Mohamad and Secretary, Department of Family and Community Services [2002] AATA 699 (16 August 2002)

Last Updated: 19 August 2002

DECISION AND REASONS FOR DECISION [2002] AATA 699

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2002/140

GENERAL ADMINISTRATIVE DIVISION )

Re AHMAD EL MOHAMAD

Applicant

And SECRETARY,DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Rear Admiral A R Horton AO, Member

Date 16 August 2002

Place Sydney

Decision The decision under review, which affirmed a Centrelink decision to cancel payment of disability support pension, is affirmed.

[SGD] Rear Admiral A R Horton AO Member

CATCHWORDS

SOCIAL SECURITY - cancellation of disability support pension - claim for reinstatement - whether Applicant has physical, intellectual or psychiatric impairment of 20 points or more vide Schedule 1B - whether Applicant has continuing inability to undertake work - ability to undertake educational or vocational training

Social Security Act 1991 - section 94, schedule 1B

Social Security (Administration) Act 1999 - section 80

Secretary, Department of Social Security v Cooper (1990) 19 ALD 1

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

REASONS FOR DECISION

16 August 2002 Rear Admiral AR Horton AO, Member

1. This is an application for review of a decision of the Social Security Appeals Tribunal ("the SSAT") dated 16 January 2002 which affirmed a decision of an authorised review officer ("ARO") of Centrelink dated 3 December 2001, to cancel payment of a disability support pension ("DSP") to Ahmad El Mohamad ("the Applicant"). The latter decision followed review of a decision of an authorised delegate of the Secretary, Department of Family and Community Services dated 9 October 2001, to cancel payment of the DSP.

2. The Applicant lodged an application for review by the Administrative Appeals Tribunal ("the Tribunal") on 1 February 2002. At the hearing before the Tribunal on 18 June 2002, the Applicant was self-represented. Ms S Mantaring, an advocate for Centrelink, appeared for the Respondent. Mr Mohamod Bawazeer, an interpreter fluent in the Arabic language, was present to assist the Tribunal.

3. The Tribunal had before it the documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents"). The Tribunal also took into evidence the following documentation:

Exhibit A1 Report by Dr V Ghannoum, General Practitioner, dated 27 March 2002

Exhibit A2 Report by Dr V Ghannoum dated 15 April 2002

Exhibit A3 Report by Dr V Ghannoum dated 5 June 2002

Exhibit A4 Report by Dr G Mahony, Orthopaedic Surgeon, dated 18 April 2002

Exhibit A5 Report by Dr M Younan, Consultant Psychiatrist, dated 12 April 2002

LEGISLATION

4. Section 94 of the Social Security Act 1991 ("the Act") defines the qualification criteria for the disability support pension, and states, relevantly:

"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.

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.

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:

...

"work" means work:

(a) that is for at least 30 hours per week at award wages or above; and

(b)..."

5. Section 80 of the Social Security (Administration) Act 1999 provides the authority for the cancellation of a pension, stating relevantly:

" (1) If the Secretary is satisfied that a social security payment is being, or has been, paid to a person:

(a) who is not, or was not, qualified for the payment; or

(b) to whom the payment is not, or was not, payable;

the Secretary is to determine that the payment is to be cancelled or suspended.

(2) ..."

6. Impairment is assessed against the Work-Related Impairment Tables at Schedule 1B of the Act. The introduction to the Tables states, relevantly:

"...

2. These Tables are designed to assess impairment in relation to work and consist of system based tables that assign ratings in proportion to the severity of the impact of the medical conditions on normal function as they relate to work performance. These Tables are function based rather than diagnosis based. ...

3. These Tables give particular emphasis to the loss of functional capacity that a person experiences in relation to work. ...

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. ...

...

8. In general, pain or fatigue should be assessed in terms of the underlying medical condition which causes it. ...

..."

ISSUES

7. The Applicant was granted the DSP on 30 May 1996. The Applicant was advised by a Centrelink letter dated 30 May 2001, that payment of the DSP was due for medical review. The Medical Review form, together with a Treating Doctor's Report by Dr V Ghannoum was lodged on 5 July 2001 (T10, T11). Following consideration of this report, a further report from Dr Ghaunnoum, reports by Dr Nasser, cardiologist, and examination by a Health Services Australia ("HSA") doctor, a delegate of the Respondent assessed the combined impairment rating vide the Schedule 1B Impairment Tables as 5 points. The Applicant was accordingly informed by a Centrelink letter dated 9 October 2001 that his DSP was to be cancelled on the basis that he did not have a combined impairment rating of 20 or more points as required under section 94(1)(b) of the Act.

