Berthlmawos and Secretary, Department of Social Services (Social services second review) - [2016] AATA 116

Berthlmawos and Secretary, Department of Social Services (Social services second review) [2016] AATA 116 (29 February 2016)

Division

GENERAL DIVISION

File Number(s)

2015/2984

Re

Suzi Berthlmawos

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal
Dr I Alexander, Member

Date 29 February 2016

Place Sydney
The Tribunal affirms the decision under review.
...........................[sgd].............................................
Dr I Alexander, Member
CATCH WORDS
SOCIAL SECURITY – disability support pension –– Complex Post Traumatic Stress Disorder – Conversion Disorder – whether conditions fully diagnosed, treated and stabilised – whether conditions rated 20 or more points – impairment ratings – continuing inability to work – decision under review affirmed
LEGISLATION
Legislation Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Dr I Alexander, Member
29 February 2016

On the 22 September 2014, Ms Berthlmawos, who is currently 46 years old, lodged a claim for Disability Support Pension (DSP) on the basis that she suffered medical conditions which were having an impact on her ability to function.
Ms Berthlmawos’ claim was rejected by Centrelink, both initially and on internal review, on the basis that she did not satisfy the requirements of s 94 of the Social Security Act 1991 (Cth) (the Act). In particular, she did not satisfy s 94(1)(b) of the Act as her impairment was not 20 points or more under the Impairment Tables.
In a decision dated 19 May 2015, the former Social Security Appeals Tribunal (SSAT) found that Ms Berthlmawos had a total impairment rating of nil points under the Impairment Tables, meaning that she did not satisfy s 94(1)(b) of the Act.
In these proceedings, Ms Berthlmawos seeks review of the SSAT decision.
At the hearing she was self-represented and assisted by an interpreter in the Arabic language. Her husband, Mr Nakhla, also gave evidence on her behalf.
ISSUES
In order to qualify for DSP, Ms Berthlmawos must satisfy the requirements of s 94 of the Act as at the date of the claim or within 13 weeks of lodging the claim, in accordance with the requirements of the Social Security (Administration) Act 1999, that is, between 22 September 2014 and 19 December 2014.
Section 94(1) of the Act provides that a person qualifies for DSP 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)the person has a continuing inability to work as defined by the Act.
The Respondent concedes, and the Tribunal accepts, that Ms Berthlmawos suffers medical conditions that cause impairment and she therefore satisfied s 94(1)(a) of the Act at the time of her claim for DSP.
The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Determination) requires that an impairment rating can only be assigned to an impairment if the condition causing that impairment is “permanent” (paragraph…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Berthlmawos and Secretary, Department of Social Services (Social services second review) [2016] AATA 116
Case: [2016] AATA 116
Decision Date: 29 February 2016

CaseChat Overview and Summary

In the matter of Berthlmawos against the Secretary, Department of Social Services, the applicant, Ms Berthlmawos, sought a review of a decision denying her a Disability Support Pension (DSP) under the Social Security Act 1991 (Cth). The primary issue was whether Ms Berthlmawos had an impairment of 20 points or more under the Impairment Tables, as required by section 94(1)(b) of the Act. The Federal Circuit Court was tasked with reviewing the decision of the Social Security Appeals Tribunal (SSAT) which had affirmed the original decision.

The court examined the sufficiency and reliability of the medical evidence provided to determine if Ms Berthlmawos met the impairment criteria. The evidence included a CT Brain scan, psychiatric evaluations by Dr Anis, and psychological assessments by Ms Allaw. Dr Anis's reports, while diagnosing various mental health conditions, lacked detailed descriptions of Ms Berthlmawos’s symptoms and the impact of these conditions. Similarly, Ms Allaw's assessments did not address certain symptoms such as the recurrent convulsions. The court found the evidence incomplete and unhelpful, particularly concerning the claim period. Despite acknowledging the presence of psychological and physical symptoms, the court was not persuaded that there was sufficient corroborative evidence to conclude that these conditions were fully treated and stabilised during the claim period.

