Zahab and Secretary, Department of Family and Community Services

[2003] AATA 613

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 613

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2001/1757  

GENERAL ADMINISTRATIVE DIVISION		)
Re		Ahmad Zahab

Applicant

And Secretary, Department of Family and Community Services

Respondent

DECISION

Tribunal  Ms N Isenberg, Member

Date 27 June 2003

PlaceSydney

Decision The Administrative Appeals Tribunal affirms the decision under review.

[sgd] Ms N Isenberg, Member

CATCHWORDS

SOCIAL SECURITY - disability support pension – physical impairment – entitlement to disability support pension – whether the Applicant had an impairment rating of 20 points or more under the impairment tables – whether the Applicant had a “continuing inability to work” – decision affirmed

LEGISLATION

Social Security Act 1991 – sections 94(1), (2), (3), (4), (5), (6)

Social Security (Administrative) Act 1999 – sections 4(10), (2), (3), (4), (5), (6), (7)

CASE LAW

Secretary of Department of Social Security v Pusnjak (1999) 56 ALD 444

AAT & Secretary, Department of Family and Community Services and Bell [1998] AAT 878

Hamal v Department of Social Security (1993) 30 ALD 517

REASONS FOR DECISION

27 June 2003 Ms N Isenberg, Member

DECISION UNDER REVIEW

1.The decision under review before the Administrative Appeals Tribunals (“the Tribunal") was the decision of the Respondent, the Secretary, Department of Family and Community Services ("the Department") dated 15 June 2001 (T8) as affirmed by the Authorised Review Officer on 25 September 2001 (T18) and the Social Security Appeals Tribunal (“the SSAT") on 29 October 2001 (T2).

BACKGROUND

2.The Applicant was born on 1 September 1943 in Lebanon and is presently 59 years old (T4 page 25).  He arrived in Australia in March 1993 (T4 page 27) and has not worked since that time. 

3.On 1 May 2001 his treating doctor, Dr Kenan O Ismail completed a treating doctor’s report (T5 pages 62-68) which the Applicant lodged with a claim for disability support pension on 18 May 2001. (T4 pages 24-61).  On 8 June 2001 he was examined by Dr Patrick Chew, a medical adviser from Health Services Australia (“HSA”). Dr Chew completed a medical assessment report (T7 pages 70-86).

4.On 15 June 2001 the Applicant’s claim for DSP was rejected and he was advised of the decision in writing (T8 pages 87-88).

5.On 29 June 2001 Dr G.G Mahony provided a letter setting out the Applicant’s permanent disabilities (T10 page 91).  On 23 August 2001 Dr Arthur Wong, HSA occupational physician, who completed a report, assessed the Applicant.  (T12 pages 94-98).  On 30 August 2001 Dr Tanya Nguyen, HSA medical adviser, conducted a file review and completed a report  (T13 page 99).

6.On 3 September 2001 the original decision maker reconsidered and affirmed the decision to reject the Applicant’s claim for DSP (T14 pages 100-101) and on 25 September 2001 an Authorised Review Officer (“ARO”) affirmed the decision (T17 pages105 -108 & T18 pages109 -116).

ISSUES BEFORE THE TRIBUNAL

7.This application concerns a claim for DSP made on 18 May 2001. Entitlement to DSP is governed by section 94 of the Social Security Act 1991 ("the Act"), which provides as follows:

“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.

Person not qualified in certain circumstances

94(6) A person is not qualified for a disability support pension on the basis of a continuing inability to work if the person brought about the inability with a view to obtaining a disability support pension or a sickness allowance or with a view to obtaining an exemption, because of the person's incapacity, from the requirement to satisfy the activity test for the purposes of job search allowance, newstart allowance, youth training allowance, youth allowance or austudy payment.

Note: a person who is receiving a disability support pension may be automatically transferred to the age pension if the person becomes qualified for the age pension (see subsection 48(3)).

8.Insofar as section 94(1) is concerned, there was no dispute that the Applicant does have a physical impairment; he is greater than 16 years of age and, he is an Australian resident.