8. That decision was affirmed on review on 1 November 2001 wherein the assessment of 5 total impairment points was agreed. An ARO affirmed the decision on 3 December 2001, finding the Applicant suffered impairments of neck and back pain, ischaemic heart disease/myocardial infarction and mild depression, for a total impairment rating of 5 points, relating to the loss of one quarter of normal range of movement of the lumbo-sacral spine.

9. On 16 January 2002, the SSAT affirmed the Centrelink decision to cancel payment of the DSP, determining that the Applicant had a total impairment rating of 15 points, assigning 5 points for the lumbo-sacral spine and 10 points for depression under Table 6, Psychiatric Impairment. The SSAT thus confirmed that the Applicant did not satisfy the provisions of section 94(1)(b) of the Act. The SSAT did not proceed to consider whether the Applicant had a "continuing inability to work" under section 94(1)(c) of the Act.

10. The issue before the Tribunal is whether the Applicant ceased to qualify for the DSP, under the provisions of section 94 of the Act, on 9 October 2001, the date that the primary decision in this matter was made by a delegate of the Respondent pursuant to section 80 of the Social Security (Administration) Act 1999.

APPLICANT'S EVIDENCE

11. The Applicant was born in Lebanon in 1945. He attended school until the age of 16 or 17, but has received no further formal education. He arrived in Australia in 1970, aged 25. His initial employment was with BMC as a factory labourer; he subsequently worked for other employers, but always as a process worker or labourer. In about 1981, the Applicant bought a mixed business, which he and his wife operated from rented premises. He gave evidence that he owned this business for about 5 or 6 years, but also stated that he thought he had sold it in about 1989.

12. The Applicant then bought a milk bar, which he operated with his wife in rented premises. Some time thereafter, he borrowed $200,000 in order to buy the premises, which consisted of the business at ground level, and accommodation on the first floor. He gave evidence that at that time his health was "OK but not that good" but he (and his wife) worked in the business until 1995. Business deteriorated in the last 2 years and his health declined. The Applicant told the Tribunal that he was forced to sell the property back to the bank. He sold the milk bar business for $13,000, that business having been on the market for some 2 years. In this latter period, his wife had medical problems, and he had breathing problems. He has not worked since selling this business.

13. The Applicant gave evidence that in subsequent years his health has further declined. He described his present conditions as lower back pain, often constant and sometimes of such intensity that he cannot walk, and neck pain, with restricted movement, inhibiting his ability to look up. He described difficulty in breathing, which results in him having to get up every 2 or 3 hours each night. He stated that he had become very nervous, and has difficulty coping with people. Further, his arthritis in the left hand and fingers of the right hand - for which he has had injections - have resulted in a loss of dexterity. In general, he feels very unwell.

14. He lives with his wife at Bass Hill, their two children having moved away from home. He described his day as "doing not much", generally remaining around the home, and sitting in the sun. His son mows the lawn. His wife has a car, which he is able to drive for short distances. He stated that shopping was no problem. The Applicant sees his general practitioner, Dr Ghannoum, whenever he feels particularly unwell, and at times 1 to 3 times each month. He saw Dr Younan, Consultant Psychiatrist, twice in 1996, and again this year. He has a history of cardiovascular problems and is being treated by Dr Nasser. The T documents refer to various medications as prescribed by his general practitioner and specialists. The Applicant referred to taking Panadeine for his back problem, Panadeine Forte in respect of neck pain, Livitol for his blood condition, and a medication prescribed by Dr Ghannoum for depression; at Exhibit A3, Dr Ghannoum refers to 50 mg of Zoloft daily. At Exhibit A5, Dr Younan prescribes Tolvon twice daily for depression.

15. The Applicant gave his opinion that he could not work "even for 10 minutes" given his medical conditions. He cannot lift due to his back and neck conditions, and cannot sit or stand for any long periods. He generally feels too unwell to be able to work. Further, he considers his English language skills to be inadequate and hence precluding educational or vocational training and further inhibiting his ability to work in any capacity.

16. In cross examination, the Respondent did not further explore the Applicant's perceptions of his medical conditions, but questioned him as to why depression had not been listed by him in the Medical Review questionnaire (T10), nor noted by Dr Ghannoum in the Treating Doctor's Report (T11). The Applicant re-affirmed that he had depression at that time (July 2001) but given his other impairments, did not think it necessary to list depression. The Respondent then referred to a report dated 20 February 2001 (T12), in which Dr Nasser noted that in an exercise cardiogram, the Applicant achieved 11.6 METS, with fatigue but no chest pains, showing a high exercise tolerance vide Table 1.2 of the Schedule 1B Impairment Tables. In response to the question by the Respondent as to whether Dr Nasser (or Dr Ghannoum) explained the significance of this result, the Applicant responded that "all Dr Nasser said was that I would be on medication for life".

