Zabalky and Department of Family and Community Services [2000] AATA 369 (12 May 2000)

Last Updated: 12 October 2000

DECISION AND REASONS FOR DECISION [2000] AATA 369

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/411

GENERAL ADMINISTRATIVE DIVISION )

Re KAMAL ZABALKY

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Dr J D Campbell, Member

Date 12 May 2000

Place Sydney

Decision The decision under review is affirmed.

(Sgd) J D CAMPBELL

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

Member

CATCHWORDS

SOCIAL SECURITY - Disability Support Pension - impairments - relevant impairments at decision time - rejection - new impairments.

Social Security Act 1991 - s94, schedule 1B

REASONS FOR DECISION

Dr J D Campbell, Member

1. Mr Kamal Zabalky ("the Applicant") in this matter seeks a review of the decision of the Social Security Appeals Tribunal dated 23 February 1999 which affirmed the decision of an Authorised Review Officer of Centrelink dated 9 December 1998. This latter decision affirmed the decision, of the Secretary, Department of Family and Community Services ("the Respondent") dated 9 September 1998, to reject the Applicant's claim for a Disability Support Pension.

2. A hearing was held before the Tribunal on 22 December 1999 at which the self-represented Applicant gave evidence. The Respondent was represented by Ms A Alex, an advocate from the Administrative Law Section of Centrelink.

3. The following written material was placed in evidence before the Tribunal:

Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 Medical report of Dr Osman Ali dated 1 September 1999 Medical report of Dr Y K Patel dated 14 April 1999 Medical report of Dr Y K Patel dated 30 March 1999 Medical report of Dr Y K Patel dated 27 July 1999 Respondent's Statement of Facts and Contentions dated 19 October 1999 T1 - T17 PP1-115 Exhibit A1 Exhibit A2 Exhibit A3 Exhibit A4 Exhibit R1

ISSUES:

4. The issues before the Tribunal are:

(a) whether the Applicant has a physical, intellectual or psychiatric impairment;

(b) whether the Applicant's impairments on assessment under the Schedule 1B tables for the assessment of work-related impairment for Disability Support Pension ("Impairment Tables") are 20 points or more; and

(c) whether the Applicant has a continuing inability to work by virtue of the impairments preventing the Applicant:

(i) from doing any work within the next two years; and either

(ii) from undertaking educational, vocational, or on-the-job training during the next two years; or

(iii) whether such training is unlikely (because of the impairment) to enable the Applicant to do any work within the next two years.

LEGISLATION:

5. The relevant legislation in this matter is the Social Security Act 1991 ("the Act") and, in particular, subsections 94(1), (2), (3), (4) and (5) and the Schedule 1B Impairment Tables, post 1 April 1998.

BACKGROUND:

6. The Applicant lodged a claim for Disability Support Pension with the Respondent on 7 July 1998, in which he nominated his disabilities as hernia, lower back problems and breathing (T3). The Applicant's claim was refused on 9 September 1998 on the ground that his rating for permanent medical impairment at 10 points was below the rating of 20 points or more required (T8). A request for further reconsideration was made by the Applicant, together with the provision of further medical reports. The Respondent, following further medical assessments, declined to alter it's earlier decision (T11). The Applicant sought a further review of the decision on 30 November 1998 and the review officer, in his decision dated 9 December 1998, affirmed the earlier decision (T16). The Applicant further appealed to the Social Security Appeals Tribunal who, in a decision dated 23 February 1999, affirmed the earlier decision that the Applicant does not qualify for a Disability Support Pension as his combined impairment rating of 10 points was less than the 20 points or more required (t2).

EVIDENCE:

The Applicant's:

7. The Applicant told the Tribunal that he was born in Jordan on 3 August 1959. As a child he was educated to year seven to eight, leaving school at age 12. The Applicant stated that he worked as a plumber to age 18, before undertaking National Service for three and a half years in the Army, where he served as a messenger. After his military service, he worked for one-two years as a plumber in air conditioning, followed by two years as a handyman. The Applicant informed the Tribunal that he came to Australia in 1986 at the age of 27, that he is married with three children, and that he has one brother here in Australia and one sister and brother still in Jordan.

