVANT LEGISLATION

1. The relevant legislation is found in:

• The Social Security Act 1991 section 94(1)(a), (b), (c)(i), (d), (e)(i), (ii), (2), (3), (5).

• The Social Security (Administration) Act 1999 ("the Administration Act") sections 11, 16(1), (2), 41, 42, Schedule 2 clauses 3, 4(1), (2)(a).

The Social Security Act 1991

94  Qualification for disability support pension

(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;… 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

…

(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).

(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.

…

(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.

The Social Security (Administration) Act 1999

Part 3 — Provision of benefits
Subdivision A—Need for claim

1. General rule

   (1)Subject to subsection (2) and Subdivision B, a person who wants to be granted:

   (a)      a social security payment; or
     (b)      a concession card;

   must make a claim for the payment or card in accordance with this Division.

   (2)Subsection (1) does not apply to a concession card for which a person is qualified under Division 1 of Part 2A.1 of the 1991 Act or under Subdivision A of Division 3 of that Part.

2. How to make a claim

   (1)A person makes a claim for a social security payment or a concession card:

   (a)by lodging a written claim for the payment or card; or

   (b)by making the claim in accordance with subsection (7).

   (2)A written claim for the purpose of subsection (1) for one social security payment or for a concession card must be in accordance with a form approved by the Secretary.

   …

Division 3 — Commencement of social security payment

1. Commencement

   (1)Unless another provision of the social security law provides otherwise, a social security payment becomes payable to a person on the person's start day in relation to the social security payment.

   (2)Unless another provision of the social security law provides otherwise, a concession card takes effect on the person's start day in relation to the card.

2. Start day

   For the purposes of the social security law, a person's start day in relation to a social security payment or a concession card is the day worked out in accordance with Schedule 2.

Schedule 2 — Rules for working out start day

…
3  Start day—general rule

(1)      If:

(a)a person makes a claim for a social security payment; and

(b)the person is qualified for the payment on the day on which the claim is made;

the person's start day in relation to the payment is the day on which the claim is made.

(2)A person's start day in relation to a concession card for which the person is qualified under:

(a)      Division 1 of Part 2A.1 of the 1991 Act; or
  (b)      Subdivision A of Division 3 of that Part;

is the first day on which the person is qualified for the card.

(3)      If:

(a)a person makes a claim for a seniors health card or a health care card under Subdivision B of Division 3 of Part 2A.1 of the 1991 Act; and

(b)the person is qualified for the card on the day on which the claim is made;

the person's start day in relation to the card is the day on which the claim is made.

4  Start day—early claim

(1)      If:

(a)a person (other than a detained person) makes a claim for a relevant social security payment; and

(b)the person is not, on the day on which the claim is made, qualified for the payment; and

(c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and

(d)      the person becomes so qualified within that period;

the claim is taken to be made on the first day on which the person is qualified for the social security payment.

(2)  For the purposes of subclause (1), the following provisions have effect:

(a)subject to paragraph (b), any social security payment, other than newstart allowance or special benefit, is a relevant social security payment;

…

HEARING AND APPEARANCES

1. The Tribunal convened a hearing in Sydney on 31 October 2001.  The Applicant represented himself accompanied by his wife and an Arabic interpreter.  The Applicant had little recourse to the interpreter.

1. The Tribunal had access to the following documentary material which was taken in as evidence:

• Exhibit TD1 – Section 37 Statement and associated documents, 6 August 2001.

• Exhibit A1 – Report by Dr Y Patel, general practitioner, 6 June 2001.

• Exhibit A2 – Treating doctor's report by Dr Patel, 30 May 2001.

• Exhibit A3 – Treating doctor's report by Dr Patel, 3 September 2001.

• Exhibit A4 – Report by Dr Patel, 15 October 2001.

• Exhibit R1 – Respondent's statement of facts and contentions, 23 August 2001.

• Exhibit R2 – HSA medical assessment report, 25 June 2001.

FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS

1. Section 94 of the Act sets out the qualification criteria for DSP. The Tribunal finds that the Applicant meets certain of the criteria. These are:

1. The Applicant has a physical, intellectual or psychiatric impairment (s 94(1)(a) of the Act). The HSA assessments relevant to the third claim for DSP, the claim before the Tribunal in these proceedings, found the Applicant to be suffering from depression, albeit temporary (nil rating), hiatus hernia (nil rating), chronic pain in multiple joints and head (10 points) and chronic cough (nil rating) (T31). T48 is also relevant. Following a review the HSA found that the Applicant suffers from no psychiatric condition.