EVIDENCE OF WITNESSES

17. Mrs El Mohamad gave evidence in support of her husband. She stated that as the Applicant's medical conditions had deteriorated, he had become difficult to live with. He was short-tempered and quarrelsome, to the point of occasional physical violence. His nervousness with other people was marked and worsening, and in her opinion he could not work. His ability to assist with household chores was limited; in tasks such as washing and drying dishes, he had to cease after a few minutes due to pain in the shoulders, and at times he cried with pain. Because of his inability to help in the house, she was assisted by her sister and sister-in-law. Her husband's back pain was always there, and was at times severe; if he walked for 10 minutes, he had to rest for two hours. She indicated to the Respondent that the Applicant's health started to deteriorate about 8 years ago (1994); she believed it was progressively worse now than in 2001, he being more nervous, quicker to anger, and frequently objecting to being spoken to. His actions were such that their children were reluctant to visit.

18. Ms Amalin El Mohamad, daughter of the Applicant, gave evidence to the Tribunal. She lucidly described her father as being "difficult" and quick to anger. She attributed this to the pain he suffered from his medical conditions, noting that at night she had heard him "screaming in pain". She stated that whilst she had never really got on with her father, who she considered somewhat of a loner, he had become more agitated in recent years, upset easily, and in her view, was very depressed. She believed he could not work because of his medical conditions, but in any event, did not have the language and communications skills necessary to find employment. In answer to the Respondent, she stated that her description of her father applied both to the present and to the period under review, that is in mid to late 2001, although she believed his loss of the DSP had exacerbated his poor medical conditions.

MEDICAL EVIDENCE

19. In 1996, Dr R Harvey of the Australian Government Health Service diagnosed the Applicant as having low back pain and neck and shoulder pain, controlled hypertension and airway disease and a calcaneal spur (T7). When completing the Treating Doctor's Report as part of the medical review some 5 years later (T11), Dr Ghannoum diagnosed post myocardial infarction, cervical spondylosis and lumbo-sacral spine spondylosis. In drafting this report, Dr Ghannoum had available an earlier report of an examination by Dr Nasser, cardiologist, dated 20 February 2001 (T12), which referred to a background history of hyperlipidaemia and ischaemic heart disease, and which assessed the Applicant's condition as being "reasonably stable", (an opinion again stated in a later report dated 31 July 2001 (T13)). In a later report of 28 September 2001 (T14), Dr Ghannoum referred to the Applicant being depressed, stating, "His depression is secondary to his chronic symptoms".

20. A Medical Assessment Report was completed by Dr J Phillips of HSA on 2 October 2001 (T15), the primary decision in this matter being based on that report. Dr Phillips formed the opinion that the Applicant ceased work some five years earlier when his business failed. He summarised his opinion thus:

" He complains of neck and back pain, which commenced at the time of the stress associated with his business failing. He takes pain killers intermittently. He had some minor reduction of movement today of the L-spine and extension of the C-spine. He sat comfortably for >45 minutes today and transferred without difficulty. No radiology was provided. Nil (points) on table 5.1 and 5 on table 5.2.

He suffered chest pain whilst visiting Syria in 1997 and was told he had suffered a heart attack. He has a cardiologist in Australia. Recent exercise ECG (1/01) showed no evidence of ischaemia and Mr El Mohammad was able to exercise to 11 METS without either chest pain or breathlessness. Nil (points) on table 1.

He has some minor depressive symptoms, which commenced at the time of his business bankruptcy. He takes no anti-depressants. He describes only minor symptoms of insomnia, reduced motivation, etc. He presented well today with a neutral and reactive effect. Nil (points) on table 6"

21. Dr Phillips considered the Applicant fit for a range of light duties, and able to benefit from retraining. He considered him fit to work now (at the time of the assessment) for 30 hours per week.

22. As noted in paragraph 8, the primary decision was affirmed on review on 1 November 2001, the delegate having available a further Treating Doctor's Report by Dr Ghannoum dated 24 October 2001 (T17) which reiterated the conditions he had previously diagnosed, and a radiological report by Dr S Mackie dated 27 September 2001 (T18). In a file review on 31 October 2001 (T19), Dr W Ma of HSA opined that the extant conditions had been adequately assessed and appropriate impairment ratings assigned. The delegate made no changes to the previously assigned total rating of 5 points under the Impairment Tables.

23. There was no further evidence available to the ARO, who affirmed the finding of 5 total impairment points and agreed with the opinion of HSA that the Applicant was fit to undertake light work. The SSAT had no further medical reports on which to base its decision, but reached the conclusion that the condition of depression was relatively long standing and stable, and was satisfied that the Applicant was severely depressed. An impairment rating of 10 points under Table 6 was accordingly awarded, giving a total of 15 points, insufficient to enable the Applicant to meet the criteria defined under section 94(1)(b) of the Act.

