Faysal and Secretary, Department of Family and Community Services [2002] AATA 539 (21 June 2002)

Last Updated: 3 July 2002

DECISION AND REASONS FOR DECISION [2002] AATA 539

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/1743

GENERAL ADMINISTRATIVE DIVISION )

Re WISSAM FAYSAL

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Senior Member M D Allen

Date 21 June 2002

Place Sydney

ADMINISTRATIVE APPEALS TRIBUNAL ) No N2000/1743

)

GENERAL ADMINISTRATIVE DIVISION )

Re: WISSAM FAYSAL

Applicant

And: SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Senior Member M D Allen

Date 21 June 2002

Place Sydney

Decision FOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is AFFIRMED.

(Sgd) M.D. ALLEN

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

Senior Member

CATCHWORDS

Social Security - Disability Support Pension. Assessment of degree of impairment. If condition not stabilised incapable of assessment. Specific orthopaedic Table 5 preferred to general Table 20 in assessing orthopaedic impairment. Disabilities arising after original determination not considered.

Social Security Act 1991 - s94; Schedule 1B

Freeman v Secretary, Department of Social Security 87 ALR 506

REASONS FOR DECISION

Senior Member M D Allen

1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Applicant of a copy of the decision that was in fact made, the Applicant pursuant to Sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Applicant a statement in writing of the reasons of the Tribunal for its decision.

2. The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

3. The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal's decision.

I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:

Senior Member M D Allen

Signed:

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

Associate

Dates of Hearing 29 April 2002 and 21 June 2002

Date of Decision 21 June 2002

Counsel for the Applicant Mr M Vincent

Solicitor for the Applicant Mr B Georgiannis, Legal Aid Commission

Advocate for the Respondent Mr G Lozynsky

Department of Family and Community Services

DRAFT DECISION

ADMINISTRATIVE APPEALS TRIBUNAL

Matter No 2000/1743

By MR M.D. ALLEN, Senior Member

FAYSAL and SECRETARY, DEPARTMENT OF

FAMILY AND COMMUNITY SERVICES

SYDNEY, 21 JUNE 2002

MR ALLEN: By application made the 12th day of November 2000

the applicant sought review of a decision by a Social Security Appeals

Tribunal on 11 October 2000 that affirmed a prior determination

cancelling the applicant's disability support pension. Section 94 of

the Social Security Act (1991) as amended sets out the criteria for the

grant of a disability support pension and reads inter alia:

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 a 20 points or more under the

impairment tables; and

(c)one of the following applies:

(1) the person has a continuing inability to work.

Subsection (2) of section 94 sets out the definition of "continuing

inability to work in the following terms:

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 two years;

and

(b)either:

(1)the impairment is of itself sufficient to prevent the

person from undertaking education or vocational

training or on-the-job training during the next two

years; or

(2)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 two years.

.fayfamJ 21.6.02 P-1

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The applicant had been employed by the New South Wales State Rail

Authority as a fettler and then as a tradesman assistant. He was

retrenched by that employer sometime in 1995. Subsequent to that

retrenchment he received awards of workers compensation for

industrial deafness and a back injury. At the time of the applicant's

initial application for disability support pension in 1997 his treating

general practitioner described the applicant's incapacities as, "back

pain at multiple levels, tinnitus and vertigo, and elbow pain

syndrome." See document T5 page 35 of the documents prepared

for the Tribunal pursuant to section 37 of the Administrative Appeals

Tribunal Act 1975. So far as that document is concerned the

doctor's handwriting makes a full and accurate account impossible.

There is however extensive medical reports dating from that period

referable to the applicant's workers compensation claim.

On 27 November 1997 the applicant was examined by Dr Parhawk of

Health Services Australia. In report dated that day Dr Parhawk

stated:

Based on today's assessment he has a permanent impairment

of 20 per cent and I agree with his doctor that he is unfit for

any work. I also feel that his impairment will prevent his

vocational training and that he is unfit for work and training

and should be reassessed in two years time.

See document T11 page 83. The sole medical condition regarded as

permanent by Dr Parhawk was the applicant's back pain, to which Dr

Parhawk ascribed a loss of half normal range of movement and thus

an impairment of 20 per cent under table 5.2 in the then tables to

schedule 1B of the Social Security Act 1991. Attached to the report

of Dr Parhawk is a list of medications apparently taken by the

applicant at that time. Significantly, given the later reports of Drs

George and Dinnen the applicant was apparently prescribed

Prothiadine, which is an antidepressant.

