El-Khaddam and Secretary, Department of Employment and Workplace Relations

[2006] AATA 1514

Administrative

Appeals

Tribunal

 

WRITTEN REASONS FOR ORAL DECISION [2006] AATA 1514

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2006/549

GENERAL ADMINISTRATIVE  DIVISION		)
Re		MOUDIRA EL-KHADDAM

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT & WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Senior Member Mrs Josephine Kelly & Member Dr Max Thorpe

Date20 December 2006

Date of Written Reasons 18 January 2007

PlaceSydney

Decision The reviewable decision by the SSAT dated 11 April 2006 is set aside and substituted for that decision is the decision that the Applicant is granted Disability Support Pension from 25 February 2005.

…………………………………

Signed Presiding Member
  Senior Member Mrs Josephine Kelly

WRITTEN REASONS FOR ORAL DECISION

1.At the conclusion of the hearing of this matter in Sydney, the terms of the decision made and the reasons for that decision were stated orally. The Respondent requested the Tribunal to furnish a statement in writing of the reasons for its decision pursuant to sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975.

2.The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service, and edited only to the extent necessary to ensure clarity of expression, without in any way changing the reasons.  The edited transcript comprises the reasons for the Tribunal’s decision and is annexed, and is furnished to the Applicant and to the Respondent. 

CATCHWORDS

SOCIAL SECURITY – claim for disability support pension – issue whether psychiatric condition was permanent – held condition was permanent – attributed 10 impairment points – combined with impairment points for other conditions applicant has met criteria in relation to impairment points - disability support pension granted.    

LEGISLATION

Introduction to Schedule 1B, Social Security Act 1991

Presiding Member, Senior Member, Mrs Josephine Kelly  

1.      Mrs El-Khaddam was born in Syria in 1965.  She came to Australia in 1988 when she was sponsored by her husband.  She only finished four years of primary schooling in Lebanon, finishing when she was 9 years old.  She is illiterate in English.  Her husband suffered a car accident about 10 years ago and has, as we understand it, been on a disability support pension (“DSP”) since then.  Before that he had worked for the railways.  Mrs El-Khaddam has been seeking a DSP for herself since 2001.  These proceedings are a review of the Social Security Appeal Tribunal’s (“SSATs”) decision made on 11 April 2006 affirming the decision of an authorised review officer rejecting her claim.

2.      The SSAT found that Mrs El-Khaddam has 15 impairment points under the applicable tables, five points for her neck and 10 points for her back.  These ratings were not in issue in these proceedings.  It is also accepted by both parties that she is relevantly unable to work.  The only issue is whether the psychiatric condition from which she suffers is relevantly permanent and if so what is the appropriate impairment rating.

3.      She lodged her claim on 8 March 2005 although there was a contact in February 2005. The 13-week period therefore runs from the date of her contact or the date she lodged the claim but relevantly for the purpose of these proceedings it is not significant in terms of any difference, so the 13-week period is approximately March-April sometime into May 2005. 

4.      We heard evidence from Mrs El-Khaddam who described the pain she suffers in her neck and back resulting from a fall at her home about eight years ago, headaches which she also suffers and which she has suffered for a long time and which have apparently got worse in the last eight months.  She also described here “tiredness”.  She described how her pain adversely affects her.  She gave evidence about having cancer of the cervix and a consequential radical hysterectomy which has caused her to feel that she is not a natural woman any more.  She had four children at the time of that operation and says she loves children from which we understand that she would have liked to have had more.  Certainly she feels a great loss at having had a hysterectomy.

5.      We find that her literacy and verbal skills in Arabic are limited and take that into account in relation to her ability to describe her symptoms both physical and psychiatric.  Her husband’s accident has resulted, according to her evidence, in lives which were once normal and which are now very different and very difficult for the whole family, especially for her and her husband. We understand that her husband has also had psychiatric treatment.

6.      On the evidence she was first diagnosed by her general practitioner Dr Behary as having depression in 2001.  Since that time he has prescribed an antidepressant which she has apparently taken for a couple of periods on her evidence totalling eight months.  She has also had treatment by a psychologist, Dr Mattar.  In her 2001 claim for DSP she claimed depression.  The SSAT remitted it in 2003 because it considered that the matter had not been properly addressed by decision‑makers.  The matter came back to the SSAT where it was determined that it was not permanent.

7.      In these proceedings we have had the benefit of psychiatric evidence from two consulting psychiatrists.  Dr Dinnen has prepared reports of 13 April 2005 at about the time he saw her and then another report on 17 July 2006 which was based on documentary material which he had been given.  He did not see Mrs El‑Khaddam for that purpose.  Dr Lovric saw Mrs El-Khaddam at the time she wrote her report on 11 November 2005.  Unfortunately Dr Lovric is overseas and could not give oral evidence in these proceedings.  Dr Dinnen was available and came personally to the Tribunal.

