El-Mohamad and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2010] AATA 988
•9 December 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 988
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/1284
GENERAL ADMINISTRATIVE DIVISION ) Re AMAL EL-MOHAMAD Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Ms N Isenberg, Senior Member and
Dr J D Campbell, Member
Date9 December 2010
PlaceSydney
Decision
The decision under review is set aside and in substitution therefor the Tribunal decides that Ms El-Mohamad had, at the date of application for DSP, an impairment rated at 30 points. Such impairment resulted in a continuing inability to undertake any work for at least 15 hours per week in the next two years. Ms El-Mohamad, therefore, is entitled to DSP as at the date of her application.
......................[sgd]........................
Ms N Isenberg
Senior Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – applicant qualified for disability support pension at date of claim or within 13 weeks of date of claim – applicant had permanent depression, anxiety and chronic pain – appropriate to allocate impairment points - applicant had continuing inability to work – decision under review set aside
Social Security Act 1991 (Cth) s 94, sch 1B
Social Security (Administration) Act 1999 (Cth) sch 2 cl 4
Administrative Appeals Tribunal Act 1975 (Cth) s 37
Freeman v Secretary, Department of Social Security (1988) 19 FCR 342
Harris v Department of Employment and Workplace Relations (1997) 158 FCR 252
Re Stojanovic and Secretary, Department of Employment and Workplace Relations (2007) 94 ALD 507
Re Tlonan and Department of Social Security (1997) 24 AAR 467
REASONS FOR DECISION
9 December 2010 Ms N Isenberg, Senior Member and
Dr J D Campbell, MemberBACKGROUND
1. On 13 October 2008, Ms El-Mohamad applied for Disability Support Pension (DSP) but her application was refused. That decision was affirmed on internal review, and by the Social Security Appeals Tribunal on 13 March 2009. Ms El-Mohamad now seeks review of that decision.
ISSUES
2. The issue for the Tribunal to determine is whether Ms El-Mohamad was qualified for DSP on the date of claim (13 October 2008) or within 13 weeks of the date of claim.
LEGISLATION
3. The qualification criteria for DSP are set out in section 94 of the Social Security Act 1991 (Cth) (the Act). To qualify for DSP, section 94 requires Ms El-Mohamad to:
have a physical, intellectual or psychiatric impairment;
an impairment rating of at least 20 points under the Impairment Tables; and
a continuing inability to work because of the impairment(s).
Relevant Period for Consideration of Entitlement to DSP
4. Schedule 2, clause 4 of the Social Security (Administration) Act 1999 (Cth) provides that the relevant time to consider a person’s entitlement is during the 13 weeks after the claim. Therefore, we had to consider if Ms El-Mohamad was entitled to the DSP by 12 January 2009.
CONSIDERATION OF THE EVIDENCE AND FINDINGS
5. In addition to documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975 (Cth) (the T-documents), further documents were tendered.
6. The medical evidence is contained in various reports as follows:
·Job Capacity Assessment Summary and Report dated 2 June 2010 by D Titmuss (Registered Psychologist)
·Medical report dated 12 May 2010 by Dr K Lovric (Consultant Psychiatrist)
·Medical certificate dated 11 May 2010
·Psychiatric Report dated 5 March 2010 by Dr H Alhajali (Consultant Psychiatrist)
·Medical certificate dated 22 February 2010
·Medical Report dated 8 February 2010 by Dr E Abdel-Megeed (General Practitioner)
·Radiology Report dated 27 January 2010 by Dr C Wong
·Medical Assessment dated 30 November 2009 by Dr P L Harvey-Sutton (Consultant Occupational Physician)
·Medical certificate dated 14 September 2009
·Treating Doctor’s Report dated 13 October 2008 by Dr E Abdel-Megeed (General Practitioner)
·Job Capacity Assessment Report dated 27 October 2008 by E Marcos (Registered Psychologist)
7. In the treating doctor’s report in support of Ms El-Mohamad’s claim, her GP, Dr Abdel-Megeed, listed her conditions as: depression – anxiety disorder; and chronic back pain. Other conditions were listed as causing minimal interference: sleep apnoea; diabetes type-2; hypertension; obesity; hyperlipidemia and reflux oesophagitis.
8. We asked Ms El-Mohamad to specifically comment on her conditions as at the date of her application, and not her current symptoms. This approach is consistent with that in Freeman v Secretary, Department of Social Security (1988) 19 FCR 342.
9. Ms El-Mohamad gave evidence as did Dr K Lovric (Consultant Psychiatrist).
Did Ms El-Mohamad by 12 January 2009 have a physical, intellectual or psychiatric impairment of 20 points or more?
Depression/anxiety: Is it permanent?