Of the medical reports available at that time report of an MRI scan of

the lumbar spine, undertaken on 19 June 1997 by Dr Howang

concludes by stating:

There are multiple disk protrusions at L3-4, L4-5, and L5S1

levels with evidence of annular tear at L3-4 and L5S1 levels.

The secal sac is mildly indented at these levels.

See document T6. In report to the applicant's then solicitors dated

5 November 1996 orthopaedic surgeon Dr Mahoney states inter alia:

.fayfamJ 21.6.02 P-2

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Examination of the back. There was a thoracic kyphosis.

Spinal movements were possible, inflection with fingertips

reaching below the knee level. Extension appeared restricted

in extremes. Lateral flexion and rotation appeared to be within

normal limits.

Later in his report Dr Mahoney stated:

I advised him to wear a lumbar support and restrict his

activities to activities not involving significant bending or lifting.

Dr Mahoney also reported under the heading Examination of the Back

as follows:

Little movement was carried out because of guarding.

Dr Mahoney then concluded his report by stating:

He has been considered fit for duties as outlined.

On 24 September 1997 the applicant was examined by Dr Stukey,

orthopaedic surgeon, at the request of his solicitors. In report of that

day Dr Stukey states inter alia:

On examination he could perform a good range of movements

of his lumbar spine in all directions.

And after reviewing the MRI scan of 19 June 1997 Dr Stukey

opined:

However, there seems little doubt at this stage this man is unfit

to return to the work situation which would require strenuous

exertion of his neck, particularly if this were to involve

significant amounts of bending, lifting or twisting.

The impressions I get from the above reports is that in 1997 the

applicant was not fit for his former occupations but was fit to

undertake what are often referred to as light duties. Both orthopaedic

surgeons noted a greater range of movement in the lumbar spine than

Dr Parhawk.

The applicant's entitlement to disability support pension was subject

to review in November 1999. In a form completed by the applicant

he listed his disabilities as:

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Discopathic back pain, sciatica, hearing loss requiring hearing

aid, fatigue ability and depression secondary to chronic pain

syndrome.

On 14 February 2000 the applicant was examined by Dr Phillips of

Health Services Australia. In dealing with the various ailments of

which the applicant complained Dr Phillips found that the applicant

suffered:

(1) from an L4-5 and L5S1 disk prolapse with a loss of range of

movement of 25 per cent plus pain.

Under table 5.2 of the impairment table this equated to 10 per cent.

(2) a 12 per cent binaural hearing loss, which was a nil impairment

on table 12.

Dr Phillips concluded his report by stating:

This man is capable of suitable light work. He is also highly

motivated to return to some work and would be a good

candidate for rehabilitation. He does appear to clinically have

improved since the grant of DSP in 1997.

There appears to have been no assessment by Dr Phillips of the

applicant's depression.

As a result of Dr Phillips' report the applicant's disability support

pension was cancelled with effect from 3 March 2000. On 4 April

2000 the applicant was interviewed by an authorised review officer

of the respondent, with the assistance of an Arabic interpreter. At

that interview the applicant complained of back pain, hearing loss and

also knee pain. In these proceedings the applicant has also

complained of a pain in his knees.

However, as was pointed out in Freeman v Secretary, Department of

Social Security, 87 ALR 506, in cases such as the present where the

decision is to cancel a pension the jurisdiction of the Tribunal is

narrower in ambit than in reviewing a decision not to grant a pension.

Once the Tribunal decides that the decision to cancel was the correct

or preferable decision at the date of cancellation, then it has no

jurisdiction to consider changes in circumstances since that date.

Therefore, if the applicant has, since 3 March 2000, developed knee

pain, that is irrelevant to my decision.

So far as any psychiatric condition is concerned, I find that disability

is to be considered as a complaint of a psychiatric condition was

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made at the time of Dr Phillips' review in February 2000 and not

addressed by him. The elbow pain was first complained of by the

applicant in 1997 - see T60 at page 48. So far as this condition is

concerned I prefer the report of Dr Rose, who recorded what the

applicant himself said about his elbow pain to that of Dr Lewis Enright.

Dr Rose's report is exhibit R3, and he states therein:

He complains of right elbow pain. He stated that this is a

minor symptom he has had for years and has been able to

work. He states it causes discomfort but is able to complete

tasks. There was no demonstrable impairment on examination.