24. The Tribunal had available further medical reports, namely Exhibits A1 to A5. Dr Ghannoum (Exhibit A1) reiterated that the Applicant was suffering from severe depression which he attributed to his various medical conditions. He noted that the Applicant had been seen by a psychiatrist, (the Tribunal presumes this was Dr Younan on 19 February 2002 vide Exhibit A5), who recommended him "to start on anti-depressant medication and be reviewed regularly". Dr Ghannoum also referred to "recurrent chest pain", which he again noted in Exhibits A2 and A3; he further noted "shortness of breath" in both the latter reports. Dr Ghannoum expressed his reservations as to whether the Applicant would be able to return to work in the future.

25. Dr Mahony saw the Applicant on 10 April 2002 (Exhibit A4). He opines that:

"Mr El Mohamad has developed symptoms referable to a cervical strain almost certainly in association with degenerate changes with nerve root irritation affecting the upper limbs, a capsulitis of both shoulders and rotator cuff lesions could not be excluded, bilateral, lateral epicondylitis, bilateral ulnar nerve neuritis at the elbows and bilateral carpal tunnel syndrome."

Dr Mahony stated that he had ordered further investigations, (the results of any that may have been carried out are not available) and that he considered the Applicant "unfit for work". No amplifying information or detail was provided in respect of this latter opinion.

26. The final medical report available to the Tribunal is that of Dr Younan, Consultant Psychiatrist (Exhibit A5). This report notes that he diagnosed the Applicant with a depressive disorder - dysthymia - in April 1996, and placed him on Aurorix. He reviewed the Applicant in May 1996, but apparently did not see him again until 19 February 2002, when "he appeared more distressed, depressed and dyspnic..." The Applicant was placed on Tolvon, and in the opinion of Dr Younan, "his current level of depression is causing him a significant impairment in functioning". Other than as implied in this comment, Dr Younan voiced no opinion as to the ability of the Applicant to undertake any work.

SUBMISSIONS

27. Prior to hearing the parties' final submissions, the Tribunal adjourned in order that the interpreter could ensure that the Applicant was fully cognizant of the arguments and submissions of the Respondent as recorded in the Respondent's Statement of Facts and Contentions. The Applicant then submitted to the Tribunal that he had pain in both hands, legs, back and neck, and that his medical conditions were serious and disruptive to his life, as confirmed in evidence given by his wife and daughter. He disputed that the Respondent was in any position to make judgements as to the impact of his medical impairments. He submitted that in particular, the failure of the Respondent to allocate points under Table 5.1 of the Impairment Tables demonstrated an inability to appreciate his neck pain and loss of movement. Further, the Applicant submitted that reports of medical examinations undertaken after his completion of the Medical Review form were very relevant to the consideration of his impairments and his ability to undertake work.

28. The Respondent submitted that on the 9 October 2001, the Applicant did not satisfy the conditions of section 94 of the Act, and hence was not eligible for the DSP. The Respondent submitted that on the evidence before the Tribunal, the relevant impairment points were nil under Table 5.1 for cervical spine, and nil under Table 1 in respect of cardiovascular disease based on the reports by Dr Nasser. The Respondent considered that there was no radiological explanation for constant lumbo-sacral spine pain, but conceded a loss of one quarter of the normal range of movement and pain, leading to an impairment rating of 10 points.

29. In respect of a psychiatric condition, the Respondent submitted that depression had not been identified by Dr Ghannoum until after the submission of the Treating Doctor's Report provided as part of the medical review. The report from Dr Younan (Exhibit A5), which confirmed a depressive condition, also post dated the review period. The Respondent submitted that any depressive condition was minor given that the Applicant did not seek psychiatric treatment for a period of some six years, until he saw Dr Younan in February 2002, and postulated that on the evidence of the Applicant's wife and daughter, the depressive condition worsened after the cancellation of the DSP. If that was the case, then it was incumbent on the Applicant to lodge a new claim, and the Applicant had been so informed. Hence, in respect of this matter, the Respondent considered that the depressive condition warranted nil points, leading to an overall total impairment rating of 10 points, and thus the requirement of section 94(1)(b) was not met.

30. In respect of whether the Applicant had a "continuing inability to work", the Respondent submitted that on the evidence, the Applicant did not have a continuing inability to work, and that a number of non-medical issues needed to be isolated in order that permanent impairments only could be considered. The Respondent observed that whilst Dr Ghannoum considered the Applicant to be unfit for all work for the next two years, Dr Phillips and Dr Ma considered him fit for light duties. The Respondent contended that the Applicant ceased work because of financial difficulties rather than medical problems. The Respondent submitted that the Applicant could undertake light work such as a take away sales person, which would not require him to engage in formal training.