1. The Applicant has turned 16 (s 94(1)(d) of the Act). He was aged 40 when he lodged the relevant claim on 3 January 2000, having been born on 3 August 1959 (T28).

1. The Applicant has had at least 10 years qualifying Australian residence (s 94(1)(e)(ii) of the Act). He was 27 or 28 when he came to Australia, meaning he came to live here in 1986 or 1987 (T47).

1. The open issues are:

• Whether he has an impairment of 20 or more points under the Impairment Tables (s 94(1)(b) of the Act).

• Whether he has a continuing inability to work (s 94(1)(c)(i), (2), (3) of the Act).

1. The Tribunal notes the evidence in Ex R2 which suggests that the Applicant may now have an impairment rating of 15 points.  Dr Rose has allowed 5 points under table 5.2 in respect of thoraco-lumbar spine.  He has allowed 10 points under table 11.1 in respect of hiatus hernia.  However, this evidence, even if relevant, would not bring the Applicant's impairment rating to 20 points.  It is of limited relevance because the issue before the Tribunal is the Applicant's condition as at the date of claim or within three months of that date.

1. The Tribunal can often apply the law as it stands, and take account of the evidence as it stands, as at the date of its decision (Re Smith and Defence Force Retirement and Death Benefits Authority (1978) 1 ALD 374). However, in the instant case, a decision in the Applicant's favour would, prima facie, have to operate from the date of the first pension payday falling on or after 3 January 2000 (clause 3 of Schedule 2 of the Administration Act). At the best, for the Applicant, if he does not qualify for payment of DSP on that date, but if he does qualify within 13 weeks of that date, he can be paid as of the date of the first pension payday falling on or after the day of qualification (clause 4 of Schedule 2 of the Administration Act).

1. It would not be appropriate to apply the law as it stands in 2001, or to visit the Applicant's medical condition as it stands on any date after 3 April 2000 on the Applicant, for the purposes of the current matter.  The later evidence may be of some relevance if it throws doubt on the accuracy of the earlier evidence, however.

1. The Tribunal finds that the Applicant's impairment rating was less than 20 points on 3 January 2000 and was at the same level throughout the period to 3 April 2000.  The Tribunal relies on the opinions of Drs Weingarten (T31), Keen (T40), Dark (T47) and Forssman (T48), all of whom consider that the Applicant's impairment rating is less than 20 points.  Even if the later report by Dr Rose (Ex R2) is taken into account, while the impairment rating rises it does not reach 20 points.  These doctors are all well acquainted with the Impairment Tables and explain their reasons for finding as they do.

1. The Tribunal prefers the opinions of the above doctors not only for the reasons given in the previous paragraph, but also because of deficiencies in the reports to the contrary.  Dr Patel in his many reports has at times, as noted earlier, advanced possible impairment ratings.  However, he has not explained these by reference to the Impairment Tables.  They are therefore of limited utility.  It is not clear that Dr Patel understands how the Impairment Tables operate.

1. Dr Ali (T22) did rather better in his psychiatric assessment.  He did address the Impairment Tables finding a rating of 30 points for the psychiatric condition alone in 1999.  He cited the Impairment Table descriptor for 30 points, "Serious psychiatric illness with major impairments in several areas, such as work, family relations, judgement, thinking, or mood (e.g. depressed person avoids friends, neglects family, unable to do housework), OR some impairment in reality testing or communication (e.g. speech is at times obscure, illogical or irrelevant)."  However, Dr Ali does not clearly attach a diagnosis to the Applicant's condition.  He also says, "the Disorder is fluctuating".

1. When the Applicant saw Dr Weingarten on 24 January 2000 she said, "He was mildly depressed today, with no psychomotor retardation, problems in concentration or suicidal ideation.  He commenced treatment for this condition only a few months ago, and (comparing my findings with [Dr Ali's]) has markedly improved since.  I therefore consider his condition temporary …" (T31).  Dr Dark on 1 December 2000 (T47) found no convincing evidence in the Applicant's history or presentation of significant mood disturbance and he did not consider him to suffer from a major depression. 

