Al Assadi and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2008] AATA 1091

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 1091

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/2544

GENERAL ADMINISTRATIVE DIVISION		)
Re		SAADI RASOUL AL ASSADI

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

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

Date8 December 2008  

PlaceSydney

Decision The Decision under review is AFFIRMED  

.................[sgd].............................

M D Allen
  Presiding Member  

CATCHWORDS

SOCIAL SECURITY: Disability Support Pension – Did Applicant’s impairment amount to 20 points or more at Application day or 13 weeks thereafter – requirement that condition must not only be stabilised but fully documented, diagnosed, investigated and treated – psychiatric diagnosis can only be made by a Psychiatrist as opposed to a Psychologist.

…

LEGISLATION

Social Security Act 1991: s94, Schedule 1B

Social Security (Administration) Act 1999: Schedule 2

REASONS FOR DECISION

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

1.      By application made the 18th day of June 2007 the Applicant sought review of a decision made by the Social Security Appeals Tribunal affirming a prior determination that he was not entitled to a Disability Support Pension.

2. The criteria for the grant of a Disability Support Pension are set forth in section 94 of the Social Security Act 1991. That section reads inter alia

“A person is qualified for disability support pension if they have a physical, intellectual or psychiatric impairment which amounts to 20 points or more under the Impairment Tables and has a continuing inability to work.”

3. The Impairment Tables referred to in section 94 SSA above are found at Schedule 1B to the said Act. Pertinently, Schedule 2 to the Social Security (Administration) Act 1999 provides that the qualifications for the grant of a Disability Support Pension are to be assessed as at the date of the claim and for a period of 13 weeks there after.

4. In this matter the Applicants claim was made on 14 August 2006. The period during which any assessment of his impairment can be assessed is, pursuant to Schedule 2 to the Administration Act from 14 August 2006 to 14 November 2006.

5.      Paragraphs 4,5 and 6 in the Introduction to the Tables in Schedule 1B to the SSA 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. The first step is thus to establish a working diagnosis based on the best available evidence. Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating. In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.

5. The condition must be considered to be permanent. 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. A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, in the next two years.

6. In order to asses whether a condition is fully diagnosed, treated and stabilised, one must consider: what treatment or rehabilitation has occurred; whether treatment is still continuing or is planned in the near future;…”

6.      Contrary to the submissions of counsel for the Applicant, the words of paragraph 4 above are “fully documented, diagnosed condition which has been investigated, treated and stabilised”. Counsel attempted to put a gloss on these words implying stabilised alone was a sufficient criteria. In our opinion the words “investigated” and “treated” are not to be ignored.

7.      This is not to say, however, that the treatment must be optimal, all that is required is that it be diagnosed, investigated, treated and stabilised. A difficulty does however arise if further investigations show that the condition has been misdiagnosed.

8.      As this matter developed the issues crystalised into a question of whether the Applicants psychiatric illness had, in the terms of paragraphs 4 of the introduction to Schedule 1B SSA, been fully diagnosed, treated and stabilised.

9.      The Applicant does suffer from physical impairments however, given the reports of Occupational Physicians Dr’s Burns and Dowda, no dispute exists between the parties that the Applicants physical impairments did not attract a rating of 20 points under the Tables in Schedule 1B.

10.     The Applicants evidence was that as a young man in Iraq he obtained treatment from a Psychiatrist in Baghdad. His psychiatric illness had been precipitated by the refusal of Iraqi authorities to permit him to attend university in order to qualify as an engineer, ostensibly because he was not a member of the Ba’ath Party.

11.     In evidence the Applicant stated that he saw the Psychiatrist in Baghdad for 4 years. In the opinion of that Medical Practitioner he had improved, and he prescribed sleeping tablets which apparently the Applicant was able to have prescribed locally.

12.     Later, after marrying, the Applicant went to live in Baghdad and again consulted the same Psychiatrist. He then stopped seeing him as the Applicant together with his family moved to Northern Iraq.

13.     The Applicant and his family came to Australia in 2000 and after a short period of time at a Detention Centre he was granted Refugee Status. Originally he moved to Melbourne but then relocated to Sydney.

14.     After arriving in Sydney the Applicant consulted a General Practitioner, a Dr. Milad who diagnosed “depression” and prescribed medication to help him sleep.

15.     Cross examined, the Applicant stated that he had not seen any Psychiatrist since arriving in Australia until referred to Dr’s Dinnen and Lovric for the purposes of these proceedings. He had obtained a reference firstly to a Mr. Moustapha a Clinical Psychologist and latterly to a Mr Matta, Psychologist.

16. Document T13 of the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 is a report by Mr. Moustapha dated 16 November 2006. In that report Mr. Moustapha states that the Applicant first consulted him on 7 November 2006 and under the heading “Prognosis” states that the Applicant

“describes symptoms consistent with DSM-IV Diagnosis of Dysthymia”

adding:

“he needs long term sessions of clinical consultations…”

17.     At the request of his solicitors, the Applicant was referred to Psychiatrist Dr. Dinnen. In his report of 16 April 2008, the history taken by Dr. Dinnen records that the Applicant consulted a doctor in Lakemba in 2000 and was given tablets for stress and for sleep. Dr. Dinnen also obtained a history of the Applicant attending psychologists at Bexley and at Blacktown. Dr. Dinnen then goes on to state at page 6 of his report;

“Psychologists are not qualified to make medical diagnoses.

The long history would suggest that any form of treatment at this stage would be at best palliative, directed at helping him to make a better adjustment under the circumstances. There is no possibility of cure in my view, with or without treatment. However treatment which is now being provided will certainly improve his long term quality of life and adjustment.

