HANNA, Raad and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2013] AATA 697
[2013] AATA 697
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/1131
Re
HANNA, Raad
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Senior Member N Isenberg
Dr TohDate 27 September 2013 Place Sydney Decision Summary
The decision under review is set aside.
..............[sgd]..........................................................
Senior Member N Isenberg
Catchwords
SOCIAL SECURITY - disability support pension - physical impairment - entitlement to disability support pension - whether the Applicant had an impairment rating of 20 points or more under the impairment tables - whether the Applicant had a “continuing inability to work” - the decision under review is set aside.
Legislation
Social Security Act 1991 ss 94, 27
Social Security (Administration) Act 1999 ss 4(1)
Cases
Coates and Secretary, Department of Employment and Workplace Relations [2006] AATA 938
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Secretary of Department of Social Security v Pusnjak (1999) 56 ALD 444
Re Watts and Secretary, Department of Family and Community Services [2003] AATA 632
Re Crossland and Secretary, Department of Family and Community Services [2004] AATA 864
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Danny Harris [2010] FCA 360
Re Sargeant and Secretary, Department of Family and Community Services (2005) AATA 1076
Re Muir and Secretary, Department of Employment and Workplace Relations (2005) AATA 902
Re Hamal and Secretary, Department of Social Security (1993) 30 ALD 517
Re Triantafillou and Secretary, Department of Family and Community Services [2003] AATA 56
Click here to enter text.
REASONS FOR DECISION
Senior Member N Isenberg
Dr Toh27 September 2013
Background
On 11 June 2009, the applicant, Raad Hanna arrived in Australia with his family from Iraq via Lebanon and was paid newstart allowance from this date. On 18 May 2011 the applicant expressed an intention to claim disability support pension (‘DSP’) and on 23 May 2011, he lodged a claim for DSP, together with a treating doctor’s report completed by Dr Emil Guirguis on 18 May 2011. The applicant was reported to be suffering from advanced arthritis of the spine and joints and morbid depression.
His claim was rejected by the Respondent (‘Centrelink’), on internal review and by the Social Security Appeals Tribunal. While Centrelink agreed that the Applicant suffers from a number of conditions it did not accept that his various conditions were necessarily permanent nor that they would attract the required 20 point impairment rating under the Impairment Tables contained in the Social Security Act 1991 (“the Act”). Further, Centrelink did not accept that he meets the other requirement of eligibility for disability support pension, that is, a continuing inability to work.
On 11 October 2012, the applicant was granted DSP under the new Impairment Tables.
ISSUES BEFORE THE TRIBUNAL
·Were the Applicant’s conditions between 23 May 2011 and 22 August 2011 fully diagnosed, treated and stabilised?
·If so, did the Applicant have an impairment rating of at least 20 points under the Impairment Tables?
·If so, did the Applicant have a continuing inability to work?
LEGISLATION
These requirements are set out in s 94 of the Act which at the relevant time provided:
94Qualification for disability support pension
(1)A person is qualified for disability support pension 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)...
(i) the person has a continuing inability to work;
Section 94 of the Act sets out the qualification criteria for DSP. Schedule 2, s 4(1) of the Social Security (Administration) Act 1999 (‘Administration Act’) requires a claimant to be qualified for a social security payment within the period of 13 weeks after the day on which the claim was made.
Section 27 of the Act provides that the Tribunal, in reviewing the original decision or a later decision arising from the original one, must apply the Impairment Tables that were in force at the time the original claim for DSP was made. The Applicant applied for DSP on 11 August 2011. At that time the Tables for the Assessment of Work-Related Impairment for Disability Support Pension (1 January 2008 to 31 December 2011) (‘Impairment Tables’) were in force. They were located in Schedule 1B of the Act. The Schedule 1B Tables were repealed in December 2011 and the current tables only apply to claims and review of claims made on or after 1 January 2012.
EVIDENCE
Documents were lodged pursuant to s 37 of the Administrative Appeals Tribunals Act 1975 ("the T-documents"), the Applicant provided further documents:
·Job Capacity Assessment Report of “Julie” and “Katrene” 12 November 2012;
·Report of Dr Leo CK Tsang 3 July 2012
·Report of Dr Emil Guirguis 1 February 2013
·Report of Dr Leo CK Tsang 5 April 2013
The applicant was required for cross-examination and gave brief evidence by telephone. Evidence was also given by Dr Tsang, consultant psychiatrist, and Dr Slewa-Younan, whose speciality is transcultural psychology.
The applicant also required for cross-examination Michael Chalouhi, Registered Occupational Therapist and a job capacity assessor who assessed the applicant on 29 November 2012, and Charlette Yaako-Khanania, registered psychologist, who assessed the applicant on 11 December 2012. Ms Yaako-Khanania was also asked a number of questions about job capacity assessments (‘JCAs’) other than her own. Little weight can be attached to her evidence in that regard, because she was not the author of the reports. She was, however, able to explain some features of the reports.
CONSIDERATION OF THE EVIDENCE AND FINDINGS
What are the Applicant’s Permanent Conditions?
9.Before an impairment rating can be assigned under the Impairment Tables, the requirement set out in the Introduction to the Impairment Tables (“the Introduction”) must be satisfied. The main requirement is that an impairment must be fully diagnosed, treated and stabilised and permanent before an impairment rating can be assigned.
Paragraph 4 of the Introduction deals with the requirement that the impairment be stabilised. It provides that before ‘a rating can be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised’.