8.      In summary, the treatment that Mrs El-Khaddam has had for her depressive condition, which there is no dispute that she suffers, was as follows.  Her GP, Dr Behary provided treatment. In the 3 July 2003 report, T12 page 73 he stated that she was on 20 milligrams of Cipramil per day at that time.  The next reference to such treatment from Dr Behary was at page 94 of the T documents, 4 February 2004, and at that time she was still under regular antidepressant medication and counselling.  In the report of 16 February 2005 at T19 Dr Behary referred to depression, and stated that she was under psychological assessment and on antidepressants.  She had a loss of concentration and her hysterectomy was causing depression also.

9.      In a report at page 227 of the T documents, Dr Behary again on 3 March 2005 stated that she was still under psychological review.  There was an assessment of depression, anxiety and chronic headaches and she was on antidepressant tablets.  So there was a period which the documentary material indicates that Mrs El‑Khaddam was having antidepressant medication, but on her evidence there were breaks, so that in total over that period on her evidence she was taking the antidepressants for eight months. 

10.     We have the material from Dr Mattar, psychologist, at T13 of 9 July 2003.  His opinion was that she needed treatment for two years.  At T18 on 2 September 2004 he noted that she had responded poorly to treatment, needs long‑term treatment for two years, counselling, and we also have her evidence that although that was the last report from Mr Mattar she is still attending him on an ongoing basis although the frequency varies depending on how she feels.

11.     I note Mr Bullock’s point that Mr Mattar does not specify the treatment that he was giving her but as he is a psychologist on the evidence we are satisfied that it is in the nature of counselling. We also note Mr Bullock’s submission that she stopped taking the medication because of bowel problems and headaches which goes to his argument that her condition is not permanent.  However, we take all that into account.

12.     We accept the evidence of Dr Dinnen in this matter.  We found him persuasive.  His explanation of Mrs El-Khaddam’s condition is effectively that it is a consequence of multiple factors including her emotional condition and her physical health which includes her having had the cancer operation.  She is clearly concerned that any pain that she has reflects that the cancer has resumed, although rationally the doctors have told her that there has been no such recurrence. There are also the physical pain of her back injury and the headaches that she described.  Her husband’s physical condition and their living circumstances obviously contribute to her medical condition and we accept Dr Dinnen’s comprehensive evidence about those matters.

13. The issue is whether the condition is permanent. We note the Schedule 1B, in particular the introduction to that schedule, paragraphs 4, 5 and 6 which we have been taken to and for example in paragraph 5:

A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.

14.     We take into account first of all that there has been a diagnosis. We consider on the material as described by Dr Dinnen that the treatment that she has had from her general practitioner, Dr Behary, and from her psychologist, Dr Mattar, has been reasonable treatment, that nothing a psychiatrist such as Dr Dinnen could do could assist her.  Although she may have stopped taking the Cipramil because of the bowel problems she referred to we accept Dr Dinnen’s evidence that such treatment should have had an effect within a shorter period of time than that for which she was taking it.  We also accept that she is fully stabilised relevantly.  Therefore we conclude that her depressive condition is permanent. 

15.     As to how it is described, Dr Lovric and Dr Dinnen have described it in perhaps slightly different terms but there is no real significance or any real distinction. We accept Dr Dinnen’s diagnosis of dysthymic (depressive) disorder with somatic expression.

16.     In relation to the rating we have taken into account Table 6 and although there might be some argument about an appropriate rating of 20 we consider that Dr Dinnen’s rating of 10 is the appropriate rating.  There are moderate and regular symptoms and general functioning with some difficulty.  Dr Dinnen clearly said that it was not a severe depression.  I just note in the table it says:

Eg, noticeable reduction in social contacts or recreational activities.

17.     There has certainly on the evidence been that.  Whereas before she suffered this condition she went out to visit people, her husband’s relatives and friends, now it seems on her evidence that she only sees them when they come to her home.  The next part of the table says:

Or the beginning of some interference with interpersonal or workplace relationships.

18.     Given the accounts of various medical practitioners including Dr Dinnen and Dr Lovric about her presentation and her evidence about her home life, we find that there is certainly interference with interpersonal relationships in this case. 

19.     In relation to “…may have received psychiatric treatment which had stabilised the condition” we do not need to make a finding on that.  She has had appropriate psychiatric treatment; her condition is stabilised.  Whether that psychiatric treatment has contributed to that stabilisation is really not a matter that we need to make a finding or can on the evidence.  It is only necessary to say that her condition is stabilised. 

20.     The table then goes on to say:

…minor effects on work attendance and/or ability to work but the impairment would not prevent full-time work.

21.     We do not think that, that is of significance in relation to this case, but rather it is agreed that she cannot work.

22.     In any event we are satisfied that an impairment rating of 10 points is appropriate and we did not really understand counsel for Mrs El-Khaddam to argue otherwise.  We therefore find that Mrs El-Khaddam has total impairment rating of 25, that she is entitled to the DSP and accordingly the reviewable decision is set aside and substituted for it is a decision that Mrs El-Khaddam is entitled to the DSP.

I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member,
Mrs Josephine Kelly

Signed: Ms Preethi Nimmagadda
   Associate

Date of Hearing & Oral Decision               20 December 2006 
Date of Written Reasons  18 January 2007
Representative for Applicant   Legal Aid Commission
Counsel for the Applicant   Mr Mark Vincent
Representative for the Respondent          Centrelink Legal Services Branch