10. Ms El-Mohamad gave evidence that she has lost interest in leisure and social activities, suffers relationship difficulties, feels tired and exhausted, has sleeping difficulties and experiences difficulty in performing normal daily activities.
11. She is receiving treatment (drug therapy and psychotherapy) for the disorders from Dr H Alhajali (Consultant Psychiatrist), but shows few signs of improvement. Dr Alhajali provided a report dated 5 March 2010. In the report, he wrote that he first saw Ms El-Mohamad on 9 May 2009 and had seen her between then and only 27 February 2010. He observed that in recent months she experienced difficulty performing usual daily activities, including being able to complete house work and take care of her children. She had lost interest in most leisure activities she used to enjoy. She had been prescribed Citalopram by her GP and Dr Alhajali increased the medication, because no improvement was occurring and then changed her medication to Cymbalta. He observed that she was in the process of organising an appointment with a private psychologist to commence ongoing counselling and therapy. Further, he observed that she had been receiving treatment for more than six months but with minimal improvement in her depressive and anxiety symptoms, and therefore he thought it was likely that she would continue to experience long-term residual symptoms. He thought that her ability to function on a day-to-day basis would either continue at the same level or decline. He described her condition as resistive to different treatment modalities.
12. Dr K Lovric (Consultant Psychiatrist), examined Ms El-Mohamad at the request of the Respondent in May 2010. Dr Lovric did not consider Ms El-Mohamad to suffer major depressive disorder but instead diagnosed chronic dysthymia. She considered her prognosis to be quite poor, and thought it unlikely that Ms El-Mohamad would ever work again as a result of a combination of her psychosocial problems, medical problems, negative mindset and low-grade depressive symptoms. She found Ms El-Mohamad to be profoundly somatically focused, and that this was unlikely to change with any particular psychological or psychiatric treatment.
13. The Introduction to the Tables for the Assessment of Work-Related Impairment for Disability Support Pension (the Impairment Tables), contained in schedule 1B of the Act, governs the way the Impairment Tables are to be applied. Paragraphs 4, 5 and 6 of the Introduction explain the extent to which adequacy of treatment and the stability of an applicant’s condition are particularly relevant considerations in the application of the Impairment Tables. Those paragraphs (with emphasis added) are in the following terms:
…
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, within the next 2 years.
6. In order to assess 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;
·whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years.
In this context, reasonable treatment is taken to be:
·treatment that is feasible and accessible ie, available locally at a reasonable cost;
·where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient.
It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment, unless that treatment has associated risks or side effects which are unacceptable to the person. In those cases where significant functional improvement is not expected or where there is a medical or other compelling reason for a person not undertaking further treatment, it may be reasonable to consider the condition stabilised.
In exceptional circumstances, where a condition was considered not stabilised and a permanent impairment rating not assigned because reasonable treatment for a specific condition has not been undertaken, the medical officer should:
·evaluate and document the probable outcome of treatment and the main risks and or side effects of the treatment; and
·indicate why this treatment is reasonable; and
·note the reasons why the person has chosen not to have treatment.
…
14. The Full Federal Court approved the Federal Court decision of Gyles J in Harris v Department of Employment and Workplace Relations (1997) 158 FCR 252 concerning entitlement to DSP. One of the issues in that matter was whether the applicant’s condition - chronic pain - had been treated and stabilised. Gyles J made the following comments at 257 [17]:
It is troubling that an applicant presenting with a long standing diagnosed condition being treated in a conventional fashion should be rejected for a benefit, not because of any identified defect in diagnosis or treatment but, rather, upon the basis that further examination by another medical practitioner or other practitioners might suggest some other diagnosis or some other treatment. My initial impression, having read s 94 of the Social Security Act 1991 and the Tables, was that the AAT should not have rejected the application on that basis… I remain of that view.
15. The test for whether a condition is treated and stabilised depends primarily on whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next two years. “Likely” means a “reliable expectation” of significant functional improvement: Re Stojanovic and Secretary, Department of Employment and Workplace Relations (2007) 94 ALD 507 at 513 to 515).
16. In this matter Ms El-Mohamad’s GP and the psychiatrists, Dr Alhajali, and Dr Lovric, were all pessimistic as to Ms El-Mohamad’s prognosis. She has been under the care of her GP for the condition ‘for years’ and was treated with antidepressants. Dosage has been increased and the medication has changed. Despite that, the condition has not improved. We find that her condition had, by the relevant date, been extensively treated: Re Tlonan and Department of Social Security (1997) 24 AAR 467
17. We find that the condition should be considered permanent at the date of claim.
Depression/anxiety: impairment rating
18. The evidence is clear that the condition is debilitating: Dr Alhajali described Ms El-Mohamad’s lack of motivation to attend to most activities of daily living. Ms El-Mohamad’s own evidence was of not liking to see people but, rather, remaining on her own. She does not go out and does not even attend to the family shopping or cooking or other domestic duties. She does not even shop for new clothes for herself and; instead, she buys clothes from overseas or has someone buy clothes for her. She never goes to her children's school.