Paragraph 5 of the Introduction then states that the ‘condition must be considered permanent’. It provides that after ‘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’.
Paragraph 6 of the Introduction provides that 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, and whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next two years.
In Coates and Secretary, Department of Employment and Workplace Relations [2006] AATA 938, this Tribunal discussed the concept of permanence under the Act and said (at [22]):
The evident legislative intent is that disability support pensions be paid only when the disabling condition has reached the stage where it can be regarded as being permanent and having a permanent impact upon normal function as it relates to work performance.
Psychiatric condition
14.The applicant gave evidence that he had brought to Australia medication for his psychiatric condition which had been prescribed by a doctor in Lebanon, where he had been for a year prior to his emigration. He did not know the name of the medication or the doctor who prescribed it other than that he was a psychiatrist. He consulted him 12-13 times over the year he was in Lebanon for “stress” in relation to his experiences in Iraq.
The history of the applicant’s condition is best otherwise considered by a review of the available medical evidence in chronological order.
On 17 September 2009 the applicant was assessed by Natalie Jacob, a registered psychologist and she provided a JCA in which she noted that the applicant experienced grief and loss, having witnessed the death of his nephew in Iraq in 2005. She considered he would benefit from a referral to address his grief and loss issues and receive vocational guidance. In her evidence Ms Yaako-Khanania said it was not possible to see from the available material if such a referral had occurred, as this is the role of the jobsearch agency and it is up to the agency if it takes up the recommendation. Ms Yaako-Khanania explained that JCA assessors are not permitted to make a referral to a “specialist agency” in the absence of medical evidence.
On 3 November 2009 the applicant was assessed by another job capacity assessor, Saigi Shirzad who, it appears, was an intern psychologist who completed the assessment under the supervision of a registered psychologist, Vesna Stamenkovic. The report noted the applicant’s Posttraumatic Stress Disorder and an onset of “several years ago”. The treatment was noted as consisting of prescription medication - antidepressants - which had been prescribed overseas. The applicant was said to have reported that his treating doctor was unaware of this condition as he was yet to disclose issues of trauma. In cross-examination the applicant said he could not recall having told the job capacity assessor that and that Dr Guirgius did know about his condition. The applicant was recorded as having been referred to the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (‘STARTTS’) for trauma counseling. In his evidence the applicant said that, in all he had had STARTTS counseling and ‘other agencies’ had visited him at home “over a period of 1½ years”, but it is clear that the applicant was mistaken because, at that time, he had not yet been in Australia for that long.
Ms Yaako-Khanania was asked about the notation in the report that the applicant be referred to “stream 4” and that he had a “high and urgent need”. She said this was the highest stream for referral as in the case of severe disablement where the person needed to get into a program as soon as possible. She said “high and urgent need” is automatically generated when stream 4 is selected. It was unclear to her what of his conditions required this intervention, but she said it was not likely to be his neck, although it was possibly his spine. She said it would relate to a combination of conditions, not just the applicant’s back or psychiatric condition on its own.
On 16 February 2010 the applicant was assessed by Luke Magill, another job capacity assessor, who was an intern psychologist. Although there was no indication that he made the report under supervision, Ms Yaako-Khanania thought it likely that Vesna Stamenkovic had supervised him. The report noted the applicant’s Posttraumatic stress disorder stemming from torture experiences in 2005. Ms Yaako-Khanania said that the assessor “deduced” his condition was PTSD because his symptoms best fitted that condition. The applicant was recorded as having reported having no treatment except one session of counseling with STARTTS. The applicant could not specifically recall that meeting but denied that he had had at that time only had one STARTTS session. Again the assessor referred the applicant was referred for “stream 4” referral, although he was said not to have a high and urgent need. Ms Yaako-Khanania explained that as he was already participating there was no need to prioritise the referral.
The applicant lodged a claim for DSP on 19 February 2010. The application was supported by a treating doctor’s report dated 18 February 2010 completed by Dr Guirguis who considered the applicant suffered Adjustment disorder with depressed mood with a date of onset of 2007 and a date of diagnosis of 2009. As a result of his physical disability and adverse previous life events, the applicant had become quite depressed. Dr Guirguis noted symptoms of insomnia, physical retardation, social isolation, low self-esteem, loss of interest in life (sic) pleasurable activities, headaches, poor appetite and he had an inability to concentrate. He was being treated with counseling and antidepressants, as he had in the past. The applicant was usually compliant with recommended treatment. It was suggested that he have a psychiatric review.
In her JCA report dated 22 March 2010, Alison Brown, registered psychologist considered the condition to not be fully treated and stabilised. It was noted that the applicant’s doctor had confirmed his diagnosis of adjustment disorder with depressed mood. The clinical onset was said to be 2007 in Iraq. The applicant was reported as having told her he has previously used anti-depressant medication for this condition, but there was no current treatment and he was not taking medication. He advised that he had had 4 to 5 home visits from STARTTS. The condition was not considered to be fully treated or stabilized. He was again referred for “stream 4” referral, having a high and urgent need. Ms Yaako-Khanania was unable to explain how he again had a “high and urgent’ need.
Dr Guirguis provided another treating doctor’s report dated 18 May 2011. He confirmed a diagnosis of Morbid Depression. The applicant had symptoms of ‘sadness, insomnia, nervous, irritable, panic, forgetful, lack of concentration, lack of self-esteem and loss of interest’. The applicant was receiving counselling and taking anti-depressants and this was to continue.