1. The Tribunal therefore finds that Dr Ali's opinion is out of date in comparison to the opinions of Drs Weingarten and Dark.  The Tribunal, as discussed earlier, is interested in the Applicant's condition as at 3 April 2000, at the latest.  Dr Dark's opinion, relates to a later time.  However, Dr Weingarten's, which accords with Dr Dark's, is within the relevant time frame.

1. The Applicant's later treating psychiatrist, Dr Roberts, has provided no written reports.  However, he told the SSAT on 14 February 2001 that he had seen the Applicant twice and had not formed a view about the diagnosis and prognosis.  In Ex R2 Dr Rose writes, "[The Applicant] had a letter from his current psychiatrist Dr Roberts, which he later did not want me to copy.  The letter dated around June 2001, states that if you believe what the client gives about the history of generalised pain, he is not fit for work.  He concluded however that the client's presentation does not fit any psychiatric condition."

1. The Applicant's oral evidence at the Tribunal hearing was of limited use.  He was not happy to have to address the position as it was in the first quarter of 2000.  He considered that the Tribunal should look at how he was on the day of the hearing. 

1. To assist the Applicant to address matters relevant to his application, the Tribunal directed him to T29, the claim form that was the start of the process for the current application before the Tribunal.  The Tribunal has already set out the Applicant's conditions as claimed in T29 (see paragraph 7 above).  He objected that there was no mention that document of his back problem.  The HSA, however, does cover the Applicant's back condition in T31.  He also objected that there was no mention of his cough in document T29.  He agreed that the cough had been better in the year 2000 however it had come back as a result of his recommencing smoking.  The cough was considered and assessed by the HSA in T31.

1. The Applicant was asked about a number of activities listed by Dr Dark in T47.  Dr Dark had written:

"... he initially stated that he does 'nothing'.  However, the report from the Administrative Appeal's Tribunal of 12.5.00 documents that Mr Zabakly engages in a range of activities, including accompanying his children to school, socialising with friends and talking about politics, going shopping, and going to clubs and gambling.  When asked about these various activities, he stated that he engages in them 'if (he) feels all right', but that when he feels depressed, he does not engage in them.  He then informed me that he enjoyed watching television, particularly sports programmes, documentaries, discovery programmes and health programmes.  He states that he enjoys playing poker machines 'if (he's) got the money'."

1. The Applicant considered that Dr Dark was using out of date information.  He insisted that he had told Dr Dark that he did no more than sometimes have a few beers with friends.  He went on to say that he has not taken his children to school for more than seven or eight months.  His wife told Tribunal that it was in fact more than a year since he had taken his children to school.  The Applicant stopped assisting with shopping more than two years ago.  He said that he can no longer carry bags or parcels because of the pain in his hands.  He tends to drop objects.

1. He has not attended the club for about six months.  He finds that he cannot sit in a chair and play.  In addition he cannot afford to play.  He gave up gambling around about five months ago.

1. The Applicant told the Tribunal that he sees Dr Roberts every three or four weeks, and that he had last seen Dr Roberts about three weeks before the hearing.

1. Ms Schuster cross-examined the Applicant.  She took him through a number of documents that suggested that from time to time the Applicant alleged that different conditions were at particular times the most serious of the conditions affecting him.  For example, in T6 at page 78 Dr Thomas reports, "He states his main complaint is nausea, and vomiting, associated with a hiatus hernia."  This was in August 1998.  At T11 the Applicant told an ARO in December 1998 that "his main problem is the pain in his knees and back.  He advised his hernia is still a problem."  At this time there was no mention of pain in his hands or of any vomiting.

1. Ms Schuster took the Applicant to document T22 where there is some reference to the Applicant's physical conditions but there is no mention made of generalised pain, vomiting or reflux.  This is the report by Dr Ali, a psychiatrist.  Ms Schuster noted that Dr Ali identified no suicidal ideation.  Reference was next made to document T18 where, in apparently April 1999, the Applicant had listed his conditions as "cough asthma reflux, knee pains elbow hand pain, back pain, headache, migraine, pain all the time".  There was no mention of, for example, nausea.

1. In document T46 the Applicant told the SSAT in September 2000 that his most significant impairment was his depression.

1. The Applicant explained that he would omit a condition if it had attracted a nil impairment rating.  The Applicant also said that sometimes he forgets to mention things.  The Tribunal notes that, judging from the history of the Applicant's claims for DSP, he has referred more than once to certain conditions that have attracted little impairment rating.  An example is the lower back.

