Zahra and Secretary, Department of Family and Community Services

[2005] AATA 464

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 464

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/543

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		AHMAD ZAHRA

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Ms N Bell, Senior Member

Date23 May 2005

PlaceSydney

Decision The decision under review is affirmed.

.............................................

Ms N Bell
  Senior Member

SOCIAL SECURITY - Application for Disability Support Pension – Applicant Meets 20 Point Impairment Rating under Schedule 1B – Applicant Does Not Have a Continuing Inability to Work

Social Security Act 1991, s94

REASONS FOR DECISION

23 May 2005 Ms N Bell, Senior Member

1.      Mr Zahra is a 50 year old man who is currently receiving the Newstart Allowance from Centrelink.  He has not been employed on a full-time basis since 1988.  In December 2003, Mr Zahra’s application for a Disability Support Pension was rejected by Centrelink and in April 2004, the Social Security Appeals Tribunal affirmed Centrelink’s decision.

2. Mr Zahra has asked this Tribunal to determine whether he meets the eligibility requirements under section 94(1) of the Social Security Act 1991 (“the Act”). In order for Mr Zahra to satisfy section 94(1) of the Act, he must have an impairment or impairments that attract(s) at least 20 points under the Impairment Tables as set out in Schedule 1B to the Act and he must have a continuing inability to work as defined in section 94(2) of the Act, that is, he must be unable, because of his impairments, to work for at least 30 hours per week.

3. It was conceded by the Respondent at the Hearing of this matter that Mr Zahra meets the 20 points requirement under the Act. Mr Zahra has already been assessed as meeting ten points under Table 12 due to his hearing loss, five points under table 21 for his dizziness and headaches, and a further ten points under Table 5.2 for his back condition. The only matter that I must decide then is whether Mr Zahra has a continuing inability to work.

mr zahra’s evidence

4.      Mr Zahra gave evidence in relation to problems he suffers due to hearing loss; back condition; hypertension; diabetes mellitus and migraines/dizziness.  Mr Zahra also informed the Tribunal of some problems that he has relating to his knee, however this problem arose in April 2004, well after the date of his claim, and for this reason, I cannot consider it.

·mr zahra’s hearing condition

5.      Mr Zahra said that his hearing is affected in both ears, his right ear being worse.  He said that the effect of his hearing problems is that he hears a “shhhh” sound continuously in his ear and that it makes him uncomfortable.  Mr Zahra noted that this noise affects his concentration and that it takes him a while to get to sleep.  When speaking to people he said that he has to get them to make eye contact with him and speak to him on his left side.  Mr Zahra said that he has to concentrate hard when talking to people.  He can answer the phone and communicate this way, as long as he holds the phone to his left side.  Mr Zahra is very concerned about the hearing in his left ear becoming as bad as it is in his right ear.

·mr zahra’s back condition

6.      Mr Zahra stated that he has suffered from severe back pain for the last two years.  He said that about four or five years ago he hurt his back and that it was painful for three or four days so he visited a Chiropractor for relief.  He noted that he did not get an x-ray.  Mr Zahra said that after a while his back condition got “really bad” and he had x-rays taken and started to have his back massaged once a week and took three ‘Voltaren’ tablets a day.

7.      When asked whether he would consider undergoing surgery for his back condition, he said that he did not want to do it, that his General Practitioner, Dr Gergis had told him that the only solution is to have an operation but that there was no guarantee of success.  Mr Zahra said that he had never been referred to a back specialist.  To manage his pain, Mr Zahra said that he tries to do a “little bit of exercise every day, even just five minutes” and that sometimes having a massage helps.

8.      Mr Zahra’s back problem means that he is unable to sit for extended periods of time and he also has to change his position constantly to ease his back pain.  He is unable to walk for more than half an hour and if he attempts to walk longer, he finds that he begins to hunch and then his back hurts and he has to take a tablet.  Mr Zahra said that he is able to bend his back.  He stated that for the last three months someone come to his house once a week who gives him a remedial massage and  he hopes that it will have some long term benefit.  Mr Zahra thinks that his back condition has worsened since 2003.

·hypertension

9.      Mr Zahra said that for the last three or four years he has suffered from problems relating to his blood pressure.  He is on suitable medication and noted that currently he is on a higher dose than he used to be.  Mr Zahra said that this problem affects him by making him suffer from dizziness and that it can take two or three days for him to recover.  He does not consider this condition to be under control.

10.     Mr Zahra gave an example of his most recent dizzy spell which occurred on the Sunday before the Tribunal Hearing.  He said that he woke up feeling very dizzy and that the feeling lasted until 4:00pm that day.  Mr Zahra stayed in bed and took his medication every three to four hours.  The next day, Mr Zahra was not feeling dizzy, but felt very tired.  Mr Zahra said that he has suffered from dizzy spells since 1988 and noted that it was around the time that he was declared unfit for work by his last employer.  When asked how often he would suffer from dizziness, he said that it is usually once or twice a month.

·migraine headaches

11.     Mr Zahra takes one tablet a day in order to alleviate this condition which has troubled him for more than ten years.  The condition has settled somewhat over time to the point that he would usually suffer from a migraine about once every month.  Mr Zahra explained that his migraine condition interacts somewhat with the dizziness he suffers in that when he is dizzy he gets a headache, but when he suffers a migraine he is not always dizzy. 