The applicant lodged his second application for DSP on 23 May 2011, the decision in relation to which is the subject of this review. The application was supported by Dr Guirguis’ treating doctor’s report dated 18 May 2011 referred to above.
On 24 May 2011 the applicant was assessed by Josephine Ramos, a job capacity assessor and a Registered Occupational Therapist. There it was noted that his condition had been diagnosed as Morbid Depression, that the doctor had not recorded a date of onset but the applicant reported 2005. Past treatment was anti-depressant medication, fortnightly visits from STARTTS for 12 months which the applicant ceased as he felt it was making him worse. He was having no current treatment; he reported that he ceased the medication as he was taking too much already. He has not seen a psychologist or psychiatrist. The report included under the heading "References" a report apparently requested on 8 April 2011 from Sandy Gazdek, a psychologist, but that report did not appear in any of the papers before us.
On 5 July 2011, Dr Guirguis completed a Centrelink Medical Certificate which referred, in relation to the applicant’s psychiatric condition, to Morbid depression, the treatment for which was counseling and anti-depressants.
Dr Shameran Slewa-Younan, a psychologist, provided a report dated 14 September 2011. The applicant had been first referred to her in July 2011 for assessment and treatment of a mixed anxiety and mood disorder. The applicant said in his evidence that she was the first person in Australia with whom he had discussed his experiences in Iraq, although he had discussed his experiences with the STARTTS counselors. Dr Slewa-Younan said it was ‘obvious’ that the applicant was suffering from Chronic Posttraumatic Stress Disorder with comorbid Major Depression Disorder.She undertook some additional diagnostic testing on 29 July 2011 which confirmed the diagnosis she had reached on their first meeting.In her opinion, his psychiatric and physical conditions were chronic and it was unlikely that he would improve to any significant extent in the forseeable future. In her evidence she explained that it was unlikely that he would improve to the position he was in prior to the trauma. She noted that they had commenced cognitive behavioural therapy – anxiety management, cognitive restructuring and some exposure. During treatment the applicant had demonstrated good compliance and commitment to the therapy which was to educate him in coping strategies. In evidence she said notwithstanding they had developed a rapport because of shared heritage, it would take some time for any therapy to have any effect. He was also at that time on psychiatric medication (Sertraline 50mg) which was being managed by his GP, Dr Guirguis. She said in her evidence that at that time she thought she could help to slow the rate of his decline and stabilise his condition.
Dr Guirguis completed a further Medical Report dated 16 September 2011. In relation to the applicant’s ‘Anxiety and depression’ he considered clinical onset to have been gradual and he provided 2009 as the date of diagnosis. He noted that the current treatment was counseling and antidepressants, and the applicant was usually compliant with recommended treatment, although there were side effects of the medication. Future/planned treatment was psychiatric review.
Dr Guirguis referred the applicant to Dr Leo CK Tsang, a consultant psychiatrist. In his report dated 3 July 2012, Dr Tsang wrote that he was informed by the applicant’s partner that the applicant had previously seen a counsellor from STARTTS for one year and had been seeing Dr Slewa-Younan for the previous twelve months, but that he had been worse, rather than better, after each session. Dr Tsang’s diagnosis was severe PTSD as a result of traumatic experiences in Iraq. Dr Tsang suggested that the applicant’s psychotropic medications be optimised first before psychological and trauma-specific treatment was introduced. His treatment was likely to be prolonged and his symptoms “unremitting”. Dr Tsang that the applicant did not want to talk about his history because it “makes him feel bad”. When asked about this in cross-examination the applicant said he just wanted to forget what had happened and did not want to talk about it; he said he has difficulty talking to Dr Tsang, although he has been seeing him for over a year.
Dr Slewa-Younan provided another report, dated 4 September 2012. She reiterated that the applicant was suffering from chronic PTSD with morbid Major Depression Disorder. She had seen him over a period of 14 months, having undertaken a cognitive behavioural approach to treating his symptoms with anxiety management, cognitive restructuring and some exposure. Notwithstanding his good compliance with appointment attendances there had been ”little improvement” in his severe anxiety symptoms. In her opinion, the applicant required ongoing treatment and was currently on psychiatric medication, which was being managed by his psychiatrist, Dr Tsang. She said in her evidence that it was she who suggested his referral to Dr Tsang. When she was asked when she had suggested to Dr Guirguis that he refer the applicant to Dr Tsang, she said that it was soon after his first CBT session, because of the severity in his symptoms, such as his inability to sleep and concentrate.
In connection with the applicant’s third claim for DSP, on 12 November 2012 the applicant was assessed by "Julie", a registered psychologist, and "Katrine", a rehabilitation counselor, job capacity assessors. At that time the applicant’s condition was considered permanent because, despite monthly psychiatric reviews psychological counseling for over 14 months his condition was likely to deteriorate. His condition was therefore considered to be permanent.
On 29 November 2012 the applicant was again assessed - by and another job capacity assessor Michael Chalouhi, a Registered Occupational Therapist and Charlette Yaako-Khanania, registered psychologist, ostensibly for the purposes of this application for review. Ms Yaako-Khanania said she interviewed the applicant separately to Mr Chalouhi, although she reviewed his notes. She had suggested some questions for Mr Chalouhi to ask the applicant and she had checked his report.