1. The Applicant described Dr Dark as a doctor who was not independent of Centrelink.  He described Dr Dark as "a Centrelink stooge".  The Applicant went on to say that all of the HSA doctors should be disbelieved because their examinations are completed in about five minutes.

1. The Tribunal asked the Applicant to talk about his hernia condition, if possible as it was in early 2000.  The Applicant said that his "whole chest hurts".  He said that his chest is very hot.  He said that his bones hurt him.  He said that lifting can affect his hernia and his chest.  He said this condition has worsened in the last year or so because the pain now affects him daily where it used to be only every few days.  He said that he now has cramps that are more widespread, especially in his calves and thighs.  His doctor had told him to drink a lot of water to help remedy this problem, however in the last year he has not been keen on drinking water.  He finds that some of his medications are bad for his hernia.  He said that he should take less, however he said that he needs these medications.  He said that, as far as vomiting is concerned, in the last two years there had been less of this.  However, since he has taken up smoking again this has worsened and he notices, in particular, the presence of phlegm.  He said that vomiting is a problem that goes back to his childhood and is prompted by smells.  Upon exposure to certain smells he will cough and then vomit.

1. The Applicant told the Tribunal that he cannot work because his pain prevents him concentrating, his medicine does not give him an ability to work, his pain increases daily and his back pain is precipitated by very little.  It can come on simply because he rises from a chair.

1. The Applicant made a final statement saying that he has problems in his back, legs, joints and pain in his bones.  These do not allow him to drive a car or go anywhere.  His wife takes him to the doctor.  His medications make him drowsy.  No one would want to employ him because he cannot do any work.

1. His wife said that the Applicant was always sick and sleepy.  Compared to early in the year 2000, he now becomes aggressive and ill-tempered without his medications.  He will stay in his room away from his children.  However, his medication makes a difference.

1. Ms Schuster made final submissions to the Tribunal.  She homed in on the wife's evidence that the Applicant is getting worse.  She argued that the Applicant was fit to do light work of various sorts, as the experts had said.  She said that his medications were a medical management issue.  Side-effects, such as drowsiness, should be manageable with proper supervision.  She conceded that the Applicant would have few if any skills, having been out of the workforce for over 12 years.  However, she said that training could be investigated.  His medical conditions of themselves would not preclude him from training for employment.

1. The Tribunal has found that 10 impairment points is the appropriate impairment rating for the Applicant at the appropriate time.  Such a finding is consistent with the conclusions reached by the HSA doctors at various times.  The Tribunal has already explained why it tends to prefer these assessments to the stated views of Dr Patel.  However, in relation to those views, there are several issues.  These are that the most recent HSA assessment, in Ex R2, finds an impairment rating of 15.  Additionally, some of the earlier ratings attributed 10 points in respect of hiatus hernia and others in respect of generalised joint pain.  It is necessary for the Tribunal to identify further the basis of its selection of 10 impairment points.

1. Dr Thomas in T6 in August 1998 allowed a 10 points rating under table 11.1 in respect of hiatus hernia.  He noted "daily symptoms.  Worse on bending and lying and lifting".  The relevant sections of table 11.1 read as follows:

"TABLE 11.1 GASTROINTESTINAL: STOMACH, DUODENUM, LIVER AND BILIARY TRACT

Rating/Criteria

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

TEN Nausea and vomiting: moderate symptoms despite optimal treatment Peptic ulcer/oesophagitis: continuing frequent symptoms despite optimal treatment Past gastric surgery with moderate dyspepsia and dumping syndrome  Established chronic liver disease. Symptoms (eg fatigue, nausea) may cause minor loss of efficiency in daily activities but rarely prevent completion of any activity.

TWENTY Constant dysphagia requiring regular dilatationVomiting: severe, not controlled despite optimal medication, and causing significant weight loss Peptic ulcer refractory to all treatment including surgery or with complications eg bleeding or outlet obstruction Established chronic liver disease. Symptoms (eg, more persistent fatigue, nausea, abdominal pain) may prevent or lead to avoidance of some daily tasks and simple tasks will usually aggravate symptoms of fatigue. Most daily activities can be completed but only with some difficulty."