9.The issues in dispute in the current application, however, are whether he had an impairment of 20 points or more under the impairment tables and, if so, whether he had a "continuing inability to work".

TIME FOR CONSIDERATION OF ENTITLEMENT TO DSP

10.Schedule 2, clause 4 of the Social Security (Administration) Act 1999 provides:

“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;

(b) parenting payment is not a relevant social security payment in the case of a person who becomes qualified for the payment because of the birth of a child.

(3) If:

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

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

(c) the person becomes qualified for the payment within 3 weeks after the claim is made;

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

(4) Subclause (3) does not have effect in relation to a claim for a crisis payment or for a social security pension or benefit.

(5) If:

(a) a person makes a claim for a newstart allowance; and

(b) the person is in receipt of youth allowance or austudy payment; and

(c) the claim is made not earlier than 4 weeks before the day on which, in the opinion of the Secretary, the person will become qualified for a newstart allowance;

the claim is taken to be made on the day on which the person becomes qualified for that allowance.

(6) If:

(a) a person makes a claim for a newstart allowance or youth allowance; and

(b) when the claim is made, the person is serving a liquid assets test waiting period;

the claim is taken to be made on the first day on which the person is qualified for a newstart allowance or youth allowance, as the case may be.

(7) In this clause:

detained person means a person who:

(a) is in gaol; or

(b) is undergoing psychiatric confinement because the person has been charged with an offence.”

11.Therefore, the Tribunal had to consider if the Applicant was entitled to the DSP on 18 May 2001 or at any time in the following 3 months.

APPEARANCES

12.A hearing was held before the Tribunal on 22 January 2003 at which the Applicant appeared without representation, but with the assistance of Mr M Bawazeer, an accredited interpreter in the Arabic language.  The Applicant’s grandson also assisted.

13.Susan Mantaring, an advocate, represented the Respondent from the Advocacy and Administrative Law Team at Centrelink.

14.A resumed hearing was held on 28 March 2003 at which the Applicant again appeared without representation, but assisted by Mr A Antonious, an accredited interpreter in the Arabic language. His daughter Ms Nahla El Zahab, who also gave evidence, also assisted the Applicant.

15.Ms Mantaring again represented the Respondent at the resumed hearing dated 28 March 2003.

EVIDENCE: Documents

16.The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975 ("the T-documents"), which the Tribunal took into evidence.

In addition, the following documents were tendered:

Exhibit	Description	Date
A1	1 page report of Dr Khalil	1 July 2001
A2	Report of Dr Mahony & attachment	14 May  2001
A3	Report of Dr Mahony	5 December 2001
A4	Report of Dr G Al-Shelh	27 January 2003
A5	Report of Dr G Al-Shelh	5 February 2003
A6	Application for  treating doctors report “TDR”	30 September 2002
A7	Report of Dr D Freiberg	26 February 2002
A8	Report of Dr D Freiberg	13 March 2002
A9	Dr G Al-Shelih – Audiology elec-clinic	25 March 2002
A10	Report of Dr Younan	30 November 2001
A11	Letter of Dr Sullivan	17 March 2003
R1	Statement of Facts & Contentions	11 December 2002
R2	Rejection of DSP – Centrelink letter	8 October 2002
R3	Assessment referral information sheet	31 October 2002

EVIDENCE: the Applicant

17.The Applicant gave evidence and was cross-examined on behalf of the Respondent. The Tribunal also put questions to the Applicant.

18.The Applicant told the Tribunal that his major problem at the date of claim was in relation to his back condition.  His back pain also gave him pain in the legs, in the neck and headaches.  Together these prevented him from sleeping.

19.He told the Tribunal he had received physiotherapy from Dr Khalil for a long time.  He had been ‘stretched on a special bed’, then massaged and then had heat treatment.

20.He also said that for a long time he has experienced breathing problems.

21.He told the Tribunal that he lives alone, and has done, since after the motor vehicle accident in 1997.  He became short tempered and his wife left him.