19. We find the appropriate descriptor for her condition is as follows:
TENModerate and regular symptoms and generally functioning with some difficulty. (eg. 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. (eg. short periods of absence from work).
20. On balance, we consider that it is appropriate to allocate 10 impairment points in respect of her psychiatric condition under Table 6.
Chronic pain
21. In the treating doctor’s report Dr Abdel-Megeed wrote of Ms El-Mohamad back pain - bilateral low back spondylitis, both elbows and carpal tunnel syndrome in both wrists, and frozen right shoulder. He said she was suffering from chronic lower back pain for years with restricted movements of the back. He also observed her constant pain in both elbows secondary to tennis elbow. She complained of pins and needles in the fingers of both hands secondary to carpal tunnel syndrome. He also observed restricted movement of the right shoulder on abduction and internal rotation.
22. At the hearing Ms El-Mohamad said that even if she does ‘nothing’ she has pain in her hands shoulder and elbow from which she takes Panadol 'osteo' and also Tramadol morning and evening. As to walking, she said that she could only manage to walk a maximum of 10 minutes because of pain in her lower back. Any more than that causes her to "cry and scream" with pain. She said she is only able to stand for a very short period of time. She is able to sit for about half an hour at a time and although this still causes pain this is managed by medication. Ordinarily she prefers to lie down.
23. She was cross-examined about a trip she took to Lebanon last year for several months. She agreed that the flight was of about 24 hours’ duration, but said that she had managed her pain during that time by taking sleeping tablets. Although she was reported as having enjoyed a holiday, she said this was because she had not seen her sister, who had become ill, for 14 years, and to that extent, it was enjoyable.
24. She was also cross-examined at length about her reliance upon her children in attending to household chores. While we observed there has been some inconsistency in her evidence from time to time, overall we found her evidence to be broadly consistent, especially as to her ongoing reliance on pain medication and the assistance of others.
25. Dr P L Harvey-Sutton (Consultant Occupational Physician), reported on 30 November 2009 that she had reviewed an MRI of Ms El-Mohamad’s lumbar spine, which showed facet joint degeneration at L5/S1. On examination, Ms El-Mohamad was found to have a one-quarter loss of normal range of movement.
26. Ms El-Mohamad told Dr Harvey-Sutton that she has pain in the elbows and shoulders and pain on moving those joints. She said her fingers also go numb. Dr Harvey-Sutton also observed that Ms El-Mohamad had had ultrasound-guided injection into the right shoulder and right elbow in September and October 2008 respectively.
27. There was also a Radiological Report produced to the effect that Ms El-Mohamad has early degenerative changes in her feet, together with tiny bilateral plantar spurs.
28. Because of the radiological evidence, we are prepared to accept that Ms El-Mohamad has permanent upper limb and lower spine dysfunction.
29. As to Ms El-Mohamad’s upper limb function, we referred to Table 3 of the Guide. We find the appropriate descriptor for her condition is as follows:
TENDemonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of dominant upper limb which causes moderate interference with hand function or manual handling.
30. On balance, we consider that it is appropriate to allocate 10 impairment points in respect of her upper limb conditions under Table 3.
31. As to her lower back, we find the appropriate descriptor for her condition is as follows:
TENLoss of one‑quarter of normal range of movement as well as back pain or referred pain:
with many physical activities and
with standing for about 30 minutes and
with sitting or driving for about 60 minutes.
or
Loss of half of normal range of movement.
32. We observe that there is evidence of a one quarter loss of range of movement, and also the severe limitation Ms El-Mohamad has in attending to domestic activities because of pain. While we note the Respondent’s submissions that she was able to undertake a very long plane trip, we accept her evidence that she made herself take the trip to visit her sick sister, and that she managed the pain during the journey by taking sleeping tablets.
33. On balance, we consider that it is appropriate to allocate 10 impairment points in respect of her thoraco-lumbar spine condition under Table 5.
34. We observed that it was open to us to assess Ms El-Mohamad under Table 20 and, had we done so, would have come to a view that her general pain symptomatology would have attracted a rating of 20 impairment points.
Other Conditions
35. Ms El-Mohamad said that she also suffers from diabetes mellitus, reflux, dizziness, asthma, sleep apnoea, ‘heart trouble’, ‘stomach trouble’, and elevated cholesterol. There was very limited medical information about those conditions, and there was insufficient medical evidence for us to form a view about whether those conditions were permanent. Those conditions have therefore not been rated.
36. Combined impairment: We are therefore satisfied that Ms El-Mohamad has a combined impairment of 30 impairment points.
