Abdel-Sayed and Secretary Department of Employment and Workplace Relations

[2006] AATA 377

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 377

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/222

GENERAL ADMINISTRATIVE DIVISION		)
Re		SUZAN ABDEL-SAYED

Applicant

And SECRETARY DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Senior Member M D Allen
Dr M E C Thorpe, Member

Date1 May 2006

PlaceSydney

Decision The decision under review is set aside and the Tribunal substitutes in lieu thereof its decision namely that the Applicant Suzan Abdel-Sayed is entitled to a Disability Support Pension as and from the 12^th day of March 2004.

(Sgd) M.D. ALLEN

..................................................
  Presiding Member

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – Applicant suffers from a psychiatric disorder as well as fibromyalgia – whether the Applicant has a continuing inability to work – Tribunal finds Applicant does meet the criteria for DSP – decision under review set aside and Tribunal substitutes in lieu thereof its decision that the Applicant is entitled to a DSP as and from the 12^th day March 2004.

Social Security Act 1991 – s 94, Schedule 1B

Social Security Administration Act 1999 – s 42, Schedule 2

REASONS FOR DECISION

1 May 2006	Senior Member M D Allen
Dr M E C Thorpe, Member

1.      By application made the 21^st day of February 2005, the Applicant sought review of a decision by a Social Security Appeals Tribunal (“SSAT”) made the 24^th day of January 2005, affirming a prior determination that she was not entitled to a Disability Support Pension (“DSP”).

2. The qualifications for the entitlement to a DSP are set out in section 94 of the Social Security Act 1991 which reads inter alia:

“Qualification for disability support pension

(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

…

(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.

(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.

(4) …

(5) …”

3. Section 94 is further qualified by s 42 and Schedule 2 to the Social Security Administration Act 1999:

“Start day

For the purposes of the social security law, a person’s start day in relation to a social security payment or a concession card is the day worked out in accordance with Schedule 2.

…

Schedule 2  

Rules for working out start day

4 Start day—early claim

(1) If:

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

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

(c) assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and

(d) the person becomes so qualified within that period;

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

4.      The Applicant applied for the DSP on 12 March 2004. Therefore the relevant date to consider her application is 12 March 2004, or for a period of 13 weeks thereafter.

5.      The Applicant was born in Egypt to Coptic Christian parents on 13 December 1953. She was educated to secondary school year 12 equivalent and then worked as an accountant having obtained a Diploma in Commerce. Those qualifications are however not recognised in Australia. She married her husband who had previously migrated to Australia when she was 27. The marriage was not a happy one as the husband opposed her working, although she wanted to and also discouraged her from learning English. The pattern that emerges from the Applicant’s own evidence and in the histories obtained by Drs Dinnen and Lovric is that of a possessive and domineering man who belittled the Applicant in front of their children and to their friends. As the Applicant said in evidence she had constant problems with her husband and the relationship had never been enjoyable.

6.      In 1992 or 1993 the husband retired from work on medical grounds and problems within the marriage exacerbated. On 1 September 2001 the Applicant was assaulted at her place of worship by her husband’s brother. Her husband then left the matrimonial home. He then adopted a pattern of returning to the home one night a week but sleeping apart from the Applicant. In 2003 they divorced but the Applicant, because of her religious beliefs, does not regard herself as divorced but only separated.

7.      There is evidence, which we accept, that there have been threats made to the Applicant by her former husband and his relatives. For this reason the Applicant has a degree of anxiety which manifests itself in various ways, e.g. she becomes apprehensive if she hears a car draw up outside her home at night.

8.      Currently the Applicant obtains considerable solace by attending her church, a Coptic Christian Parish at Punchbowl. She has acquaintances at the church but has one close female friend who helps her with shopping and other excursions. She is also dependent upon another friend, Mr Nakhla, who she describes as “like an uncle”.

9.      The Applicant also complains of pain in her shoulders and arms. There is some conflict in her evidence as to how severe those problems are.

10.     For her part, the Applicant says that she noticed pain in her arms in the late 1990’s. A medical practitioner used to inject cortisone into both elbows. She takes analgesics daily for the pain which is there all the time. If she does not take analgesics she cannot sleep.