ANALYSIS OF EVIDENCE AND FINDINGS

31. The issue before the Tribunal is whether the Applicant met the conditions of section 94 of the Act on 9 October 2001, the date on which the Respondent made the primary decision that the Applicant had ceased to qualify for the DSP. That decision took account of work-related impairments in relation to the cervical spine, thoraco-lumbar spine, myocardial infarction/ischaemic heart disease and depression. The decision under review by this Tribunal is that of the SSAT dated 16 January 2002 which confirmed those impairments, and in doing so, affirmed that the conditions of section 94(1)(b) of the Act were not met.

32. Based on the evidence before it, the Tribunal is in accord with the SSAT's findings of fact in respect that the Applicant has the above impairments. Hence, the Tribunal must consider whether these impairments are such as to warrant a combined impairment rating of 20 points or more pursuant to section 94(1)(b) of the Act, and the Tribunal considers each impairment condition on the available medical evidence and opinion and the oral evidence given by the Applicant and witnesses.

33. Cervical spine. Spinal functions are to be considered under Table 5 in Schedule 1B of the Act. Table 5.1 refers to the cervical spine. In the Treating Doctor's Report (T11), Dr Ghannoum diagnoses cervical spondylosis with chronic neck pain, and in the subsequent Medical Assessment Report (T15), Dr Phillips agrees with the condition but whilst noting a restriction in movement of the shoulders, finds "no evidence of any significant functional impairment" and gives an impairment rating of nil points. Dr Mahony (in Exhibit A4) notes "little movement of the neck because of guarding" but in respect of the shoulders and upper limbs, considers internal rotation to be "restricted in extremes. The remaining movements were within normal limits". Dr Mahony makes no comment in respect of impairment points. At T6 dated 28 March 1995 and T18 dated 27 September 2001, Drs Doull and Mackie respectively report no significant radiological abnormalities. Whilst the Applicant described his condition as neck pain with restricted movement inhibiting "his ability to look up", and Mrs El Mohamad gave evidence that her husband cried out with pain in the shoulders when carrying out some domestic tasks, the Tribunal concludes on the evidence that there is no suggestion of a loss of a quarter range of movement (as would be required to warrant any impairment rating), and hence agrees that a nil rating is appropriate.

34. Thoraco-lumbar-sacral spine Dr Ghannoum diagnoses lumbo-sacral spine spondylosis at T11. Dr Phillips of HSA (T15) confirms this condition, and accords an impairment rating of 5 points, which under Table 5.2 equates to a loss of one-quarter of normal range of movement. The comments in paragraph 33 above in respect of no significant abnormalities identified in the radiological reports also apply in this instance. Dr Mahony reports that back rotation was within normal limits, but "little remaining movement was carried out because of guarding". He makes no comment in respect of abnormalities rating. The Respondent submitted that whilst there was no radiological explanation for severe pain and loss of movement, a rating of 10 points was considered appropriate based on the oral evidence of the Applicant and the witnesses. The Tribunal accepts this concession, the oral evidence in particular more readily conforming to the criteria for 10 points under Table 5.2, which is:

"Loss of one-quarter of normal range of movement as well as back pain or referred pain:

* with many physical activities and

* with standing for about 30 minutes and

* with sitting or driving for about 60 minutes

or

Loss of half of normal range of movement."

35. Cardiovascular condition Dr Ghannoum refers to the condition of post myocardial infarction, which is variously referred to as a possibility of ischaemic heart disease. Dr Phillips accords a nil impairment rating (T15) based on the results of tests undertaken by Dr Nasser, the Applicant's cardiologist in February and July 2001. Dr Nasser considered the Applicant to be reasonably stable, noting an achievement of 11.6 METS in exercise, with no symptoms of "heart failure or ischaemic chest pain". In two later reports (Exhibits A1 and A2 in March and April 2002 respectively) Dr Ghannoum refers to the Applicant having symptoms of recurrent chest pain and shortness of breath. No useful comment was forthcoming from Dr Ghannoum in response to a subsequent request by the Respondent for further comment in the light of the reports by Dr Nasser. The Applicant gave evidence only in respect of breathing difficulties at night; the evidence of the witnesses are of no help in regard to this issue. In the absence of any evidence, other than the later reports by Dr Ghannoum in respect of pain and breathlessness, the Tribunal must place reliance on the reports by Dr Nasser. Table 1 is the appropriate table for this condition, and ratings are assigned on the basis of assessed activity levels (MET). 11.6 METS relates to a rating of nil under that table, and the Tribunal finds accordingly.