The report noted that the applicant had psychological consultations since July 2011, and various medication (Sertaline, Mirtzapine, Eleva). A further medication change had occurred after the relevant period (Zyprexa, Prazosin) and it was noted the applicant was having ongoing counselling. It noted that the applicant had first seen Dr Tsang in July 2012. Dr Tsang had indicated the applicant had accessed STARTTS intervention, although the applicant “denied” this treatment. In his evidence Mr Chalouhi agreed the applicant’s condition may mean he has memory problems but both he and Ms Yaako-Khanania said the onus is on an applicant to provide information to the assessor. In her evidence Ms Yaako-Khanania said there was no ‘denial’ of STARTTS. Their notes said nothing about memory issues. She said it would not have been helpful to have explored whether the applicant had memory issues, because the main issue was his physical, rather than psychological, condition.
Both said that although a job capacity assessor might telephone an applicant’s doctor to clarify matters, no enquires were made in this case, beyond what was available to them on the papers.
In his evidence Mr Chalouhi said that he relied on the various medical reports that had diagnosed a psychiatric illness. He was not sure if the applicant had nominated the medication he was taking but did say he had changed medication. His understanding was that the applicant was taking Sertaline, Mirtzapine, and Eleva prior to July 2011 and Zyprexa and Prazosin after that date. He could not recall if the applicant had told him about medication he had brought from overseas or that he had consulted a psychiatrist in Lebanon, although he agreed it was part of his role to take a complete history. Ms Yaako-Khanania was unaware of any treatment overseas.
Mr Chalouhi was referred to his note that the applicant would benefit from a “medication review” but said this was a Centrelink pro forma. Ms Yaako-Khanania said she thought a “medication review” was appropriate because the applicant had not been reviewed by a psychiatrist. Treatment of PTSD would require medication to be prescribed by a psychiatrist rather than a GP as had been the case.
Mr Chalouhi said the applicant presented with quite a severe condition. The applicant had described symptoms of PTSD in describing a series of traumatic events about which had nightmares and flashbacks and caused hypervigilance. In saying that he could benefit from a psychiatric consultation was because his condition was so severe. He said one factor in coming to the view that the condition was not optimally treated was that Dr Selwa-Younan had said in her report of 14 September 2011 that he was unlikely to improve. He said that Ms Yaako-Khanania was of the view that he would benefit from further intervention. In coming to their view that the applicant had not been optimally treated and his condition had not stabilised, he said they reviewed the previous JCAs. He was referred to the JCA report of 24 May 2011 which noted that the applicant said STARTTS was making him worse. He said he did not know when the applicant had ceased STARTTS and had made no enquiries notwithstanding that he knew the applicant was mistaken in his recollection. Ms Yaako-Khanania said that at STARTTS a person is assessed by a “health professional”, not a medical practitioner. She said at the relevant time the applicant had only been seeing Dr Selwa-Younan for 2 months. Although Dr Tsang’s report was available it was after the period under review. She said their assessment was based solely on how the applicant might have been during the period under review.
Treatment of conditions such as that suffered by the applicant is difficult. Mr Chalouhi agreed medication needs to be trialled. Medication and counselling may or may not show some improvement and that people can be treated for some time without any improvement. As to why he thought the applicant’s condition might have improved he referred to the report of Dr Selwa-Younan who had noted she was treating him and he was compliant. He agreed there was no suggestion of improvement by either Dr Selwa-Younan or Dr Tsang and improvement was hypothetical. He thought Dr Selwa-Younan’s CBT could have been beneficial but at the relevant date it was too early to tell. He agreed that the applicant’s condition will not now improve. Ms Yaako-Khanania agreed that there was no evidence that changing the applicant’s medication would have had more than the potential for improvement to the applicant’s condition. She said though that there was a potential for any treatment to have a significant impact but there was no guarantee of any improvement. She regarded Dr Selwa-Younan ‘s reports as inconsistent and would have expected some improvement in the applicant’s symptoms as a result of Dr Selwa-Younan’s treatment.
Mr Chalouhi said he knew the applicant had been referred to STARTTS which was for victims of torture and agreed it was therefore likely that he had spoken of his experiences in Iraq in order to be referred.
The most recent evidence was a further report from Dr Tsang dated 5 April 2013. There the doctor reported that he considered the applicant’s condition was “more than likely” during the relevant period to have been the same or similar to that when he first saw him in July 2012. He expected the condition to continue for longer than the next two years. He observed that it had taken 9 months to form a therapeutic relationship with the applicant. It was only relatively recently that the applicant had been able to talk about his “horrific experience”. Mr Chalouhi agreed Dr Tsang was best qualified to express a view about the applicant’s prognosis.
We were referred to the Tribunal recent decision in Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 where Member Breen stated at [34]:
In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.”
The respondent submitted, in accordance with Bobera that the fact that the applicant was granted DSP based on a new claim lodged 17 months after the period under review does not justify DSP being paid to him earlier. It submitted that the evidence at the relevant time did not show that the applicant’s medical impairment as being fully treated and stabilised during the claim period. The respondent contended that the applicant’s psychiatric condition was not permanent during the claim period because the applicant had only recently recommenced treatment and it was reasonable at the time to expect that further treatment would result in improvement in his condition. Furthermore the applicant had not been reviewed by a psychiatrist before or during the claim period. In September 2011, Dr Guirguis suggested that a future treatment option be in the form of a review by a psychiatrist but it was not until July 2012 that the applicant saw Dr Tsang. It was only then, the Respondent submitted, that a proper diagnosis had been made by a specialist who recommended suitable treatment for the applicant.