22.He said he is unable to wash clothes, he can’t shave and his daughter has to bath him.  He said he can’t wash his hair or reach his back because of the pain and his daughter sponges him.  He is also not able to clean his legs as he is unable to bend.  As to dressing, he said that he has no trouble putting on a shirt or sitting down to put on his trousers.  He takes his time.  He puts his shoes and socks on ‘bit by bit’.

23.He also said he was unable to feed himself.  By this, he said he is unable to shop for or prepare food.

24.He has 4 daughters and 2 sons and they each take turns to care for him.  At first, after his wife left him, he lived with one daughter, but he was ‘uncomfortable’ as she had children and they were noisy.  The ‘Housing Department’ then found him his own accommodation.  He agreed with the advocate for the Respondent that it was part of his culture that his children should look after elderly parents.

25.He said that his inability to take care of himself makes him depressed.  He was shown Exhibit A10 – Dr Younan's report of 30 November 2001 and agreed that the first time he had seen any psychiatrist was on 18 May 2001 although he was ‘psychiatrically unwell’ prior to that time.

26.The Applicant told the Tribunal on the first occasion the matter was listed, that he had been referred to Dr Lewis-Enright, occupational physician and that he had a report from the Doctor.  The matter was adjourned so that the Applicant could provide report and any other medical evidence upon which he proposed to rely on as evidence.  At the resumed hearing he did not produce Dr Lewis-Enright’s report.

EVIDENCE: Ms Nahal El Zahab

27.Ms El Zahab told the Tribunal that her father is always in pain because of his legs and back and that he has difficulty breathing.  He is continually in tears and even cries in his sleep.  He wakes from his sleep, gasping for breath.  He comes to her place during the day and sleeps on the sofa.  Once she thought he was dying because he was unable to breathe.  She put a mask on him and gave him a pump spray and wet his face and comforted him as best she could.

28.She said he does not want to eat because he has no appetite and so she spoon feeds him to get him to eat something.

29.She confirmed that she sponges his legs and back and washes his hair.  He has had a special shower fitted by the Department of Housing.

30.She said her father is able to drive himself to her place, but sometimes if he is bad she will drive to him.  To get to the hearing he had driven to her place and then he drove them to the station.  He had arrived at her place fully dressed.  En route to the hearing, on the train, he had stood up and sat down and, had trouble breathing..

SUBMISSION: Applicant

31.The Applicant re-iterated that the problems with his back, legs and his breathing difficulties make him incapable of working, as does his depression.  His need to rely on others adds to his depression.   He just wished he could get better.

32.He said his doctors say there is nothing to be done in relation to his back and he just takes painkillers.

33.As to his psychiatric condition he is scheduled to see his new psychiatrist, Dr O’Sullivan in 3 weeks from the date of the hearing.

SUBMISSION: Respondent

34.The Respondent contended that the decision to reject the Applicant’s DSP claim was correct because he did not qualify for the pension at that time; as his total impairment rating was only 10 points.

Thoraco-lumbar (Back) Condition

35.The Applicant’s evidence was that this is his primary condition.  On examination, Dr Chew found that the Applicant had a 25% reduction in normal range of movement in his back.  Dr Chew rated this condition at 5 points on the basis of the comments made by Dr Wong and by the Applicant in relation to his sitting, standing and walking tolerances.

36.The advocate for the Respondent conceded that 10 points was appropriate having regard to the referred pain in the Applicant’s leg.

Lower Limb Function

37.On examination, Dr Chew did not find any restriction of mobility to the Applicant’s right knee.  The left leg was not examined.  However, the impairment of his left leg was already assessed under Table 5.2 as the pain from the left leg was taken as referred pain from his back.  There is conflicting information in relation to how far the Applicant can walk before pain restricts his walking.

38.In the absence of independent evidence, it was submitted, the correct impairment rating for the Applicant’s lower limbs is NIL under Table 4.