11.     The Applicant said she has difficulty performing household tasks. Her daughters do the vacuuming. Her daughters have divided the household tasks between them and they carry out these tasks. If her daughters are busy she will sometimes clean but gets tired physically.

12.      Mr Nakhla said that before the divorce the Applicant did all the housework as her husband expected it of her. Currently she still does housework but not the heavy tasks. He stated that the Applicant is at all times appropriately dressed and groomed.

13.     The Applicant’s day to day activities are constrained. She remains in bed from about 4pm to 8am but sleeps for only 3 hours. During her sleep she has nightmares and there is evidence that she grinds her teeth.  Her evidence in chief was that apart from church, she does not go anywhere else but she told Dr Lovric that she and her female friend go shopping once a week “when she pressures me”. The Applicant drives a motor vehicle. She told Dr Lovric that she is able to do the cooking and most of the household chores. This is in direct contrast to what she told Dr Dinnen. As stated previously, she is anxious as a result of threats made to her by her former husband and his family.

14.     The Respondent, in its Statement of Facts and Contentions, concedes that the Applicant did suffer from a psychiatric illness. Both Dr Dinnen, Psychiatrist for the Applicant and Dr Lovric, Psychiatrist for the Respondent, agreed that the correct diagnosis for the Applicant’s condition was that of a Dysthymic Disorder.

15.     Where Drs Dinnen and Lovric differed in their opinions was whether the condition had been fully treated and stabilised as at the date of the claim.

16.     The Applicant had been referred by her General Practitioner to a Dr Attia-Soliman. In a report to the Applicant’s general practitioner dated 30 December 2003, Dr Attia-Soliman diagnosed chronic depression and prescribed medication. She commented :

“This lady needs a chance to ventilate her feelings in a supportive environment… I will monitor her progress during supportive psychotherapy sessions.”

17.     An addendum to that report dated 31 May  2005 reads inter alia:

“Initially she improved but relapsed later. Mrs Abdel-Sayed has continued to consult me monthly since then. Her condition deteriorated. She had frequent panic attack {sic} couldn’t sleep, isolated herself, wished to be dead but her faith/children prevented her. She grind  {sic} bit her teeth while asleep has not been able to do her housework children helps i.e. she suffers from chronic depression permanent and continuous and permanent disability because of continued family conflict.”

18.     Dr Lovric opined that the Applicant had never been referred to a psychiatrist or even a psychologist and that she would benefit from cognitive behaviour therapy. Dr Dinnen on the other hand considered that Dr Attia-Soliman had training and expertise in psychiatry and was competent to carry out appropriate treatment. We note that Dr Attia-Soliman’s letterhead refers to her being a Fellow of the Australian College of Psychological Medicine.   

19.     In particular, Dr Dinnen pointed out that psychological therapy depends very much upon the relationship between the patient and the therapist and it would be difficult to find another therapist with whom the Applicant could relate to the extent she has with Dr Attia-Soliman, who is also an Arabic speaker.

20.     Having had the benefit of Drs Dinnen and Lovric give conjoint evidence, we are more convinced by Dr Dinnen that the Applicant’s current treatment is appropriate and that a more rigorous psychotherapy course as envisaged by Dr Lovric would be of marginal benefit to the Applicant.

21. Schedule 1B to the Social Security Act 1991 the Tables for Assessment of Work Related Impairment refers at paragraph 4 to a condition being assigned a rating only after it has been diagnosed, investigated, treated and stabilised. Paragraph 5 requires the condition to be permanent. Paragraph 5 reads:

“Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years.”

22. Paragraph 6 of the Introduction to Schedule 1B then goes on to provide that in order to assess whether a condition has been fully diagnosed, treated and stabilised, consideration must be given to what treatment or rehabilitation has occurred and whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next two years. “Reasonable treatment” is defined as:

“treatment that is feasible and accessible i.e. available locally at a reasonable cost and can reliably be expected to effect substantial improvement.”

23.     The clauses of the introduction to the Guide do not state that the treatment has to be the optimal treatment available.