36. Psychiatric Impairment In 1996, the Government Health Service Medical Officer found the Applicant to have a temporary condition of reactive depression. A psychiatric condition was not diagnosed by Dr Ghannoum in his report of 4 July 2001 (T11) forming part of the Medical Review, but was referred to as "secondary to his chronic conditions" in a later report of 28 September 2001 (T14). In his Medical Assessment Report of 2 October 2001 (T15), Dr Phillips found symptoms of depression to be minor, with no recourse to antidepressants, leading to an assessed impairment rating under Table 6 (Psychiatric Impairment) of nil points. Dr Phillips did relate the onset of the (minor) depressive condition to the failure of the business in 1995.

37. In his further Treating Doctor's Report of 24 October 2001 (T17), Dr Ghannoum diagnosed depression, the clinical features being due to the Applicant's other impairments. He considered the condition to be fluctuating, and noted the Applicant was on medication. The only specialist report available to the Tribunal is that of Dr Younan, Consultant Psychiatrist, dated 12 April 2002 (Exhibit A5). That report refers to an examination of the Applicant on 16 April 1996 when he was diagnosed as suffering a "depressive disorder - dysthmia", and again on 16 May 1996. There is no evidence that the Applicant was again seen by a psychiatrist until 19 February 2002, almost 6 years later, when Dr Younan found him "more distressed, depressed and dyspnic..." He placed him on medication and saw the level of depression as leading to a significant impairment in functioning.

38. There is no evident explanation for the fact that the Applicant did not seek medical treatment for depression for some six years, nor that he was not referred for specialist opinion by his treating doctor. Even when completing the Medical Review as called for by the Respondent, the treating doctor did not refer to such a condition. The Respondent takes the position that the Applicant's depressive condition was minor when seen by Dr Phillips and that it deteriorated after cancellation of the DSP. There is no evidence before the Tribunal to support such a linkage, other than the fact that the SSAT observed the Applicant to be withdrawn and formed the opinion that he was severely depressed. The Respondent further submitted that a depressive condition in February 2002 cannot be made retrospective to October 2001 when the decision to cancel DSP was taken.

39. Before the Tribunal, the Applicant was morose and withdrawn. His family members gave evidence of anti-social behaviour, such as quick to anger and resorting to physical violence on one occasion, and increasing nervousness and difficulty in communicating with others. Mrs El Mohamad suggested that his health had deteriorated over about the last eight years; in response to questioning by the Respondent, she stated that his depressive condition had worsened since mid 2001. Ms El Mohamad suggested that her father's apparent failure to refer his depressive state to his general practitioner may be reflective of his non-English speaking background. The Tribunal has some difficulty with this suggestion in this case, given that the Applicant regularly sees his general practitioner in respect of other ailments.

40. It may well be that the loss of the DSP has exacerbated the depressive condition of the Applicant, but that is supposition. The oral evidence is persuasive in confirming that the Applicant has a depressive disorder which seemingly has deteriorated. Weight must be given to the specialist report by Dr Younan, which reflects his opinion that the Applicant was suffering from a depressive disorder in February 2002, when he placed him on anti-depressant medication. But Dr Younan had not seen the Applicant since diagnosing a depressive disorder some five years earlier. In the ensuing five years until mid to late 2001, the only evidence of any depressive condition is that in a report by Dr Ghannoum in February 1998 (T8) when he questioned whether the Applicant had a temporary anxiety condition. Yet as noted, Dr Ghannoum makes no mention in the Medical Review in July 2001 of any similar condition or depression. On examination, Dr Phillips of HSA in October 2001 (T15) diagnosed only minor symptoms for depression, and noted 'no current antidepressants. Denies any significant symptoms currently....' and gave a nil rating under Table 6 of the Impairment Tables.

41. As noted earlier, the Respondent submitted that a depressive condition in February 2002 cannot be made retrospective to October 2001 when the Applicant's DSP was cancelled. Whilst the Tribunal acknowledges this submission, it must take into account the strong evidence by the witnesses in particular, as to the applicant's condition and behaviour. The Tribunal also has difficulty in divorcing the specific finding by the Consultant Psychiatrist Dr Younan that the Applicant was 'more distressed, depressed and dyspnic...', and requiring medication that was increased shortly thereafter, in February 2002, as against a condition of mild depression diagnosed by Dr Phillips only three months earlier.

42. Therefore, on balance, the Tribunal finds that the evidence points to the Applicant having a moderate depressive condition at the time of the primary decision to cancel payment of DSP. As such, that warrants 10 points under Table 6 of the Impairment Tables, the criteria for which is :

"Moderate and regular symptoms and generally functioning with some difficulty. (eg. noticeable reduction in social contacts or recreational activities, or the beginnings of some interference with interpersonal or workplace 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 (eg. short periods of absence from work)."