In terms of diagnosis I believe this is the first time his psychiatric condition has been diagnosed.”

18.     In a later report dated 20 August 2008 in reply to the report of Dr. Lovric, Psychiatrist, Dr. Dinnen states

“Dr. Lovric concurred with the diagnosis that I made of chronic depressive (dysthymic) disorder”.

He further opined that he was “not less optimistic or more pessimistic than Dr. Lovric (regarding treatment and ultimate ability to work) but more realistic.”

19.     In evidence Dr. Dinnen reiterated that his opinion was that these had not been a formal diagnosis until he had seen the Applicant and that any treatment had been intermittent.

20.     A detailed history of the Applicants prior treatment was obtained by Dr. Lovric. In her report of 18 June 2008, she states inter alia:

“ Mr Al Assadi told me that when he first came to Australia he was diagnosed by an Egyptian doctor, Dr. Milad in 2000, to be suffering “depression, always feeling unhappy, bored, tired, lethargic” and was prescribed a medication the name of which he could not recall, which he took for a year and then ceased. He told me “I felt the medication was making me unwell” but “then I took it again”

It is difficult to ascertain the treatment Mr. Al Assadi has received subsequently. He initially told me he still took diazepam regularly, but later in the interview stated the he had not had any diazepam for approximately 3 months and was now taking the medication, oxazepam, prescribed by his current General Practitioner Dr. Al Kurdi, who he has been seeing for more than a year. He initially told me that the diazepam assisted him “when I am feeling bored and restless in the day” and also “at night when I don’t sleep” and he took approximately 2mg four times per week. He explained that he had been on previous anti depressant medications including Sertraline and showed me a letter written by his General Practitioner, Dr. Al Kurdi dated 18 March 2008 which stated that he had previously been on anti depressant medications including Citaloprim, Escitalopram and Venlafaxine, each of which Mr Al Assadi told me he took for less than a month. He had been prescribed most of these by his previous General Practitioner, Dr Hassam. He was now taking Fluoxetine, half a tablet every second day and has done so for about the last 8 months.”

At page 14 of her report Dr. Lovric states

“I note that the medication that he is currently taking has been prescribed at half the therapeutic dose and he is only taking it every second day. He has never seen a Psychiatrist. He sees two Psychologists and it appears that he has been treated with cognitive behavioural therapy, which has not of significant benefit to date.”

adding:

“I would not see the mainstay of his treatment to be medication, but I am unconvinced that he has had adequate therapeutic trials of medication at appropriate doses for appropriate durations of time, and from the medical records of the Bankstown pharmacy it appears that he was first prescribed anti depressant medication in 2006, Sertraline…. I think it unlikely that Mr Al Assadi’s condition was adequately diagnosed at the date of rejection of his Disability Support Pension in September 2006 and it does not seem from the account that he gave me that his condition was stabilised or adequately treated at that time.”

21.     That the Applicants psychiatric condition was not fully treated and diagnosed within 3 months from the Application day was also the opinion of Occupational Physician Dr. Burns in his report to the Applicants solicitors.

22.     It was submitted by the Applicant that his psychiatric condition was permanent in that it has been present since his rejection from university study in Iraq. It was also permanent in that it will, in the light of current evidence, persist for 2 years. Further, it was submitted, the condition was stabilised as it was unlikely there would be any significant functional improvement with or without reasonable treatment within the next 2 years.

23.      Just what illness was diagnosed whilst the Applicant was resident in Iraq is unknown. The Applicant stated, however, that for 2 years when in Northern Iraq, prior to leaving that country, he did not undertake any treatment for any psychiatric illness.

24.     It seems that he was diagnosed in 2000 by a General Practitioner as suffering “depression” although any treatment for that condition was not continued.

25.     Whatever treatment the Applicant has had up until finally consulting a Psychiatrist has been sub optimal. As pointed out by Dr. Lovric, the Applicant had not been properly diagnosed until consulting Dr. Dinnen, and even now the medication prescribed by his General Practitioner is at half therapeutic dose and he was also taking it only every second day.

26.     Additionally, the Applicant was taking (incorrectly) diazepam and oxazepam  when he was “bored and restless in the day”. As pointed out by Dr. Lovric, the Applicants reported symptoms of lethargy and fatigue would be worsened by the chronic use of benzodiazepine medication which sedates and also creates confusion and memory impairment and should be avoided during the daytime. The clear inference from Dr. Lovric’s report is that the Applicant should be weaned off using these particular drugs in this manner.

27.     Given the psychiatric evidence in this matter we find that as at the Application day, the Applicants psychiatric illness had not been fully documented much less investigated, treated and stabilised. Additionally, as pointed out by Dr. Dinnen:

“in terms of diagnosis I believe this is the first time his psychiatric condition has been diagnosed.”

And as Dr. Dinnen pointed out that current treatment, although palliative, will improve the Applicants quality of life and adjustment.

28.     As the Applicants psychiatric condition had not been fully diagnosed, treated and stabilised, it is not possible to assign a rating for impairment caused by the disease as at the Application day or in the period of 13 weeks thereafter.

29.     This being so, the degree of impairment suffered by the Applicant at the relevant time did not amount to 20 points or more under the Impairment Tables, therefore he did not meet the criteria for the grant of Disability Support Pension.

30.     The Decision under review is AFFIRMED.

I certify that the 30 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, Member

Signed: [sgd]...................................................................................
M. Corcoran
Associate

Date/s of Hearing  21 November 2008
Date of Decision  8 December 2008
Counsel for the Applicant         Mr C Colborne                 
Solicitor for the Respondent     Ms. J. Maclean