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

1. 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.

2. 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.

3. 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.

4. In these proceedings, Ms Berthlmawos seeks review of the SSAT decision.

5. 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

6. 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.

7. 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.

8. 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.

9. 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 6(3)(a)).

10. For the purposes of paragraph 6(3)(a), a condition is “permanent” if it is:

    ·fully diagnosed by an appropriately qualified medical practitioner (paragraph 6(4)(a)); and

    ·fully treated (paragraph 6(4)(b)); and

    ·fully stabilised (paragraph 6(4)(c)); and

    ·the condition is more likely than not to persist for more than two years (paragraph 6(4)(d)).

11. The Introduction to each relevant Table states that “[s]elf-report of symptoms alone is insufficient” and “[t]here must be corroborating evidence of the person’s impairment”.

12. Also, the Introduction to Table 5 of the Impairment Determination, which is to be used where a person has a permanent condition resulting in functional impairment due to a mental health condition, states that “the diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made a psychiatrist)”.

13. Ms Berthlmawos contends that she suffers significant functional impairment because a mental health condition (Complex Post Traumatic Stress Disorder [PTSD] and Conversion Disorder [CD]).

14. The Respondent contends that during the claim period Ms Berthlmawos’ mental health condition was not fully treated and fully stabilised, so a rating under the Impairment Tables cannot be applied.

15. Therefore, the definitive issue for the Tribunal to consider is whether, during the claim period, Ms Berthlmawos had an impairment of 20 points or more under the Impairment Tables, and; if so, whether she had a “continuing inability to work”.

    Mental health condition

16. The SSAT recorded a summary of symptoms as reported by Ms Berthlmawos as follows:

    …prior to arrival in Australia from Egypt in August 2012, she was a happy, healthy, recently married and now pregnant woman. However, soon after arrival she began to become frightened by the differences and the strangeness of the appearances of houses and of people in Australia. She denied any traumatic experiences prior to, or after, arrival and she believes her symptoms began gradually, but commenced very soon after her arrival…she…developed frequent headaches, dizziness and shakiness…her memory became poor as did her concentration, and she stated having disturbed sleep…she began having frequent episodes of unconsciousness, usually preceded by a brief prodrome of headache, palpitations, chest pain, dizziness and diplopia…During these episodes she will sometimes pass urine...involuntarily…The attacks are getting more frequent and prolonged…can take one to two hours to resolve...When these episodes occur during the night they are often accompanied by twitching of all four limbs…Following an episode during the day Ms Berthlmawos is usually dazed for hours, and frequently does not recognise either her husband or her child for about 30-45 minutes…episodes occurring between twice a day and twice a week, averaging four to five a week...”

17. I note that at the hearing Ms Berthlmawos and Mr Nakhla confirmed this summary was essentially correct.

18. Mr Nakhla told the Tribunal that his wife has no memory of the described episodes and agreed that they have not been witnessed by anyone else because he does not take her outside the house after these episodes.  

19. The SSAT noted that Ms Berthlmawos’ said that she was able to look after her daughter, able to self-care and do the cooking for the family. Mr Nakhla disputed this account and said that he provides all the care for the family, including his wife.

20. The inconsistency was not explained but he did agree that his wife’s condition had deteriorated over the last twelve months and that her current claimed impairment is at its worst since 2012. He claimed that during this period she also suffered significant deterioration in her physical capacities.

21. Ms Berthlmawos told the Tribunal that her headaches which were initially intermittent are now more constant with little relief even with pain medication and are often associated with vomiting and double vision.

22. Mr Nakhla said that his wife sees a psychiatrist every two months and a psychologist every two weeks but was not able to explain what kind of treatment she was having. In the past, a brief period of antidepressant medication was tried but was ceased because it had no effect and caused adverse side effects. Ms Berthlmawos has not been seen by any other specialist, such as a neurologist, but recently did have a CT scan of the brain.

23. 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

24. 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”.

25. 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.

26. 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”.

27. 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).

28. 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.

29. 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”.

30. Dr Anis again provides extracts from DSM-V but no relevant details in respect of Ms Berthlmawos’ symptoms and level of impairment.

31. 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.

32. Ms Allaw notes that Ms Berthlmawos presented with various psychological symptoms but makes no mention of persistent “headaches” or “convulsions”.

33. 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”.

34. In a letter dated 14 January 2015, Ms Allaw states that Ms Berthlmawos suffers from somatoform disorder which is a “mental illness characterised by symptoms that suggest illness or injury” and that the disorder has been “aggravated lately which made her fall into a severe mood”, so she now meets the criteria of Major Depressive Disorder.

35. Ms Allaw states that Ms Berthlmawos has been treated using Cognitive Behaviour Therapy for management of her emotional disturbances.

36. In a Centrelink Medical Report dated 28 July 2015, Ms Allaw gives a diagnosis of “[d]epression with features of PTSD Depersonalisation and Derealisation”. She lists past treatment as consisting of “psychiatric consultation”; “medications (Antidepressants)”; and, “Cognitive Behavioural Therapy”, with treatment commenced in 2013, with duration of two years. Future treatment is described as “[c]ontinue with CBT”; “[v]isits to psychiatrist”; “[m]edications”.

37. In a Centrelink Medical Report dated 30 September 2014, Dr Ilagan, GP, lists Somatoform Disorder (SD) and complex PTSD as conditions that have significant functional impact.

38. He notes that Ms Berthlmawos’ suffers various symptoms including “episodes of convulsions” and that she is unable to take care of herself but makes no reference to persistent headaches. He refers to treatment with medication but provides no details.

39. 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

40. 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.

41. 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.

42. 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.

43. 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.

44. The report of Dr Ilagan dated 20 July 2015 does not provide any additional assistance.

45. 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.

46. 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”. 

47. 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.

48. 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.

49. 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.

50. It follows that during the claim period a rating under the Impairment Tables cannot be made.

    DECISION

51. 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.

52. The decision under review is affirmed.

I certify that the preceding 52 (fifty -two) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member

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

Associate

Dated 29 February 2016

Date(s) of hearing	27 January 2016
Applicant	In person
Solicitors for the Respondent	Ms Gabrielle Doyle