He had full elbow movement and strength. His hand grip was

normal, therefore there was no demonstrable impairment,

which is a requirement when assessing points.

Currently the applicant is being treated by a Dr Benjamin, who

diagnosed a post-traumatic stress disorder in addition to a major

depressive disorder. Dr Benjamin does not possess formal

qualifications in psychiatry and I therefore prefer the reports of Drs

George and Dinnen who have recognised qualifications in that

discipline.

Dr George interviewed the applicant with the assistance of an

interpreter on 24 January 2002. His report of 31 January 2002 is

exhibit R5. In that report Dr George opined:

At the present time I am not convinced that Mr Faysal has an

ongoing psychiatric disorder constituting post-traumatic stress

disorder. He may have elements of it but one would have

thought that if he was really concerned about his symptoms he

would have continued on with medication under the care of Dr

Benjamin. Alternatively, at the same time he said that he still

has interests such that he takes an interest in his children's

activities and studies. He goes shopping to local shops and

drives his car. He goes to soccer games when they are on,

and indicated that he is actively involved in watching and

following soccer and other sports. This is not the story of a

man who suffers from anxiety and depression and has become

socially withdrawn.

In evidence Dr George stated that he disagreed with Dr Dinnen

regarding the applicant's suffering from an adjustment disorder. In

cross-examination he stated that his opinion was that the applicant

had a pain disorder which was not chronic. However he did concede

that as with Dr Dinnen he considered that the applicant had elements

of a post-traumatic stress disorder. Dr Dinnen, in his report of 9

November 2001, exhibit A12, opines that:

.fayfamJ 21.6.02 P-5

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More importantly the patient does provide symptoms consistent

with depressive disorder. I therefore believe that there is

clinical evidence gained at this interview and from perusal of

the documentation to support the diagnosis of adjustment

disorder with depressed mood consequent to the back

condition and ongoing disability. This is superimposed on a

reasonably well compensated chronic mild post-traumatic

stress disorder. Both of these conditions are stable and are

well managed by the local doctor, and I would not believe that

any significant improvement can be achieved even by intensive

psychiatric care. I believe the condition is no different today

than it was when his pension was cancelled in March 2000.

Cross-examined, Dr Dinnen stated that on its own the applicant's

depressive disorder would not prevent him from working. In evidence

the applicant stated that he is a vice-president of a junior soccer club

and attends training and speaks to the parents. He attends a mosque

regularly and accompanies his wife shopping. Although he cannot

drive long distances he does drive his daughter to the railway station.

He stated that he "gets on" with his children okay, but does tend to

over react.

Given the above, I am persuaded by the evidence of Dr George and

Dr Dinnen, that the applicant does not have a post traumatic stress

disorder, but does have elements of it. That the applicant as long ago

as November 1997 was apparently prescribed Profiadine indicates

that depression has been present at least since then. I am therefore

persuaded by Dr Dinnen, given his report in evidence, that the

applicant does suffer from an adjustment disorder with depressed

mood and this was present as at 3 March 2000.

The respondent submitted that the applicant's psychiatric state was

not capable of being assessed for the purposes of these proceedings,

referring to paragraphs 4 and 5 of the introduction to schedule 1(B)

of the Social Security Act. Those particular paragraphs to the tables

of the assessment of work related impairment, read inter alia:

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.

Paragraph 5 then continues:

The condition must be considered to be permanent. Once the

condition has been diagnosed, treated and stabilised, it is

accepted as being permanent if in the light of available

.fayfamJ 21.6.02 P-6

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evidence it is more likely than not that it will persist for the

foreseeable future. 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 two years.

The applicant has been prescribed anti-depressants in the past by his

general practitioner, but that general practitioner had never referred

the applicant for formal psychiatric assessment or treatment. From

this I infer the general practitioner did not regard the applicant's

depression as disabling. The first time the applicant was assessed by

a person having formal qualifications in psychiatry was by Dr Dinnen

for the purposes of these proceedings.

I reject the argument of the applicant's counsel that the words "the

introduction to the impairment tables" should not be given their full

force and effect. The approach taken is a technical one in that the

said impairment tables require an assessment of the degree of

permanent impairment, the stress being on the words "degree" and

"permanent". Obviously, a degree of impairment cannot be

permanent if full treatment has not commenced. In this matter

although prescribed anti-depressants by his general practitioner, the

applicant had not completed the regime required, see Dr George's

history and the treatment, in any event, would appear to have been

inadequate.