37. We therefore turn to the remaining question.
Does Ms El-Mohamad have a continuing inability to work?
38. Section 94 of the Act provides the test against which we must determine if Ms El-Mohamad has a continuing inability to work.
94 Qualification for disability support pension
…
(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 independently of a program of support within the next 2 years; and
(b) either:
(i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii)if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
Note: For work see subsection (5).
(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 a training activity; or
(b)the availability to the person of work in the person’s locally accessible labour market.
…
(5) In this section:
…
work means work:
(a)that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
(b)that exists in Australia, even if not within the person’s locally accessible labour market.
39. A Job Capacity Assessment was conducted on 27 October 2008 by Ms E Marcos (Registered Psychologist). She noted a number of barriers to Ms El-Mohamad’s employment including:
difficulties with prolonged sitting, standing/walking, bending, lifting and carrying which may impact on the type of employment, endurance, and reliability
moderate ongoing psychiatric/psychological condition impacting upon coping, social interaction, concentration and endurance thereby restricting work capacity and types of suitable work options
concentration limitations significantly impacting on the ability to understand or comprehend moderately complex information or perform multilevel tasks
40. The assessor determined that Ms El-Mohamad had a temporary incapacity (0-7 hours) from 9 October 2008 until 9 April 2009. She observed that Ms El-Mohamad had several medical conditions such as depression, anxiety, obesity, hypertension and arthritis, which caused numerous symptoms that impact on her ability to search for and maintain employment. Apart from the impact of the identified barriers, she considered Ms El-Mohamad’s current capacity to work to be 15-22 hours per week.
41. She regarded Ms El-Mohamad’s future capacity to work (without intervention) as 15-22 hours per week, but 23-29 hours per week with vocational rehabilitation, presumably to address Ms El-Mohamad’s limited English skills and her lack of experience in the Australian workforce. In particular, she observed that Ms El-Mohamad was provided with adequate support to find suitable and sustainable employment, as well as assistance to manage her conditions in the workplace.
42. We observe that the job capacity assessor has noted serious debilitating barriers to Ms El-Mohamad returning to work, particularly in relation to her psychiatric condition. She, optimistically in our view, expected those barriers to last only six months. As it transpires, as that six months has long past, Ms El-Mohamad continues to exhibit those barriers. The most recent psychiatric evidence, that of Dr Lovric in her report of 12 May 2010, confirms that her psychiatric condition has, if anything, worsened.
43. Further confirmation of the ongoing nature of Ms El-Mohamad’s conditions is found in a further job capacity assessment, which was conducted on 2 June 2010, by Mr D Titmuss (Registered Psychologist), who reviewed the available medical evidence.
44. He noted a number of barriers to Ms El-Mohamad’s employment including:
Ms El-Mohamad’s psychological/psychiatric symptoms were likely to reduce work efficiency and attendance as well as contribute to a reduction in her ability to manage stressors
the chronic pain reduces her capacity to work or participate in activities for prolonged periods and will impact on her performance in the workplace
the limited ability to stand/sit for prolonged periods and/or lift or carry heavy objects may impact on types of employment that can be obtained
she has limited ability to concentrate or stay focused on tasks
family issues contributing to stress may impact on her ability to undertake and persist with tasks
45. The assessor determined that Ms El-Mohamad had an ongoing incapacity (0-7 hours) for work.
46. Ms El-Mohamad’s own evidence was of her inability to undertake even basic household tasks and her inability to mix with anyone. She gave evidence of her isolation and her inability to undertake basic chores.
47. Dr Harvey-Sutton, referring only to her physical limitations, did not consider Ms El-Mohamad unable to work for more than 15 hours per week. She specifically declined to comment in relation to Ms El-Mohamad’s psychiatric condition. Dr Lovric, however, in commenting upon Ms El-Mohamad’s psychiatric condition, expressed the view that it was unlikely Ms El-Mohamad would ever work again.
48. We consider that Mrs El-Mohamad has a continuing inability to work in accordance with section 94.
CONCLUSION
49. We find that Mrs El-Mohamad met the requirements of section 94 of the Act at the date of claim or 13 weeks thereafter.
DECISION
50. The decision under review is set aside and in substitution therefor the Tribunal decides that Mrs El-Mohamad had, at the date of application for DSP, an impairment rated at 30 points. Such impairment resulted in a continuing inability to undertake any work for at least 15 hours per week in the next two years. Ms El-Mohamad, therefore, is entitled to DSP as at the date of her application.
I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member and Dr J D Campbell, Member.
Signed: .....................................[sgd]................................................
AssociateDates of Hearing 2 and 3 November 2010
Date of Decision 9 December 2010
Applicant in person
Solicitor for the Respondent G. Heggen, Centrelink Legal
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