1. It appears that Dr Thomas selected a 10 points rating because the Applicant's symptoms were daily.  The descriptor for 10 points refers to continuing frequent symptoms.  That tends to distinguish a 10 rating from a nil rating.  At the same time a rating of 20 was not justified because there was not, for example, uncontrolled vomiting.  Dr Thomas's opinion is confirmed by Dr Reading (T9, October 1998) who noted, "daily symptoms of reflux despite medication.  Worse on bending, lifting and lying". 

1. However, Dr Weingarten in January 2000 (T31) allotted 10 points because of joint pain in accordance with table 20.  Table c20, as relevant, reads:

"TABLE 20. MISCELLANEOUS - MALIGNANCY, HYPERTENSION, HIV INFECTION, MORBID OBESITY (ie BMI >40), HEART/LIVER/KIDNEY TRANSPLANTS, MISCELLANEOUS EAR/NOSE/THROAT CONDITIONS & CHRONIC FATIGUE OR PAIN

Table 20 can be used for miscellaneous conditions, for example, malignancy, HIV infection, morbid obesity, transplants, miscellaneous ear/nose/throat conditions, disorders with chronic fatigue (including Chronic Fatigue Syndrome) or pain and hypertension. Where there is a separate loss of function, in addition to the loss which can be rated using the system-specific Tables, Table 20 can be used. Double-counting of a particular loss of function, by the use of more than one Table, must be avoided.

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.

TEN Mild to moderate symptoms which are irritating or unpleasant but which rarely prevent completion of any activity. Symptoms may cause loss of efficiency in daily activities but minimal interference performing or persisting with work-related tasks. There is minimal effect/impact on work attendance. Hypertension that is difficult to control despite intensive therapy but without end-organ damage Potentially life-threatening condition which is currently not interfering with daily activities eg. malignancy in remission with a poor prognosis Heart/Liver/Kidney transplants - well controlled (well functioning) with only mild systemic symptoms.

FIFTEEN Moderate to severe symptoms which are more distressing but prevent few everyday activities. Self-care is unaffected and independence is retained. Symptoms may have mild to moderate impact on ability to perform or persist with work-related tasks and/or attend work. Full-time work would still be possible. Potentially life-threatening condition which is currently interfering with daily activities but self-care is unaffected."

1. Dr Weingarten noted on examination, "Full range of movement of hands, elbows, shoulders, knees and neck (but with pain at end of movement).  Lost ¼ movement of back? (query compliance).  Normal power sensation and reflexes.  Thick skin on hand.  No calluses".  Then, at page 189 she says, "Moderate symptoms.  Irritating/unpleasant, rarely prevents completion of daily activity.  Retains good range of movement".  At page 195 Dr Weingarten says, "Chronic pain in multiple joints (back, neck, knees, elbows) and head.  He takes NSAID's, but did not need to see a specialist.  He has remarkabl[y] good range of movement despite the pain, and no evidence of radiculopathy or arthropathy". 

1. Dr Weingarten's assessment finds certain elements that could justify a rating of nil; some that fit with a 10 rating and some that might justify a 15 rating.  On balance, however, she has, in the Tribunal's view, justified selecting 10 points.

1. Dr Keen (T40, June 2000) reaches the same conclusion as Dr Weingarten.  Dr Keen clarifies that his 10 rating includes the lower back effects in addition to the joint pain as attracting the rating of 10 points under table 20. 

1. Drs Weingarten and Keen awarded a nil rating for hiatus hernia because the symptoms were mild rather than moderate, attracting nil under table 11.1.  She notes in T31 that the Applicant has pain in his stomach when he takes too much NSAID's.  She noted no discomfort throughout the interview.  Dr Keen endorsed this finding.

1. Dr Forssman in December 2000 (T48) also awarded 10 points only and that was for joint pain in accordance with table 20.  He also found little functional loss in the Applicant's joints.  He saw the symptoms as "moderate".  He found nil in respect of hiatus hernia.  Symptoms were mild only. 

1. Dr Rose in June 2001 (Ex R2) reinstated a rating of 10 for hiatus hernia and allowed 5 for the thoraco-lumbar spine.  He took a history of "constant abdominal pain" and decided that the symptoms were "moderate" rather than mild.  As regards the thoraco-lumbar spine, the relevant part of table 5.2 reads:

"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."