The court concluded that Ms Berthlmawos did not have an impairment of 20 points or more under the Impairment Tables, affirming the decision of the SSAT. The court found the evidence insufficient to support a finding that her mental health conditions were permanent and sufficiently severe during the relevant period. Therefore, the decision denying her DSP was upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The CT Brain (non contrast) performed on 25 July 2015 is reported as showing “a 2mm calcific density immediately posterior and superior to the expected location of the foramen of munro likely to be related to incidental vascular calcification” but no other abnormalities. The radiologist noted that “[I]f there is persistent clinical concern for the patient’s symptoms MRI correlation suggested”.Medical evidence In a letter dated 15 May 2013, Dr Anis, consultant psychiatrist, states that Ms Berthlmawos’ has “recurrent episodes of Somatoform disorder (Physical symptoms not fully explained by a general medical condition)” as well as “recurrent episodes of dissociations that can last up to two hours at a time” and “has been diagnosed with Conversion disorder with recurrent episodes of convulsions”. Dr Anis notes that the initiation of symptoms is “preceded by conflicts or other stressors” and “causes clinically significant distress or impairment in social, occupational or other important areas of functioning” but provides no other details. Dr Anis expresses the opinion that Ms Berthlmawos has “complex Post Traumatic Stress Disorder and recurrent episodes of Conversion Disorder” and “needs long term psychotherapy and rehabilitation to address the unresolved conflicts and improve her coping skills”. In a document dated 9 October 2014, Dr Anis states that Ms Berthlmawos has attended his practice and has “Complex PTSD and Conversion Disorder”. He goes on to provide what appears to be a verbatim extract from the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-V). Dr Anis does not actually provide any other specific information about Ms Berthlmawos and her symptoms apart from a statement that her condition is expected to persist for more than two years and that her treatment is currently psychotherapy. Dr Anis provides a similar document, incorrectly dated 27 July 2017, in which he certifies attendance at his practice on 27 July 2015 and notes that Ms Berthlmawos has “Complex PTSD with Dissociative Reaction in the form of Depersonalization and Derealisation” as well as “Conversion Disorder”. Dr Anis again provides extracts from DSM-V but no relevant details in respect of Ms Berthlmawos’ symptoms and level of impairment. In a letter dated 29 September 2014, Ms Allaw, psychologist, notes that Ms Berthlmawos has been referred by her GP for assessment and management of her psychological condition and has been under the care of the Pain and Trauma Clinic since April 2013. Ms Allaw notes that Ms Berthlmawos presented with various psychological symptoms but makes no mention of persistent “headaches” or “convulsions”. Ms Allaw concluded that Ms Berthlmawos suffers from a “somatoform disorder” and “is struggling to function adequately with her daily needs, where she has become dependent on her husband [sic] assistance at all times” and “is slowly making progress with treatment”.

Decision

Reasons for decision

It follows that during the claim period a rating under the Impairment Tables cannot be made.DECISION For reasons set out above I am satisfied that, during the claim period, Ms Berthlmawos’ did not have an impairment of 20 points or more under the Impairment Tables so that she did not satisfy s 94(1)(b) of the Act and did not qualify for DSP. The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

Dr Ilagan also lists “irritable bowel disease” as a medical condition generally well managed which causes minimal or limited impact but provides no other details. Consideration I find the evidence in this matter to be somewhat problematic, particularly with reference to the claim period. The medical evidence, in my view, can best be described as incomplete and somewhat unhelpful. In his medical certificate of 15 May 2013, Dr Anis makes specific diagnoses but provides little information to explain or support these diagnoses. Dr Anis states that Ms Berthlmawos’ suffers recurrent “episodes of convulsions” which is consistent with evidence before the SSAT and this Tribunal. It would appear that Dr Anis considered that these “convulsions” can be explained as a psychiatric disorder, but provides no evidence that a neurological disorder has been considered and excluded. The later documents provided by Dr Anis describe the relevant DSM-5 diagnostic criteria but do not explain how these criteria apply to Ms Berthlmawos’ condition. In her letters of 29 September 2014 and 14 January 2015, Ms Allaw does not mention PTSD and does not address the “symptoms that suggest physical illness or injury” which support the diagnosis of “somatoform” disorder. In particular, she makes no mention of the recurrent “convulsions” which on the evidence before the Tribunal appear to be a significant problem for Ms Berthlmawos. The report of Dr Ilagan dated 20 July 2015 does not provide any additional assistance. At the hearing, Ms Berthlmawos claimed that her intermittent severe headaches which recently have become more persistent cause her significant distress. The significance of this claim is unclear as the medical evidence does record severe recurrent headache as one of her regular symptoms. I accept that since 2013 Ms Berthlmawos’ has suffered a variety of psychological and physical symptoms. These symptoms have been attributed to mental health conditions and appear to have persisted and have probably increased despite regular psychiatric and psychological treatment. The failure of any favourable response to treatment has not been explained and I note that there has been no apparent consideration of a neurological or medical cause for her physical symptoms, particularly the recurrent “convulsions”. The evidence before the Tribunal suggests that Berthlmawos’ symptoms over the last twelve months have increased and that that currently she has significant impairment because of these symptoms. With some reservations, I accept Ms Berthlmawos’ claimed mental health diagnoses; however, I am not persuaded that there is sufficient corroborative evidence to conclude that during the claim period the mental health conditions were fully treated and fully stabilised. Furthermore, even if I were to accept that, during the claim period, Ms Berthlmawos’ mental health conditions were permanent for the purposes of the Impairment Determination, I am not persuaded that there is sufficient corroborative evidence to make a reasonable assessment of the functional impact on activities involving mental health under Impairment Table 5.

Division	GENERAL DIVISION
File Number(s)	2015/2984
Re	Suzi Berthlmawos
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

Tribunal	Dr I Alexander, Member
Date	29 February 2016
Place	Sydney