8. The Applicant stated that since arriving in Australia he had worked as a packer in a glue factory for three months, but considered the distance to and from work too great to continue; as a labourer for the Council for five to six months; and tried to attain a trade qualification at TAFE, but considered it was for young people only. The Applicant stated that for the last 11 years he had not worked and is currently receiving a Newstart Allowance. Further, the Applicant stated that he owns a 1990 model motor car, which he drives; that his wife does not work and that he had a serious motor vehicle accident some three years ago.

9. In describing to the Tribunal his daily routine, the Applicant stated that he usually rises at about 3am and watches television. The children, aged six, five and one and a half, then wake up. Normally he does not have breakfast, and walks his daughter to school some 500 metres, while pushing the pram. On return, he may sit around or visit old friends and talk about politics, prior to picking up his daughter from school (if too tired his wife will undertake this activity). Sometimes he goes shopping, which is about 50 metres away and other times he may go to the clubs and/or gamble, which he has been doing since 1986. The Applicant further stated that he may wash the dishes, but does not do any vacuuming or cooking; that he goes to bed at 7pm in winter and between 9.30pm and 1am in summer; that he sleeps on the floor; and that he has difficulty sleeping.

10. In describing his various impairments, the Applicant made the following comments to the Tribunal:

(a) Back Impairment -

motor vehicle accident three years ago - was not admitted to hospital and has no active compensation claim. He has experienced pain in the midline lower back for the last three years which is getting worse. In Jordan the Applicant stated he was able to lift heavy things such as boilers, but now has some problems with lifting his son, who is nine kilograms in weight, and bending; can sit for one hour; walk for 500-600 metres and drive a car for 5-10 minutes. The Applicant stated that the pain in the lower lumbosacral area was variable in intensity, worse in winter than in summer and that in summer he had good days and bad days;

(b) Hiatus Hernia -

experiences some regurgitation with food and medicine and when tired feels as though he wants to vomit. Has been treated with Somac and currently is taking Tagamet once a day;

(c) Chronic Cough -

worse in winter, now better than before. Does not use puffer now, when in the past he used to use it five times a day;

(d) Elbow Joints -

Feels hot and tired and numb;

(e) Knee Joints -

pain in both knees, right worse than left, worse in winter. Used to go jogging until four years ago and this may have caused the problems with his knees; and

(f) Mental Illness -

gets a bit depressed, lots of hassle with Centrelink; wife gets upset with his gambling which he tries to stop. Considers that his wife nags him a lot, that he cannot take a lot of pressure and becomes agitated and aggressive. Is on medication, namely Efforor 1 tablet daily, and Potherp 1 tablet three times a day.

MEDICAL EVIDENCE:

11. In a treating doctor's report dated 7 July 1998, Dr Patel described the Applicant's impairments as:

(a) Chronic cough - recurrent dry cough/asthmatic;

(b) Hiatus Hernia with

ulcerativeoesphagitis - cough and abdominal discomfort.

(c) Lower back pain - motor vehicle accident two years ago. Recurrent back pain, worse in cold weather with occasional radiation to right leg.

In describing treatment for each impairment, Dr Patel made the following notations:

(a) Chest x-ray - nothing abnormal detected.

Investigated by Respiratory Physician - all normal;

- (b) Endoscopy normal;

(c) Analgesics.

Dr Patel, noted the Applicant had not worked in 12 years and that any return to work would be up to the patient. Further, he noted that the Applicant would have some minor limitations with movement, some reduction in dexterity, some difficulty with carrying and moving objects and some inappropriate behaviour which would be disruptive to his work activities for at least 60 minutes per day (T4).