·diabetes mellitus

12.     Mr Zahra takes two tablets every day for his diabetes and has been on similar medication for the last three or four years.  His symptoms include lethargy.  Mr Zahra noted that he has to be very careful about what he eats and has to test his blood sugar level four or five times a day.

how these conditions affect mr zahra’s continuing inability to work

13.     On an average day, Mr Zahra said that he gets up and takes a tablet, then has to wait for at least 30 minutes before eating (in order to take his medication as prescribed).  After breakfast Mr Zahra tries to go for a short walk, something he attempts to do throughout the day to help maintain flexibility of movement.  He finds that he has to sit for most of the day but can participate in activities like shopping, if just accompanying his wife.  He does not do any of the housework or maintain the backyard.  Mr Zahra said that he has plastic grass in his backyard because he cannot mow and added that the noise of lawnmowers makes him uncomfortable.  He said that when his neighbour mows their lawn, he has to shut all of the windows in his house.  Mr Zahra said that even when his wife wants to start the washing machine he feels as though he has to get out of the house.  He stated that feeling uncomfortable with such low levels of noise would affect his ability to work greatly.

14.     Mr Zahra stated that the conditions that most affect his ability to work are his dizziness and his back conditions.  He said that the dizzy spells from which he suffers happen all the time.  If he wakes up feeling dizzy and tries to get up, often crawling without any head movement from side to side in order to take a tablet,  Mr Zahra said that he has to keep his eyes closed and sometimes has to keep them closed and remain still for up to four hours.  Mr Zahra said that he could not be relied upon by an employer to be able to turn up to work as agreed as he is likely to suffer from dizzy spells.  He added that he is unable to drive because of this condition.

15.     Mr Zahra told the Tribunal that if he was not suffering from dizziness on a particular day and there was no noise in the workplace he might be able to work.  He noted that concentrating on a task makes him tired.  He stated that he has tried various ways of seeking and maintaining employment in the past but nothing has worked adding that this was not the first time he has applied for Disability Support Pension.  Mr Zahra reiterated that he would be an unreliable employee, particularly if he was required to 30 hours per week.

other evidence before the tribunal

16.     Given that I am only considering Mr Zahra’s continuing ability to work, I will confine my consideration to the medical evidence relevant to this issue alone.

17.     I have before me a number of reports of Mr Zahra’s General Practitioner, Dr Gergis, confirming the conditions Mr Zahra has described.  In his report of 28 July 2004, Dr Gergis notes that Mr Zahra’s dizziness prevents him from driving.  In all of his reports, Dr Gergis states that Mr Zhara cannot work because of his impairments but, apart from the effect of dizziness on Mr Zhara’s ability to drive, he does not provide any detail as to the way in which Mr Zhara’s impairments prevent him from working.

18.     I note that, at T6, on 11 February 2000, mentions inner ear trauma that may have been the cause of Mr Zhara’s severe balance disturbance.  However, he also notes that the disturbance and rotational vertigo has settled.

19.     On 16 February 2005, Mr Zhara was examined by Dr Wong, Occupational Physician of Health Services Australia.  Dr Wong took a full history from Mr Zhara which was in general accord with Mr Zhara’s evidence to the Tribunal.  On the basis of the limitations described by Mr Zhara, Dr Wong concluded:

“Mr Zhara’s condition is likely to remain relatively unchanged in the future.  Furthermore I estimated that his condition has probably remain (sic) unchanged for the past 6-12 months.  Overall, I form the opinion that Mr Zhara is capable of completing activities of daily living and has the capacity to engage in light sedentary work.  Given that he suffers from dizziness and migraine headaches, I would suggest that he avoids spending significant amount of time looking at the visual display unit and it is likely that he would not be able to tolerate detailed or fine work.  Given the condition of his knee and lower back he is not fit to engage in manual work.  For safety reasons he should only be required to lift weight to his subjective tolerance.  Furthermore, Mr Zhara should be allowed the opportunity to alter his posture whenever necessary.”

20.     Dr Wong finally concluded that Mr Zhara is fit to perform sedentary work for 30 hours per week and gave the examples of gatehouse attendant, car park attendant, or light assembly work in a factory.

consideration

21.     I am concerned that Dr Wong’s assessment does not sufficiently take into account the impact of Mr Zhara’s headaches and dizziness on his ability to sustain employment.  However, there is no detailed medical evidence to support Mr Zhara’s subjective view in relation to the impact of this condition.  In the absence of such evidence, and taking into account the detailed opinion of Dr Wong, I must conclude that Mr Zhara, notwithstanding his impairments, can perform light sedentary work for 30 hours per week withy all of the restrictions outlined by Dr Wong.  I hasten to add that those restrictions noted by Dr Wong are extensive and should, of course, be noted by Centrelink in its administration of Mr Zhara’s newstart allowance payments.

22.     It follows that I cannot be satisfied that Mr Zahra has a continuing inability to work.

decision

23.      The decision under review is affirmed.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member

Signed:         ..........[Linda Blue]............................
  Associate

Dates of Hearing  11 November 2004, 27 April 2005
Date of Decision  23 May 2005
Counsel for the Applicant         Mr Luke Carter