24.     In this matter the Applicant has been receiving treatment by a suitably qualified medical practitioner with whom she can relate by reasons of language and background. We do not accept that a more rigorous intervention would be more successful and thus find that the Applicant’s condition as at the application day was stabilised, treated and was permanent.

25. Table 6 to Schedule 1B refers to Psychiatric Impairment. The following ratings are applicable:

TEN     Moderate and regular symptoms and generally functioning with some       difficulty. (e.g. 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. (e.g. Short periods     of absence from work).

TWENTY Psychiatric illness or disorder with either serious symptomatology and OR       impairment functioning that requires treatment by psychiatrist (e.g. frequent      suicidal ideation, severe obsessional rituals, frequent severe anxiety attacks,          serious anti-social behaviour, diagnosed psychotic illness with continuing       symptoms). There is significant interference with interpersonal or workplace       relationships with serious disruption of work attendance or ability to work.

26.     Although Dr Dinnen opined that the Applicant came within the criteria for a rating of 20, we disagree. The Applicant did state that at times she wished she was dead but that her religion forbade suicide, but there is no indication of frequent suicidal ideation. Likewise there is no evidence of severe obsessional rituals, frequent severe anxiety attacks, serious anti social behaviour or psychotic illness. At the same time we consider that the criteria for the rating of TEN are exceeded by the Applicant’s symptomatology. If we were free to do so we would give the Applicant a rating of between 10 and 20 but as that course is not permitted by the Table, we find that the appropriate rating is TEN.

27.     A report by Ms Shand, Psychologist, dated 6 April 2006 refers to the Applicant suffering a post traumatic stress disorder (“PTSD”). This diagnosis was not made by either of the psychiatrists who gave reports and evidence in this matter.

28.     Ms Shand also refers to a diagnosis of PTSD by Dr Attia-Soliman dated 1 July 2004. That diagnosis is not reproduced in Dr Attia-Soliman’s addendum report of 31 May 2005, nor is there any entry for 1 July 2004 in Dr Dr Attia-Soliman’s clinical notes. Given the opinions of Dr Dinnen (who is, to the Tribunal’s knowledge, very familiar with and aware of PTSD) and Dr Lovric, we are not satisfied that the Applicant does suffer nor has ever suffered from a PTSD.

29.     The Applicant also suffers from “fybromyalgia”. In a report dated 20 December 2004 to the Applicant’s General Practitioner Dr Johnson, Rheumatologist states:

“As you know, I have seen her a number of times in the past dating back to 1999 when she had obvious soft tissue problems. These principally affected her lateral epicondyles bilaterally. In January of this year she presented with pain around the right shoulder girdle and to a lesser extent the left which have been present for some months. This was poorly localised pain with some muscle tenderness. At the time she was suffering from significant stress.

Today, on review it is quite apparent that she fits the diagnosis of fibromyalgia. She has multiple tender and trigger points including the mid trapezius, upper cervical, medial border of each scapular, si joint, bilateral lateral epicondyles and the area over each greater trochanter. She has a poor sleep pattern which has been aided to some extent by sedatives and anti-depressants and according to the patient and a relative who accompanied her she is still suffering from depression following her divorce.

From a functional sense she does little. She requires help with the shopping, her daughters do all the household chores including cleaning and maintenance. Mrs Abdel-Sayed does some cooking.

Clinically there are no other signs. She has good muscle strength and bulk. Her joints are clinically normal and I think there is no doubt that fibromyalgia is the correct diagnosis.

She clearly has a significant degree of disability including quite marked fatigue which is produced by a combination of I suspect her depression and its treatment. She’s uses (sic) analgesics and Mobic obtaining only marginal relief. She has difficulty exercising which can be quite important in this condition because of her fatigue and pain.

On today’s assessment she has a significant degree of disability. As you know, in these conditions such problems can be longlasting.”

30.     Fibromyalgia is defined by the American Medical Association as “diffuse widespread pain with the presence of tender points on examination”. Non defining symptoms include severe fatigue, headaches, insomnia, chest pains and psychiatric disturbance (Disability Evaluation 2^nd Edition p.596). 