The respondent said there was no information regarding the date of onset of the condition or the type of medication that the applicant was taking before he came to Australia. In addition, there was some inconsistency in reporting by the applicant and his treating doctor in that Dr Guirguis mentioned in his report of 18 May 2011 that the applicant’s current treatment included anti-depressants, whereas the applicant indicated to the job capacity assessor at about the same time that he was not currently on medication. The respondent submitted that the applicant was not receiving reasonable treatment for this condition during the claim period hence the condition was not fully treated and stabilised.
The respondent noted the latest report of Dr Guirguis dated 1 February 2013. He wrote that the applicant was treated by counseling and a variety of antidepressant medication that failed to control his symptoms and a psychiatrist referral was needed. However, his report fails to provide any specific details relating to the treatment of the conditions complained of by the applicant. For instance, the applicant was reported as taking antidepressant medications to manage his psychiatric condition but no details have been provided as to the specific type, dose or frequency of the medication provided. In submitted little weight should be given to Dr Guirguis’ report.
The Introduction to the Impairment Tables (paragraphs 4, 5 and 6) explain the extent to which adequacy of treatment and the stability of an applicant’s condition are relevant considerations in the application of the Impairment Tables. The Introduction requires that an applicant’s condition must be “fully diagnosed (and) treated” before the Impairment Tables can be applied to assign an impairment rating: (paragraphs 4 & 6).
We have no hesitation in finding that the applicant suffered, at the relevant date, a diagnosed psychiatric condition, although we acknowledge that it had been described in a variety of ways. Ultimately, we do not think that is of any consequence. In any event we note that Dr Slewa-Younan said that it was ‘obvious’ when she first saw the applicant on 20 July 2011 that he was suffering from Chronic Posttraumatic Stress Disorder with comorbid Major Depression Disorder.The additional diagnostic testing she undertook on 29 July 2011 confirmed the diagnosis.
Paragraph 6 of the Introduction requires consideration of past and current treatment. It hypothesises a further distinction between “planned” and “further reasonable” medical treatment. Implicitly the Introduction assumes that treatment “planned in the near future” has already been identified by a person’s medical advisers as desirable for the person to undergo, although it does not appear to require that the details of the intended treatment should actually have already been devised or arranged. On the other hand “further reasonable medical treatment” is treatment that has neither occurred nor been planned but which “can reliably be expected” to produce substantial improvement and is potentially available. It may include treatment the applicant, and their treating medical advisers, have in fact rejected.
It was clear that by the relevant period the applicant had undergone STARTTS treatment for in excess of 12 months. The referral for that kind of specific intervention for victims of trauma or torture, suggested to us a recognition by the various job capacity assessors of the seriousness of the applicant’s condition from even a much earlier date than the period under review. There was also evidence that he had, by the relevant date also been medicated, by Dr Guirguis, and possibly even before he came to Australia. That the applicant was unaware of the names of his medication or muddled the extent of his STARTTS treatment, in our view, only served to further demonstrate his confused state, as had been described by his GP. It was reasonable in our view that a variety of medications may have been trialled in an attempt to alleviate the applicant’s symptoms. The Centrelink job assessors recommended STARTTS and, it appears, he was compliant with that request, even though, according to his wife, it made him worse. He went to a psychologist, who notwithstanding some common features of their background, also did not assist. He understandably, has put himself in the hands of his medical practitioners.
47.According to paragraph 5 a condition may be regarded as fully stabilised if it is “unlikely there will be any significant functional improvement” within two years, even if the condition is appropriately treated. A “permanent” condition must also be “stabilised” in relation to any associated functional impairment before an impairment rating can be assigned: (paragraphs 4 and 6). A condition is to be treated as “fully stabilised” if “significant functional improvement” is unlikely to occur within two years: (paragraph 6). A benefit of having medical reports and assessment later than the relevant period is that they inform the applicant’s progress notwithstanding his ongoing treatment. In short, he has not improved and while. Dr Selwa-Younan is optimistic of some alleviation of symptoms, no medical practitioner – not his GP, nor his psychologist nor his psychiatrist expect any improvement in his underlying condition. We acknowledge that this is with the benefit of hindsight. However we note that Dr Tsang considered the applicant’s condition was “more than likely” during the relevant period to have been the same or similar to that when he first saw him in July 2012. Furthermore, Dr Slewa-Younan, while cautiously hoping for some alleviation of symptoms and describing “little improvement” in his condition, actually noted a worsening when he was re-tested in September 2012.
48.We therefore are in no doubt that during the relevant period his condition was properly considered to be permanent.
Assessment of psychiatric condition
The relevant portion of the Table is as follows:
…
TEN
Moderate and regular symptoms and generally functioning with some difficulty. (e.g. 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 fulltime work. (eg. short periods of absence from work).
TWENTY
Psychiatric illness or disorder with either serious symptomatology OR impairment in functioning that requires treatment by a psychiatrist (e.g. frequent suicidal ideation, severe obsessional rituals, frequent severe anxiety attacks, serious antisocial behaviour, diagnosed psychotic illness with continuing symptoms). There is significant interference with interpersonal or workplace relationships with serious disruption of work attendance or ability to work.
...
50.Dr Slewa-Younan wrote that the applicant’s condition attracted an impairment rating of twenty points. She purported to use the New Tables, rather than the Table relevant at the date of application. It remains though, that her assessment of the applicant’s condition specifically used the form of words from the relevant Table.