Cervical Spine

39.On examination, Dr Chew from HSA did not consider this condition because Mr Zahab’s treating doctor; Dr Ismail did not list it in his report dated 1 May 2001. However, Dr Wong, HSA occupational physician, referred to this condition when he examined Mr Zahab on 15 August 2001. Dr Wong observed that on formal examination there was some reduction in the Applicant’s range of movement, but on informal examination, the Applicant did not display any evidence of neck pain.  His specialist, Dr Mahony stated in his report dated 29 June 2001 that there is only 9% impairment in Mr Zahab’s neck.

40.Based on the medical reports of both HSA doctors and Dr Mahony, it was submitted that the Applicant has retained most of the function in his neck and has a normal range of movement.  The correct rating for the Applicant’s neck pain is NIL points under Table 5.1.

41.Additionally, as this condition has less of an effect on the Applicant than his back pain, then, it was submitted, that the impairment rating assigned to it would be less than that for his back.

Depression

42.Dr Ismail diagnosed the Applicant as suffering from severe depression which is long term and fluctuating.  He wrote in his report that his treatment is 20 mg of Lovan. There was no report from a treating psychiatrist provided.  Dr Chew gave the Applicant’s depression nil points under Table 6, based on his account, denying any symptoms suggestive of a depressive illness.  When examined by Dr Wong, he did not provide much information about the effects that this condition has on him.  In the absence of any conclusive medical evidence to assess this condition and inadequate evidence of the impact this condition has on his family relationships, the advocate for the Respondent submitted that the correct impairment for the Applicant’s depression is NIL under Table 6.

43.Further, it was submitted that if the Applicant had been suffering depression since 1997, as was his evidence, and he did not seek medical attention until November 2001 (Exhibit A10) then this supported Centrelink’s contention that, during the relevant period, the Applicant’s condition was not fully treated and stabilised.

44.The Applicant’s evidence that he can drive and dress himself did not support his contention that he is unable to do ’anything at all’..  The fact that his daughter spoon-feeds him should be disregarded because she does so, not because he is unable to feed himself, but chooses not to.

45.In summary, the Respondent contended that the Applicant’s total combined impairment rating for his conditions is 10 points.

46.As to his continuing inability to work the Respondent submitted that because the Applicant does not meet the requirement of s94(1)(b), it is not necessary to look at eligibility requirement under s94(1)(c).

47.However, for the sake of completeness, the Respondent contended that the Applicant did not have a continuing inability to work at the time of the rejection of his DSP application. The definition in s.94(2) therefore only permits the Applicant’s impairments to be considered in examining his inability to work and excludes non-medical factors such as his age or lack of language or literacy/numeracy skills etc.

48.The Respondent accepted that the Applicant is not able to do heavy labouring work due to his back condition.  However, taking into account his restrictions, the Applicant was said to be medically fit to do light work such as; take away sales person, car park attendant or photographic processing operator, as these and, similar types of work entail only light work which do not require him to engage in any formal training.

49.The Applicant lodged another claim for DSP in which he referred to new conditions: namely sleep apnoea and hearing loss.  The relevant 13-week period in the matter before the Tribunal ended prior to the Applicant re-applying for DSP. Therefore the new conditions raised are not relevant to the decision before the Tribunal.

50.It was also contended that as the Applicant had failed to produce the report of Dr Lewis-Enright the Tribunal should infer that the doctor supported Centrelink’s position.

FINDINGS

51.In coming to the correct and preferable decision, the Tribunal took into account all the evidence, submissions, case law and relevant legislation.

52.The Tribunal reviewed the Applicant’s conditions.

53.It was the Applicant’s evidence that his lower back condition is his major concern. 

54.On examination, Dr Chew found that the Applicant had less than 25% reduction in the normal range of movement in his back and attributed 5 impairment points.  Although the Applicant described to him the pain radiating down his left leg, the doctor could find no radiological correlation of nerve root impingement.  He observed that the Applicant was able to sit throughout the 20-minute interview and noted that the Applicant would shift position when specific questioning occurred in relation to sedentary endurance.  He observed the Applicant’s ‘surprisingly well preserved spinal mobility’, noting that the Applicant sat on the floor with both hips flexed to near right angle to wear his shoes and socks.