43. Accordingly, the Tribunal finds that the total impairment rating of the Applicant is 20 points, and hence the conditions of section 94(1)(b) of the Act have been met.

44. That being the case, it is necessary for the Tribunal to consider whether the Applicant has a "continuing inability to work" as defined under section 94(1)(c) of the Act, but it behoves the Tribunal to point out that the test of "continuing inability to work" as further defined in sections 94(2) and (3) requires that such inability must result from the impairments alone. In considering this matter, the Tribunal is mindful of the Federal Court decision of O'Loughlin J in Secretary, Department of Social Security v Cooper (1990) 19 ALD 1, wherein his Honour at 6 referred to the Social Security Act as beneficial legislation, drawing on Bull v Attorney-General (NSW) (1913) 17 CLR 370 where Isaacs J said at 384:

"...it should be construed so as to give the fullest relief which the fair meaning of its language will allow".

45. Section 94(2) of the Act defines the criteria for assessing whether an applicant has a "continuing inability to work". In Re Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444, Drummond J addressed the approaches to the issues in that section in the following manner:

"(i) Having regard to the legislative history of s94 of the Act, the question whether a person has a "continuing inability to work" within s 94(1)(c)(i) is to be approached by considering the issues framed by s 94(2)(a) and (b)(i) as follows:

(a) Does the impairment of itself, considered in isolation from other matters that may influence the claimant's attitude to working, so affect the claimant's capacity for work that it prevents the claimant from doing work available anywhere in Australia, being work of a kind which the claimant is, by reason of existing work skills and experience, capable of performing, without the need for retraining?

(b) Is the impairment of itself sufficient to prevent the claimant commencing, during the next 2 years, retraining of a kind that is available to the claimant and would fit the claimant for a class of work available in Australia that the claimant currently lacks the skills or experience to perform, even if unimpaired?

(ii) If each of those questions is answered in the affirmative, the claimant will qualify for DSP. If only the first question is answered in the affirmative, it will be necessary to consider the issues framed by s 94(2)(b)(ii) as follows:

(a) Is there available training of a kind capable of fitting the claimant within a 2 year period for work which the claimant cannot now perform, for want of the necessary skills or experience, but which the claimant could perform with that retraining?

(b) Is it likely, taking into account only the impediment the claimant's impairment may place on the claimant's ability to complete that training within that period, that the claimant will acquire the skills or experience necessary to fit the claimant for the new class of work within 2 years?

(iii) If each of the questions outlines in (ii) is answered in the affirmative, the claimant will not qualify for DSP. However, if the claimant's impairment is sufficient by itself to prevent the claimant completing an available 2 year retraining course within that 2 year period, the claimant will qualify for DSP."

46. From the date of his arrival in Australia (1970), until about 1981, the Applicant was employed as a process worker or labourer, and his skills and experience in that field were developed in that period. The Tribunal is of the opinion that his impairments would preclude him from working in that environment.

47. From 1981 until 1995, a period of some 14 years, he was self employed, initially in a mixed business and then as a milk bar proprietor. Inevitably, in the view of the Tribunal, the Applicant would have developed sufficient financial and marketing skills to enable him to conduct such businesses. Indeed, it is reasonable to assume that his ability to attain those skills whilst operating the mixed business was sufficient to enable him to consider, and in the event, purchase and conduct the milk bar business. Notwithstanding the time that has elapsed since the sale of the latter business, the Tribunal considers it appropriate to conclude that those skills remain at a sufficient level to enable him to return to employment in those industries, subject to the consideration of whether permanent impairments are such as to preclude work in that environment. In reaching that conclusion, the Tribunal acknowledges the evidence of the Applicant as to the ultimate fate of his milk bar business, and that his financial skills may have had a bearing on that situation.

48. Before considering whether permanent impairments, of themselves, prevent the Applicant from doing work in the abovementioned industries vide the approach by Drummond J in Secretary, Department of Social Security v Pusnjak (supra) (at (i)(a) above), the Tribunal seeks to establish the competency of the Applicant to communicate in the English language. At no stage in the hearing did the Applicant speak in English, all evidence being given through the interpreter. He claimed in evidence that his English skills were inadequate. Yet it is reasonable to assume, in the view of the Tribunal, that he would of necessity have had to conduct business as a self employed businessman over a 14 year period, at least from time to time, in that language. The Tribunal reaches this conclusion in terms of its relevance to resuming his previous occupation or considering other non-heavy labour oriented employment.