51.In referring to the relevant Table, in her evidence Ms Yaako-Khanania said that ratings by a psychiatrist carry more weight than those of a GP. However, in order to attract 20 points in Table 6, only a psychiatrist’s assessment would be accepted; a psychologist would not suffice. There is no basis for this requirement, which appears to be a Centrelink policy. We note that Dr Tsang considered that during the relevant period the applicant’s condition was “more than likely” to have been the same or similar to that when he first saw him in July 2012 and that Mr Chalouhi agreed Dr Tsang was best qualified to express a view about the applicant’s condition.
52.The debilitating effect of the condition on the applicant’s lifestyle was also detailed in particular by Dr Guirguis in his report of 1 February 2013. It was clear to us that during the relevant period the applicant was suffering a psychiatric illness with impaired functioning that required treatment by a psychiatrist. He was incapable of work. For these reasons we consider a rating of 20 points to be appropriate for the applicant’s psychiatric condition.
Other conditions
53.The submissions of the parties did not address the applicant’s other conditions, noting, for the reasons apparent from the discussion below, that the success or otherwise of the applicant’s case turned on his psychiatric condition. For completeness we have considered the conditions but, in the end result nothing turned on those conditions.
Back condition
54.The respondent contended that during the relevant period the applicant’s back condition was not permanent and therefore cannot be rated.
55.The respondent referred to the report of Dr Graeme Shirtley, radiologist, dated 19 October 2009. The doctor reported some minor degenerative change at the C4-5 level, although the intervertebral disc space was well preserved. Dr Shirtley noted that the scans demonstrated a normal L3-4 intervertebral disc with no evidence seen of any prolapsed or protrusion with the thecal sac and the neural structures being normal. There was evidence of paracentral herniation to the intervertebral disc at L4-5 and L5-S1 but there was no posterolateral protrusion at either the L4-5 or L5-S1.
56.On 11 November 2009 the applicant was treated with a guided epidural injection.
57.The respondent also relied on the reports of Dr Ibrahim Hanna, consultant physician and neurologist dated 16 December 2009 and 27 January 2010. Dr Hanna noted that the applicant’s symptoms were most likely due to lumbosacral spondylosis with possible radiculopathy. His lower limbs reflexes were very brisk, suggestive of cord pathology above L2. Dr Hanna, provided a further report dated 27 January 2010. The MRI scan of his spinal cord revealed mild to moderate cervical and lumbosacral spondylosis with some encroachment on the right L5 nerve root. It was suggested that he undertake physiotherapy with massage and hydrotherapy.
58.Dr Adrian Gale provided an MRI scan report dated 5 January 2010 and his findings were similar to those of Dr Shirtley, but he also noted a small posterior disc protrusion at T7/8.
59.In another bone scan on 12 February 2010 minor degenerative changes were found in the lumbosacral spine.
60.In his treating doctor’s report of 18 February 2010, Dr Guirguis wrote that the applicant’s condition would continue to deteriorate and he would require an operation on his lower back despite taking analgesics, having an epidural block and having physiotherapy.
61.Alison Brown, JCA assessor, on 3 March 2010 considered the condition was not fully treated and stabilised on the basis the applicant required surgery and also because he had not undergone physiotherapy for his condition, which was contrary to the information provided to Centrelink by Dr Guirguis, referred to above.
62.In his report dated 22 March 2011 Dr Balsam Darwish, neurosurgeon and spinal surgeon considered the applicant’s symptoms were suggestive of left L5 radiculopathy. He noted treatment options which included conservative treatment, perineural cortisone injection and surgery. The applicant was not keen on any form of intervention and instead was given a prescription for Epilim 200mg twice a day and Mobic 7.5 mg twice a day.
63.Dr Patrick Luckey provided a MRI scan report of the lumbar spine dated 4 April 2011. He found on examination mild scoliosis but no focal bony lesions or compression fractures. There was also early spondylotic change at L1/L2 and L3/L4, early bilateral facet joint degeneration and early disc protrusion.
64.Dr Guirguis, in his treating doctor’s report of 18 May 2011 stated that the applicant was taking analgesics and had the physiotherapy when he could afford it. He noted the applicant may need an operation on his back.
65.Ms Ramos (registered occupational therapist), the JCA assessor, in her report dated 24 May 2011 considered the condition was not fully treated and stabilised because the applicant had not received optimal treatment. In her view further physiotherapy and other alternative intervention as well as pain management might improve his capacity. She observed the treating doctor had suggested injections but the applicant declined. This overlooks that on 11 November 2009 the applicant was treated with a guided epidural injection.
66.On 5 July 2011, Dr Guirguis provided a Centrelink Medical Certificate which referred, with respect to the applicant’s back, to "lumbar discopathy & severe radiculopathy. He noted pain and stiffness, weakness and reduced mobility, back and legs. The condition was likely to persist.
67.On 16 September 2011 Dr Guirguis again noted the applicant may require surgical intervention.
68.In their JCA report dated 29 November 2012, the assessors Mr Chalouhi and Ms Yaako-Khanania, somewhat extraordinarily in our view given the available evidence, found a lack of corroborating evidence confirming diagnosis of osteoarthritis in the medical reports. The applicant’s osteoarthritis was also not considered to be optimally treated and stabilised during the claim period and he might benefit from review with specialists, pain management and secondary rehabilitation including physiotherapy and hydrotherapy. In her evidence Ms Yaako-Khanania she was in fact satisfied that his condition was very likely to last more than 24 months.