1. Dr Rose found that the Applicant has at least ¾ normal range of movement.  A 5 points rating was therefore the maximum he was prepared to allocate.  Dr Rose did not award points for pain under table 20.  He said, "on examination there were inconsistencies in his presentation.  On non-formal examination he flexed his back by at least 3/4 normal range of movement to take off his shoes.  On formal examination he was barely able to flex 1/4 of the distance.  On sitting, his straight leg raise was at least 90 degrees, on lying down it was less than 10 degrees.  He stated that when trying to do a straight leg raise lying down, his shoulder hurt.  He sat comfortably in his chair the whole interview (30 minutes).  There was no swelling or other obvious abnormality in his joints.  He has had a previous CT scan of his back, which shows minor disc changes.  Based on the history, previous examinations, the radiology exams and present inconsistencies in examination, I do not feel he has significant impairment."

1. The HSA doctors present the following overall picture.  The Applicant's hiatus hernia was a substantial problem in 1998 accompanied by regular vomiting.  By 2000 the condition had settled and was regulated with medications.  By his own evidence, in 2001 the Applicant has resumed smoking and this has aggravated his hiatus hernia.  The Tribunal finds that in the first quarter of 2000 the assessments of Drs Weingarten and Keen adopted the correct approach by awarding a nil rating in respect of hiatus hernia.

1. The Applicant's joint pain appears to have worsened between 1998 and 2000, however this is subject to what Dr Rose says in Ex R2 about the Applicant's inconsistencies in presentation.  The Tribunal has noted also that Drs Weingarten and Keen identified little restriction in movement of the Applicant's joints.  There is a good case for finding a nil rating under table 20 on the basis of "minor symptoms which are easily tolerated and have no appreciable effect on ability to work".  However, the Applicant clearly believes he experiences great pain in the areas identified by Dr Weingarten.  The Tribunal considers that it would be reasonable for it to adopt the conclusions of Drs Weingarten and Keen and allow a 10 points rating under table 20 for his joint pain.  

1. The Tribunal is not inclined to allow a 5 points rating under table 5.2 in respect of the thoraco-lumbar spine, despite Dr Rose's assessment.  Even if appropriate, this stems from an examination conducted more than a year after April 2000, the last date on which the Applicant must attract a 20 point rating in order to succeed in the present application.  The Tribunal also detects in Dr Rose's explanatory remarks a tendency to see the 5 points he awarded as somewhat generous. 

1. The Tribunal has explained earlier why it finds a nil rating for depression.

CONCLUSION

1. The Tribunal has found that the Applicant's physical and psychiatric impairments attract an impairment rating of only 10 points under the Impairment Tables.  The Applicant therefore does not qualify for DSP as a consequence of the claim lodged on 3 January 2000.

1. It is unnecessary for the Tribunal to find in relation to the Applicant's continuing inability to work.  However, the Tribunal can state that, had the Applicant attracted a 20 points rating under the Impairment Tables, the Tribunal would not have found that he has a continuing inability to work. 

1. This is for the reasons advanced by Drs Thomas (T6), Reading (T9), Weingarten (T31) and Keen (T40). The Applicant is clearly physically capable of light work of the type suggested by Dr Thomas (T6, p 78) and Dr Weingarten (T31, p 196), ie parking attendant, cashier, light process worker, cleaner, kitchen hand, ticket collector or sales assistant. That is to say that Mr Zabakly has the physical and intellectual ability to do such work. He may require training but that is anticipated in s 94(2) of the Act and does not prevent a finding that a claimant has an ability to work. If the disability or disabilities prevent the claimant from engaging in educational or vocational training or on-the-job training a claimant may be regarded as having a continuing inability to work. The Tribunal finds that not to be the case here. Alternatively, if a claimant can be trained, but would then not be likely to find employment, despite the training, because of the impairment, within the next two years, then the claimant has a continuing inability to work. Again, the Tribunal finds that the Applicant's impairments, of themselves, would not be likely to have that effect.

DECISION

1. The decision under review is affirmed.

I certify that the 83 preceding paragraphs are a true copy of the reasons for the decision herein of M J Sassella, Senior Member

Signed:         .....................................................................................
  Associate

Date/s of Hearing  31 October 2001
Date of Decision  9 November 2001
Counsel for the Applicant        Self-represented 
Counsel for the Respondent    Ms Hannelore Schuster, Centrelink