49. The Respondent submitted that a number of non-medical factors could make it difficult to attribute an inability to work to permanent impairments. Section 94(2)(a) of the Act is quite specific that " the impairment of itself" must be sufficient in preventing a person either working or undertaking educational, vocational or on the job training. In this matter, and in respect of training only, the Applicant may take advantage of section 94(4) of the Act in respect of the concession in regard to the likely availability of work in his locally accessible labour market, he having turned 55 years of age when the original decision to cancel DSP was taken.

50. In the first limb of the test as defined by Drummond J in Secretary, Department of Social Security v Pusnjak (supra), the impairments that may affect the Applicant's ability to work, it being "of a kind...by reason of existing work skills and experience, (he is) capable of performing, without the need for retraining", relate to the cervical and lumbar spines, cardiovascular condition and psychiatric impairment. A nil points impairment rating has been considered appropriate for the cervical spine condition, given no significant radiological abnormalities. Neither Dr Phillips nor Dr Mahony, orthopaedic surgeon, found any significant abnormalities, and the evidence of the witnesses did not indicate otherwise. The Applicant himself described his cervical condition as painful with an inhibition in his ability to look up. The cardiovascular condition also rated nil points, primarily on the basis of the evidence of Dr Nasser, and the Tribunal finds that neither of these conditions prevent the Applicant from doing work for which he has existing skills and experience.

51. The Applicant's lumbar spine condition has been assessed as being more limiting. The Applicant gave evidence that he could not lift due to his back condition; Dr Phillips assessed this condition as requiring the Applicant to avoid heavy lifting. Dr Mahony makes no recommendations or adverse comment. The evidence of the Applicant and that of Mrs El Mohamad is that he cannot sit or stand for long periods. On balance, the Tribunal considers that within those limitations, the Applicant could return to employment in a retail food outlet.

52. The most significant impairment in respect of the Applicant's ability to return to work for which he has experience and skills, is that of his psychiatric condition. Whilst the Tribunal has assessed his condition as moderate, the evidence in respect of a "continuing inability to work", or otherwise, is limited. The Applicant gave his evidence that he could not work "'even for 10 minutes'", he cannot lift nor stand for long periods, and "generally feels too unwell'". Mrs El Mohamad considered his nervousness and withdrawal precluded him from working. Ms El Mohamad suggested his medical conditions and his poor English would prevent him returning to the workforce. In his Treating Doctor's Report, Dr Ghannoum considered the Applicant could not return to any kind of work for more than two years because of his medical conditions. In two later reports (Exhibits A1 and A3) Dr Ghannoum expressed reservations that the Applicant could return to work in the future. Dr Younan made no assessment, referring only to a "significant impairment in functioning" . On the other hand, Dr Phillips considered him fit for a range of light duties, as did the Respondent.

53. A significant factor in this matter is the environment in which the Applicant had, over a reasonably long period, developed skills and experience. That environment still exists, and in the view of the Tribunal opportunities for employment in retail activities can be quite widespread. Notwithstanding that the Applicant has psychiatric impairments which are identified by difficulties in social interaction, and workplace relations, the Tribunal is of the opinion that he could return to the workforce within a period of two years from October 2001 in an employment environment with which he is familiar, experienced and skilled, and so finds. That is, the Tribunal finds that the Applicant does not meet the criteria on section 94 (2)(a) in respect of a "continuing inability to work'" because of his impairments.

54. The second limb of the test defined by Drummond J is whether the impairment, of itself, is sufficient to prevent retraining, during the next two years, for an alternate class of work vide section 94(2)(b)(i). Should this be a desirable option on the part of the Applicant, as against returning (as an employee) into the retail food workforce, then the Tribunal finds, for the same reasons, that the impairments do not militate against this path. Notwithstanding his lack of formal education, the Applicant has demonstrated over many years, a supervisory and management ability, in an environment entailing a need for reasonable financial and marketing skills, which in the view of the Tribunal, would facilitate his undertaking of retraining if need be.

55. In summary, the Tribunal finds that the Applicant meets the criteria in section 94(1)(a) of the Act in respect of impairments and in section 94(1)(b) in that those impairments are of twenty points under the Impairment Tables, but does not meet the criteria in section 94(1)(c) in respect of a continuing inability to work.

DECISION

56. The decision under review, which affirmed a Centrelink decision to cancel payment of disability support pension, is affirmed.

I certify that the 56 preceding paragraphs are a true copy of

the reasons for the decision herein of Rear Admiral A R Horton AO, Member

Signed: H Sim .....................................................................................

Associate

Date of Hearing 18 June 2002

Date of Decision 16 August 2002

Representative for Applicant Self-Represented

Advocate for the Respondent Ms S Mantaring