69.In his evidence Mr Chalouhi said the applicant reported that the onset of his back condition was 2005. He had the treating doctor’s report available to him and noted that the condition was first mentioned in the neurologist’s report (Dr Hanna) of 16 December 2009. In any event, in our view, it was clear that by the time of the application the subject of this review, the applicant’s lower back was diagnosed.
70.The Respondent submitted that although the applicant states that he experiences pain in his lower back, Dr Guirguis has recommended surgery. That is not the case. Dr Gurguis has foreshadowed that surgery may be needed. There is no indication that it has been recommended at that time, although Dr Darwish mentioned it as one option. There was no discussion that we could see about risks or the likelihood of a positive outcome, or otherwise. The suggestion of surgery was not made, as far as we can see, by any other doctor. Further, it is not unreasonable that the applicant explore other options, as he has done, prior to considering surgery.
71.The Respondent also submitted that applicant is not interested in undertaking treatment mentioned by Dr Hanna. Dr Hanna’s report was given to the applicant’s GP, Dr Guirguis. There was no evidence the applicant was given the report, and in any event the applicant, it appears, does not read English. While Dr Hanna may have suggested that the applicant undertake physiotherapy with massage and hydrotherapy, there was no evidence that this was taken up by his doctor. He did have the physiotherapy to the extent he could afford it.
72.As a result we are satisfied that, in the relevant period, the applicant had undergone reasonable treatment for his back, and that his condition, unfortunately for the applicant, had stabilised. As a result we find that the condition should be considered permanent it can be assigned a rating under the Tables.
73.Table 5.2 assigns, relevantly, the following ratings to a lumbosacral impairment:
NIL
Normal or nearly normal range of movement
FIVE
Loss of one-quarter of normal range of movement.
TEN
Loss 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.
TWENTY
Loss of half of normal range of movement as well as back pain or referred pain:
with most physical activities and
with standing for about 15 minutes and
with sitting or driving for about 30 minutes.
or
Loss of three quarters of normal range of movement.
...
We accept Dr Gurguis’ evidence that the applicant’s back causes him pain and stiffness, numbness and tingling and reduces his ability to stand and affects his overall mobility. He cannot bend, squat or twist repeatedly. Unfortunately though there was no medical evidence which would allow us to accurately assess the applicant’s loss of range of movement; all the ratings require information about an applicant’s range of movement. In the circumstances we cannot rate the applicant’s back condition above NIL.
Shoulder condition
The respondent contended that the condition was not permanent since it had not been fully diagnosed, treated and stabilised during the claim period. In his claim form dated 23 May 2011 the applicant made no reference to a shoulder condition, nor was there in Dr Gurigius’ treating doctor’s reports of 18 May 2011, 5 July 2011 or 16 September 2011. The Respondent had available to it the xray and ultrasound report of Dr John Dreverman, dated 18 April 2011 where it was reported that there was no evidence of bony trauma or abnormal soft tissue calcification. The ultrasound showed no focal rotator cuff tear. The X-ray of his shoulder showed no significant abnormality with the joint being normal except for ‘slight “bunching” of the supraspinatus tendon bursa beneath the acronium with abduction’.
The job capacity assessment report of Ms Ramos, dated 24 May 2011 the applicant was recorded as having told her an injection was suggested by his treating doctor but he had declined.
We find the shoulder condition cannot be regarded as being a permanent condition because the applicant did not claim this condition nor did his treating doctor address this condition. Given the lack of medical evidence documenting this condition, it cannot be considered as permanent and it therefore cannot be rated under the Impairment Tables.
Hearing Loss
The respondent contended that the condition was not fully diagnosed, treated and stabilised during the claim period.
The job capacity assessment report of Mr Chalouhi and Ms Yaako-Khanania, dated 11 December 2012 referred to the first diagnosis of severe bilateral hearing loss being noted in the audiometry testing report dated 26 June 2012. The condition had not been reported in previous medical reports.
While we accept that severe hearing loss is unlikely to have been of sudden onset, there was no earlier diagnosis than that of June 2012. As a consequence the applicant’s hearing loss cannot be considered to have been permanent in the period under review and consequently cannot be rated under the Impairment Tables.
Does the applicant have a continuing inability to work because of his impairment?
81.The Respondent contended that the Applicant did not have a continuing inability to work as a result of his medical conditions.
A person has a continuing inability to work because of an impairment if 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 either if the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or 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.
Assessment of the applicant’s continuing ‘inability to work’ was explained by Drummond J in Secretary of Department of Social Security v Pusnjak (1999) 56 ALD 444, where the Court set out at 452 the relevant question:
As to s 94(2)(a): Does the impairment of itself, ie, considered in isolation from other matters that may influence his attitude to working, have such an impact on the particular claimant's capacity for work that it prevents him from doing work available anywhere in Australia, being work of a kind which the particular applicant is, by reason of his existing work skills and experience, capable of performing, without the need for retraining?
The concept of continuing inability to work is not confined to a claimant’s ability to undertake work for which they are trained and skilled, but rather their capacity to undertake any work. It involves consideration of whether the claimant has an impairment which of itself prevents the person from undertaking any work or which prevents the person from undertaking educational or vocational training for a period of two years (and, if such training is not prevented by the impairment, whether such training would be likely to enable a person to undertake any work for the next two years). See also, Re Watts and Secretary, Department of Family and Community Services [2003] AATA 632 and Re Crossland and Secretary, Department of Family and Community Services [2004] AATA 864.