55.Dr Mahony said the Applicant’s lateral flexion was restricted to ‘about one half normal’ (Exhibit A1) but otherwise all remaining movements of the Applicant’s lumbar spine were normal.  The xray reports upon which Dr Mahony relied referred only to ‘mild’ degenerative changes.

56.Dr Wong found the Applicant to have restrictions in range of movement, in all directions.  Extension was to one half of expected range, but the doctor considered the Applicant to have demonstrated features of ‘symptom magnification’ and found him to be ‘disability focussed’.

57.As to the radiating pain, in the Applicant’s second application dated 30 September 2002 (Exhibit A6) the Applicant’s new treating doctor, Dr Al-Shelh, made no reference to problems with the Applicant’s legs.  Dr Mahony found the Applicant’s lower limbs to be within normal range (45 degrees).  The Applicant told Dr Chew that he had pain radiating down his left leg, but the doctor could find no neurological basis for this.

As relevant, Table 5.2 provides as follows:

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

·     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

58.The advocate for the Respondent conceded that the correct rating was 10 points under Table 5.2, on the basis of a quarter loss of normal range of movement with referred pain into his left leg.

59.On balance, the Tribunal finds that a rating of 10 points is appropriate on the basis of the evidence of a quarter loss of range of movement as well as referred pain, and the Applicant’s evidence of pain and restriction on standing and sitting.

60.No rating was appropriate in respect of loss of limb function, as it had been addressed, to the extent relevant in the Tribunal’s findings in relation to Table 5.2

Cervical Spine

61.The Applicant’s treating doctor, Dr Ismail did not list this condition in his report dated 1 May 2001.  However, when Dr Wong examined the Applicant on 15 August 2001 he found:

On formal examination, forward flexion of the cervical spine was to three-quarters expected range and extension was to one-third expected range. Lateral flexion to both directions was to one-third expected range and rotation of both directions was to two-thirds expected range.

62.However, in the course of the interview the doctor observed that the Applicant did not display any evidence of neck pain, nodding and shaking his head when he spoke with the interpreter.  This was also the Tribunal’s observation at both hearings.

63.The Tribunal also noted Dr Wong’s remarks in relation to “symptom magnification”, referred to above.

64.The Applicant told Dr Wong that there was no restriction in range of movement of his neck, but he had a constant pain in the base of his neck. 

65.At an interview with the ARO on 21 September 2001 (T17 page105) the Applicant said that his neck is painful when he gets up or is sitting.  As to turning his neck from side to side, he said he only tries to turn his neck a little bit.  He said he can turn his neck but it is very painful.

66.The advocate for the Respondent purported to rely on the evidence of Dr Mahony (T10 page 91) that there is only 9% impairment in the Applicant’s neck.  The Tribunal finds that any submission based on the evidence of Dr Mahony at T10 is flawed.  There is no indication in the letter to what index tables the doctor used.  Clearly, they are not those under Schedule 1B.  The Tribunal prefers Dr Mahony’s narrative evidence (Exhibit A2) as to his assessment of the Applicant’s neck.

67.The Tribunal finds that the fairest descriptor of the Applicant’s neck condition is as follows:

NIL                 Normal or nearly normal range of movement.

FIVE              Loss of quarter of normal range of movement.

TENLoss of half of normal range of movement and frequent/constant neck pain or loss of three quarters of normal range of movement with infrequent neck pain.

TWENTYLoss of three- quarters of normal range of movement and constant neck pain.

THIRTYLoss of almost all movement, or complete ankylosis in position of function.

FORTYAnkylosis in an unfavourable position, or unstable joint.

68.The Tribunal came to this view when taking into account all the available and somewhat conflicting evidence.  Clearly the Applicant suffered some form of jarring injury to his neck in the motor vehicle accident in 1997.  However there was no radiological evidence before the Tribunal of any degenerative changes.  Even the Applicant’s treating orthopaedic surgeon, Dr Mahony describes the Applicant’s condition as a ‘strain’ and had observed that other than in relation to lateral flexion, remaining movements were restricted only at the extremes.