31. Table 20 of Schedule 1B states it can be used for miscellaneous conditions e.g. disorders with chronic fatigue (including Chronic Fatigue Syndrome) or pain and hypertension. The American Medical Association in its publication Disability Evaluation groups “Chronic Fatigue Syndrome” with “fybromyalgia” in the Chapter entitled “Functional Somatic Syndromes”. We accept therefore that Table 20 is an appropriate table pursuant to which impairment from fibromyalgia can be assessed.

32.      Having regard to the evidence of the Applicant and Dr Johnson’s report, we find that an assessment of FIFTEEN is appropriate for the condition as the criteria for that rating under Table 20 reads:

“Moderate to severe symptoms which are more distressing but prevent few everyday activities. Self-care is unaffected and independence is retained. Symptoms may have mild to moderate impact on ability to perform or persist with work-related tasks and/or attend work. Full-time work would still be possible.”

33.     As the Applicant has an impairment total of 25 points under the Impairment Table, it is not necessary to discuss other conditions affecting the Applicant namely Gastro Oesophageal Reflux and Thyroid Disease.

34.     A work capacity report was obtained by the Respondent. Although that report speaks as to the Applicant’s current functioning, we are satisfied that the level of ability to engage in employment has not deteriorated since the application day. The report’s conclusions read:

“Due to the high level of dependence the customer has on family and friends for everyday activities the customer does not appear to be capable of returning to fulltime employment within 24 months.”

35.     In particular, the report notes:

“Work capacity restricted due to Fibromyalgia, Dysthymic Disorder and Posttraumatic Stress Disorder. This is evidenced by their (sic) regular panic symptoms, low mood, insomnia, lack of energy, lower back pain with prolonged postures, pain in bilateral arms with prolonged heavy lifting or heavy tasks. Symptoms would restrict the customer’s capacity to return to occupations for which they are suitably qualified. Further Medical/Psychological management unlikely to result in improvement in level of functioning or work capacity within two years. (NB: Customer’s qualifications as an accountant are not recognised in Australia, and as such she would need to gain qualifications in this role).”

The report then goes on to say:

“Customer would NOT benefit from mainstream/on the job retraining for the following reasons: mood disorder, lower back pain, posttraumatic stress disorder, fibromyalgia bilateral arms. This is because conditions impact on customer’s ability to sustain daily activities and she requires support to manage daily tasks.”

That report also noted:

“Disability specific assistance would not assist the Applicant’s capacity for work.”

36.     We agree with the above assessments. Apart from language difficulties the Applicant remains fearful due to threats from her former husband and due both to her psychiatric condition and fybromyalgia, she is fatigued during the day. In her latest report, Dr Attia-Soliman noted a relapse in the Applicant’s condition.  Also Dr Dinnen in his report stated:

“As described at interview and by her treating doctor, she has impairment of memory and concentration, sleep disturbance, chronic fatigue, tearfulness, lack of motivation,  inability to cope, aches and pains, panic attacks, ongoing anxiety, suicidal thinking.”

Given this range of symptoms and signs, the ability of the Applicant to undertake educational or vocational training or to return to the workforce is, in reality, nil.

37. There was no dispute between the parties and we so find, that apart from the degree of impairment and the question of a continuing inability to work, the Applicant met all the other qualifications for DSP as set out in ss 94 (1) Social Security Act 1991.

38.     For the reasons above therefore, we consider that the Applicant does meet the criteria for the grant of a DSP. The decision under review will therefore be set aside and the Tribunal substitutes in lieu thereof its decision namely that the Applicant is entitled to a DSP as and from the 12^th day of March 2004.

I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen and Dr M E C Thorpe

Signed:         (E.Pope)           .....................................................................................
  Associate

Dates of Hearing  6 February 2006 and 7 April 2006
Date of Decision  1 May 2006
Counsel for the Applicant         Dr K Sant
Solicitors for the Applicant        Legal Aid Commission

Counsel for the Respondent     Mr G Elliott

Solicitor for the Respondent     Australian Government Solicitor