Factors that are consequential upon the person’s impairment, such as attitude and lack of motivation to work, are not to be taken into account in determining a person’s continuing inability to work under subsection 94(2) (Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Danny Harris [2010] FCA 360). The only exception to this is where medical evidence indicates that the lack of motivation is directly attributable to the impairment (Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444, 451).
The respondent submitted that the opinions of Dr Slewa-Younan and Dr Guirguis should be given little weight since they have no understanding or knowledge of work options, rehabilitation courses or training. The opinion of a trained and qualified work capacity assessor employed by the Department should be preferred to the opinion of the applicant’s treating doctors in relation to the applicant’s capacity to work. The work capacity assessor has knowledge of labour market issues and experience in assessing the impact of medical conditions on a person’s ability to work. The work capacity assessor is in the best position to properly determine the applicant’s capacity to perform any work or to undertake educational or vocational training.
The Tribunal in Re Sargeant and Secretary, Department of Family and CommunityServices (2005) AATA 1076 recognised the different approaches taken by medical practitioners and work capacity assessors and preferred the evidence of the work capacity assessors as to the applicant’s capacity to work or undertake training. A similar view was made by the Tribunal in Re Muir and Secretary, Department of Employment and Workplace Relations (2005) AATA 902.
The respondent relied on the JCA report of Ms Brown, dated 3 March 2010 which noted his limited education and his work experience as a truck driver. She considered that with psychiatric intervention, psychological counselling, pain management and back education, the applicant’s work capacity would increase to 15-22 hours per week due to increased ability to manage his medical conditions in the workplace. It was unclear on basis she had come to that view, especially as Dr Guirguis, only a few weeks before, noted the applicant’s symptoms of insomnia, physical retardation, social isolation, low self-esteem, loss of interest in life (sic) pleasurable activities, headaches, poor appetite and an inability to concentrate. Counseling and antidepressants did not prove effective. It is difficult to see how the range of interventions she suggested might have made such a dramatic change in the applicant’s condition, where the ongoing treatment by his GP had had little or no effect and the applicant’s view of his STARTTS counseling was that it made him worse.
In her JCA report of dated 24 May 2011, Ms Ramos considered the applicant had a future capacity for work within 2 years with intervention at 15-22 hours per week or 8-14 hours without intervention. He was said to be suitable for light less skilled work such as a console operator. Again, only shortly beforehand, Dr Guirguis reported the applicant had symptoms of sadness, insomnia, nervousness, irritability, panic, forgetfulness, lack of concentration, lack of self-esteem and loss of interest. The applicant was receiving counselling and taking anti-depressants and this was to continue. Even with the specialist counselling provided by Dr Y-S his condition was not expected to improve, and in fact, did not improve.
Mr Chalouhi and Ms Yaako-Khanania in their JCA report dated 11 December 2012 considered the applicant had a future capacity for work within 2 years with intervention at 15-22 hours per week. Again this failed to give appropriate weight to the views of his treating professionals.
The respondent contended that the applicant’s ability to perform activities of daily living has not been severely affected by his medical impairments - for example, he was able to drive a motor vehicle and use public transport independently. The applicant was recorded though as telling Mr Chalouhi and Ms Yaako-Khanania that he preferred not to go out.
The respondent submitted that the applicant would benefit from further psychological interventions, stress management, anxiety management and that further counselling would reduce the impact of his PTSD. In our view there was no medical evidence that would support that view. The respondent submitted he would also benefit from further vocational training, skills development, job search assistance and job seeking training. He could undertake language training to improve his English language skills. We think this overlooks the debilitating effect of his psychiatric condition, which in our view, would, for practical purposes, preclude him undertaking such activities in circumstances where his psychiatric and psychological advisers are very cautious about any positive impact of their intensive management.
In Re Hamal and Secretary, Department of Social Security (1993) 30 ALD 517 (at 525), the Tribunal described the realities of the modern workplace and the need to consider the issue of work in its context:
When considering the issue of work in this context, the tribunal is of the view that it is the “normal” workplace against which a person's abilities are to be judged, not the workplace of the “benign employer".
Relying on Hamal the Tribunal in Re Triantafillou and Secretary, Department of Family and Community Services [2003] AATA 56, interpreted ‘work’ to be work that is carried out in the ‘open workplace’ and not work that is insulated from dynamic and unpredictable demands.
We do not consider any employer would be able to tolerate the applicant’s his physical limitations, his inability to concentrate and his short-temper. Further, we accept his condition would prevent him from benefiting from retraining for work within the next two years.
We therefore find that the applicant was, at the relevant date, qualified for DSP because he had an impairment, which is properly rated under the Impairment Tables at, at least 20 points. We also find that because of the impairment, he had a continuing inability to undertake any work for at least 15 hours per week in the next two years.
DECISION
The decision under review is set aside.
98. I certify that the preceding 97 (ninety-seven) paragraphs are a true copy of the reasons for the decision herein of Miss N Isenberg, Senior Member and Dr S Toh, Member.
.........................[sgd]...........................
Associate
Dated 27 September 2013
Date(s) of hearing 16 & 17 July 2013 Solicitors for the Applicants Mr S Hodges, Stephen Hodges Solicitor Solicitors for the Respondent Dr S Thompson, Sparke Helmore Lawyers
2
6
0