12. In a report dated 24 August 1998, Dr Thomas, a medical practitioner employed by Health Services Australia, made the following comments:

"He states his main complaint is nausea, and vomiting, associated with a hiatus hernia. It prevents him from stooping, prolonged bending or laying flat for long periods. He also has a chronic cough, which may be as a result of his reflux, or possibly due to mild asthma. He recently underwent lung function tests which apparently showed no abnormality. He has low back pain, but does not need to take regular analgaesia for this. Raised cholesterol causes no functional impairment. All conditions are permanent.

He states that he can walk and sit for 15-30 minutes. He still drives his children to school, and follows this by doing the grocery shopping. Today he walked and sat comfortably, transferred easily, and had a good, functional range of movement in his spine. He has good strength and dexterity in his hands and arms, and speaks English well.

He is fit for a variety of light to moderate work, but should avoid activities requiring prolonged bending or stooping, laying flat, or having to carry more than 10-15kg. He would be able to work as a parking attendant, cashier, light process worker, cleaner, or kitchen hand. His permanent impairment rating is 10. He is currently unfit for his previous work as a plumber, and will be so indefinitely."

..." (T5 p75)

13. As a result of his examination, Dr Thomas concluded that the Applicant had the following impairment ratings:

Condition (a) Hiatus hernia (b) Chronic cough (c) Low back pain with occasional right leg pain (d) Hyperlipidaemia Loss or restriction of abilities in home and work activities Daily symptoms, worse on bending and lying. Worse in early morning in winter, does not prevent any activity. Does not affect ability to work. Nearly full range of movement. Should not lift more than 10 kilograms, Nil functional impairment, Impairment & Table no. 10 points (Table no 11.1) Nil Nil Table no. 5.2 Nil Table no. 20

Dr Thomas concluded that the Applicant had a combined impairment rating of 10 points (T5 p68).

14. In a further treating doctor's report, dated 2 October 1998, Dr Patel noted a similar list of impairments with the inclusion of a high cholesterol and triglycerides impairment, as he did in his early report, and with the same list of clinical features (T9 p85). On this occasion Dr Patel found the Applicant to:

* understand and follow work instructions without difficulty; and

* have no sensory or articulatory impairment; and

* have minor limitations with movement; and

* may have some discomfort in manipulating objects for work; and

* no difficulty to interact with others at work and behave appropriately.

Dr Patel suggested that the patient be asked, when commenting on whether the Applicant would benefit from vocational training or rehabilitation.

15. In a further medical assessment report, dated 21 October 1998, Dr Reading, in noting that the treating doctor's report revealed no new clinical information while re-listing all original impairments, and that an x-ray of the knees demonstrated minor abnormalities in the right side, concluded that this evidence does not alter or change the original findings and that the Applicant is fit for most forms of light to moderate full-time work.

16. In two further reports dated 14 January 1999 (T17) and 30 March 1999 (Exhibit A3), Dr Patel confirms his opinion that the Applicant is unfit for work and suffers from a chronic pain syndrome. In a further treating doctor's report dated 14 April 1999 (Exhibit A2), Dr Patel again lists the same impairments with no additional clinical features and concludes that the Applicant:

* has substantially diminished dexterity; and

* is unable to lift, carry or move objects; and

* will demonstrate highly inappropriate behaviour which would disrupt his work; and

* mobility would be constrained in some situations; and

* may require instructions occasionally to be repeated.

17. In a further medical report dated 27 July 1999 (Exhibit A4), Dr Patel reports that the Applicant has been diagnosed by Dr Ali, a psychiatrist, as suffering from a major depressive illness.

18. In his report of 1 September 1999 (Exhibit A1), Dr Osman Ali, a consultant rehabilitation psychiatrist, states that the Applicant was being treated for:

"Better adaptation for depressive symptomatology."

Dr Ali, while reporting in the history that the Applicant is depressed partly due to his chronic illness, and:

"His mood has been characterised mainly by despondency and panic attacks."

does not at any stage in this report nominate either a definitive diagnosis or a regime of therapy, although it is noted that the Applicant is currently receiving some anti-depressive medication.