As stated the first time the applicant was assessed by a qualified

psychiatrist was when he saw Dr Dinnen for the purposes of these

proceedings. In these circumstances I am not prepared to find that

as at the date of cancellation of his disability support pension any

particular degree of impairment was permanent. If I was to assess a

degree of impairment regard must be had to the opinion of Dr Dinnen

who assessed the applicant at ten percent under table 6. To rate at

ten percent, the criteria are moderate and regular symptoms and

generally functioning with some difficulty.

For example, noticeable reduction in social contacts or

recreational activities or the beginnings or some interference

with inter-personal or work place relationships, may have

received psychiatric treatment which has stabilised the

condition, minor effects on work attendance and/or ability to

work, but the impairment would not prevent full time work, for

example, short periods of absence from work.

This must be compared to the criteria for a nil assessment which

reads:

.fayfamJ 21.6.02 P-7

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Mild but regular symptoms which tend to cause subjective

distress. On most occasions able to distract themselves from

this distress. Minimal interference with function in everyday

situations, exacerbation of symptoms may cause occasional

days off work, for example there may be some loss of interest

in activities previously enjoyed. There may be occasional

friction with family, colleagues or friends. Medical therapy or

some supportive treatment from treating doctor may be

required.

In making any assessment one must be cautious not to decrease the

degree of impairment because an applicant has a supportive family.

This seems to be the case here. I was impressed by the evidence of

Mr Taybar who has known the applicant and his family since 1988.

Mr Taybar said, amongst other things, that some four to five years

ago the applicant assisted him in starting a soccer club and there was

a lot of work to be done and he worked with the applicant for periods

of four to five hours at a time, indeed at times up to eight hours.

He has noticed that the applicant over the last two years can become

very moody and he has had telephone calls from the applicant's wife

to come over and calm him down. He said of the applicant's wife

that she accepts a lot, particularly in the last couple of years. He

was, however, vague as to just how often these events occurred.

This can be compared therefore with the applicant's evidence as to

his attendance at soccer training, at his mosque, that he accompanies

his wife shopping. All in all, I consider that even currently his degree

of impairment from psychiatric illness does not amount to a full ten

percent.

Dr Lewis Enright considered that the applicant's degree of impairment

from back injury equated to a rating of 20. Dr Lewis Enright preferred

to assess the applicant under table 20 which relates to miscellaneous

conditions rather than table 5 which is the specific orthopaedic table.

At paragraph 8 to the introduction to the tables for assessment it is

stated:

In general, pain or fatigue should be assessed in terms of the

underlying medical condition which causes it. For example,

table 5 should be used for spinal pathology. However where

the medical officer is of the opinion that the tables

underestimate the level of disability because of the presence of

chronic entrenched pain table 20 can be used to assign a rating

instead of the tables that otherwise would be used to assess

the loss of function to which the pain relates.

.fayfamJ 21.6.02 P-8

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When one looks at table 20 it is apparent that it is a very general

table. Indeed the heading is miscellaneous malignancy, hypertension,

HIV infection, morbid obesity, heart liver kidney transplants,

miscellaneous ear, nose, throat conditions and chronic fatigue or pain.

This must be compared say with the words which introduce table 5,

a specific orthopaedic table, "The determination of spinal impairments

must be based on a demonstrable loss of function". Then as table

5.2 points out:

A 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.

In this matter, I am not persuaded that the applicant has chronic

entrenched pain. In evidence in chief, Dr Lewis Enright was critical

of the assessment tables and indeed I found that the whole of his

evidence was coloured by a tendency to fight the tables and advance

his client's case. In my opinion, the proper table under which to

assess the applicant's back disability is the specific table 5 and the

opinions of the orthopaedic surgeons as to range of movement, as is

the opinion of Dr Phillips of Health Services Australia, equates to the

applicant having a ten percent impairment of his back.

In stating that, it is quite clear that for the purposes of table 5 it is

overall mobility that is measured, including hip movement. I am

satisfied, given the reports of Dr Lewis Enright, together with the

evidence of the applicant and the other material before me that this

applicant will never be able to attract an employer willing to employ

him. To cause this man to continue a futile search for employment

is both farcical and cruel. I am however constrained by section 94 of

the Social Security Act 1991 to consider, first of all, his impairment

rating and on that basis, as that rating amounts to ten in total, the

decision under review is affirmed.

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