Depression

69.The Applicant’s evidence was that he had been suffering depression since 1997.  In support of the Applicant’s claim Dr Ismail said the Applicant was suffering from long term and fluctuating severe depression and that he had prescribed Lovan.  Although the doctor recorded the onset of the condition as 1998 he had not referred the Applicant to a psychiatrist, until November 2001, when it appears he did so for the purpose of obtaining a medico-legal report.  There was no evidence that Dr Younan treated the Applicant after that time, although the Applicant told the ARO that he was seeing him every 2 or 3 months.  It is unclear when this might have occurred.  It is only in recent times that further psychiatric care is being undertaken, with Dr O’Sullivan. 

70.When Dr Chew examined the Applicant in June 2001 he assessed the Applicant’s depression as NIL points under Table 6 as the Applicant denied any symptoms suggestive of a depressive illness.  He told Dr Chew that he did not take Lovan (as his treating doctor had said).  When examined by Dr Wong, the Applicant did not provide sufficient information for the doctor to be able to form any view about the claimed condition.

71.Dr Al-Shelh, in his letter of 27 January 2003 describes the Applicant’s psychiatric condition (Exhibit A4) as ‘few [sic] nervous breakdown’.  In a letter dated 5 February 2003 (Exhibit A5) he described it as ‘anxiousness [sic] and depression’. 

72.Most recently, ‘secondary major depression’ was how Dr O’Sullivan described the condition in his report of 17 March 2003. (Exhibit A11).

73.In his report of 30 November 2001, somewhat closer to the relevant period, Dr Younan said (Exhibit A10):

Mr. Zahab manifests a picture of depressive anxiety disorder, which is essentially reactive in nature.

74.The Tribunal found this not to state a clear diagnosis of depression at the time of the claim.  In Hudson and Department of Family and Community Services [2002] AATA 502, however, the Tribunal was prepared to assess a condition even though a definite diagnosis could not be provided.

75.Even if the diagnosis were clear or the Tribunal proceeded on the basis of Hudson (supra) the Tribunal noted Paragraphs 4, 5 and 6 of the Introduction to the “Tables for Assessment of Impairment of Disability Support Pension” which state:

“4.  A rating is only to be assigned after a comprehensive history and examination.  For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised.…

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.”

76.The Tribunal considered that in the relevant period the Applicant’s psychiatric condition, however described, had not been treated and stabilised, in that he did not consult a psychiatrist until well after the relevant period and is only now commencing treatment.

77.In this regard the case is not dissimilar from Re Faysal and Secretary, Department of Family and Community Services [2002] AATA 539 the applicant had a form of reactive depression due to his back condition. As in this case, the applicant’s back had been fully investigated, but his psychiatric condition had not.

78.Accordingly, as the condition cannot be regarded as permanent, the Tribunal makes no assessment of this condition.

79.The Tribunal also observed that the Applicant had subsequently claimed disability support pension on 30 September 2002 (Exhibit A6) on the basis of sleep apnoea.  This has produced symptoms of lack of concentration, headache, irritability and depression; temper problems and being unco-operative. The Applicant as sequelae of his back and neck pain problems gave some of these symptoms.  Similarly the claim was also based on the Applicant’s hearing loss which was said to result in lack of co-operation and slow or lack of communication.

80.Taking the 10 impairment points under Table 5.2 and 5 impairment points under Table 5.1 does not produce a combined impairment rating of 20 or more points. Hence the Applicant is unable to meet the requirements of Section 94(1)(b).

81.Having come to this view it was unnecessary for the Tribunal to consider whether the Applicant has a continuing inability to work under s94(1)(c).

DECISION

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

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

Signed:         Georgie Zuzak         
  Associate

Date of Decision  27 June 2003
Counsel for the Applicant         Self - Represented
Advocate for the Respondent   Ms S Mantaring