SUBMISSIONS:

19. The Applicant submitted that he is unable to work because of his impairments and that they have not been properly assessed in terms of his symptomatology. Accordingly, it is was submission that he qualifies for a Disability Support Pension.

20. The Respondent contended that both the treating doctor and the independent medical evidence have clearly defined the Applicant's impairments and that, in turn, they have been correctly assessed under the appropriate impairment tables. Relying on the medical evidence that the Applicant has a combined impairment rating of 10 points, and clearly has an ability to work full-time in a range of light to moderate activities. The Respondent contends that the Applicant does not qualify for a Disability Support Pension.

CONSIDERATION AND FINDINGS:

21. The Tribunal, in considering this mater, notes following relevant legislation, namely subsections (94)(1) in part, (2), (3),(4) and (5):

94 Qualification for disability support pension

94(1) A person is qualified for disability support pension if:

(a) the person has a physical, intellectual or psychiatric impairment; and

(b) the person's impairment is of 20 points or more under the Impairment Tables; and

(c) one of the following applies:

(i) the person has a continuing inability to work;

...

94(2) A person has a 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.

94(3) In deciding whether or not a person has a 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:

does not include a program designed specifically for people with physical, intellectual or psychiatric impairments.

does not include a program designed specifically for people with physical, intellectual or psychiatric impairments.

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."

22. In considering the medical evidence at the relevant time, namely medical evidence pertaining to the nominated impairments at time of application and three months thereafter, the Tribunal finds, after considering the medical evidence that the Applicant had four impairments, namely:

(a) low back pain; and

(b) chronic cough with asthma; and

(c) hiatus hernia; and

(d) high cholesterol and triglycerides levels.

There being physical impairments, the Tribunal concludes that the Applicant satisfies subsection 94(1)(a).

23. The Tribunal, in considering issues concerning the Applicant's psychiatric impairment, notes the date of onset of symptomatology apparently commencing in mid 1999, some 12 to 15 months after this application under review was lodged. It is the Tribunal's finding that the psychiatric impairment does not fall within the Tribunal's ambit on this occasion, for it is apparently a new impairment and has occurred well outside the three month period of limitation nominated in the Act. Even if this was not the case, the Tribunal would have encountered much difficulty in dealing with the issue as the report of Dr Ali, in the absence of any clinical diagnosis, fails to define what is necessary - that is a clearly defined history, a clinical diagnosis and a regime of treatment.

24. The Tribunal, in moving to an assessment of each of the impairments, notes the history of the Applicant as described over time but, more importantly, as detailed by the medical practitioners at the operative time. The Tribunal, in noting the consistency of Dr Patel's listing of impairments and their associated clinical features, expresses some difficulty with the credibility of his opinions nominated as regards limitations on the Applicant's ability to work. The Tribunal, accordingly, places little weight on Dr Patel's opinions as to the Applicant's limitations in the workplace with such weighting remaining until a diligent explanation of the variability should be forthcoming.

25. For the impairment of low back pain, the Tribunal notes the nature and description of the low back pain as provided by the Applicant, the ability of the Applicant to walk, drive and participate in gambling activities, and the medical examination of Dr Thomas which revealed a normal or nearly normal range of movement in the thoraco lumbar-sacral spine. There was the mention of an occasional pain in the right leg and that the Applicant used analgesics irregularly for the pain and discomfort. It is the Tribunal's finding that the Applicant has a nil impairment under Table 5.2 for his low back pain. In comment, the Tribunal would expect an adequate diagnostic workup before a finding of a particular and permanent impairment could be made.

26. For the impairment hiatus hernia with ulcerative oesphagitis, the Tribunal notes the history of symptoms, their continuance despite medication in certain circumstances, the endoscopic findings and the opinions of Dr Thomas and Dr Reading, and concludes that the Applicant has an impairment rating 10 points for this impairment under Table 13.

27. For the impairment of chronic cough with asthma, the Tribunal, in noting the Applicant's history that the cough is worse in winter and requires antibiotic medication on occasions, and the asthma, a variable condition, is controlled by the use of inhalants, and further that neither inhibit the Applicant's ability to undertake his daily tasks, finds that the Applicant has a nil impairment under Table 2. In making such a finding the Tribunal relies upon the examination and opinion of Dr Thomas and further upon the fact that examination by a respiratory physician has found no loss of respiratory function (Dr Thomas).

28. In relation to his impairment of raised serum cholesterol and triglycerides, the Tribunal, in noting that they are marginally raised and further that diet, exercise and medication have been part of a therapeutic regime, finds that the raised serum levels of cholesterol and triglycerides do not cause the Applicant any functional impairment, and hence this impairment has a nil rating under Table 25.

29. As a consequence of the Tribunal's findings for each impairment, the Tribunal finds that the Applicant has a combined impairment rating of 10 points. As a consequence of this finding, the Tribunal finds that the Applicant does not satisfy subsection 94(1)(b) of the Act.

30. For completeness, on the issue of whether the Applicant has a continuing inability to work, the Tribunal, in having again noted the history as detailed by the Applicant, the earlier two relevant reports (in time) of Dr Patel, and his later reports in so far as they assist in giving a better understanding of the Applicant's condition at the relevant time, the examination, opinion and report of Dr Thomas and the comments of Dr Reading, concludes the Applicant does not have a continuing inability to work.

31. In making such a finding, the Tribunal has given weight to opinions of Drs Thomas and Reading, by virtue of the greater thoroughness and fullness of their reports and comments respectively, and in particular to the history and examination findings surrounding the Applicant's stated impairments and his ability to work. Dr Patel's reports, albeit he being the treating doctor, demonstrate, in the Tribunal's view, an absence of essential clinical detail when describing the clinical features of the Applicant's impairment, while his two relevant treating medical officer's reports, in July and November 1998, demonstrate a significant variability in the Applicant's workability. Further, the Tribunal valued the Applicant's description of his current limitations arising from his impairments, which allowed the Tribunal to gain further insight into his work limitations at the relevant time.

32. It is the Tribunal's finding that the Applicant should not lift weights in excess of 10 kilograms and should not be involved in activities involving repeated bending (hiatus hernia, low back pain). These findings arise from a careful consideration of the medical evidence, particularly that of Dr Thomas and, in part, that of Dr Patel. As a consequence, the Tribunal, in giving weight to the opinion of Dr Thomas for the reasons outlined earlier, finds that the Applicant with his stated impairments at the relevant time, had a capacity to work in a range of light and moderate, skilled, semi-skilled or lesser skilled jobs for 30 hours per week at award rates or above at the time relevant to this claim.

33. Further, and for the same reasoning, the Tribunal finds that the Applicant, with his nominated impairments at the relevant time, had an ability to undertake educational, vocational or on-the-job training during the next two years. Further, the Tribunal concludes that such training is likely to enable the Applicant to do work within the next two years.

34. As a result of the Tribunal's findings, the Tribunal concludes that the Applicant does not satisfy subsection 94(1)(b) or (c) of the Act, in that the Applicant has failed to satisfy the requirement of a combined impairment rating of 20 points or more, and that the Applicant has failed to satisfy the requirements nominated in subsection 94(2)(a), (b)(i) and (b)(ii). Accordingly, it is the Tribunal's finding that the Applicant did not meet the qualifications necessary for payment of Disability Support Pension at the relevant time in this matter.

DETERMINATION:

35. The decision under review is affirmed

I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of:

Dr J D Campbell, Member

Signed: .....................................................................................

Associate

Date of Hearing 22 December 1999

Date of Decision 12 May 2000

Solicitor for the Applicant Applicant was self-represented

Solicitor for the Respondent Ms A Alex, Centrelink