Mesut Kormali and Secretary, Department of Social Services
[2015] AATA 154
•18 March 2015
[2015] AATA 154
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/5228
Re
Mesut Kormali
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Senior Member J F Toohey
Date 18 March 2015 Place Sydney The Tribunal affirms the decision under review.
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Senior Member J F Toohey
CATCHWORDS – social security – disability support pension – psychiatric impairment – evidence of serious impairment – whether fully diagnosed during claim period – whether fully treated and stabilised during claim period – decision under review affirmed
Legislation
Social Security Act 1991 s 94
Social Security (Administration) Act 1999 s 42 and Sch 2
Secondary Materials
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Senior Member J F Toohey
Background
Mr Mesut Kormali was born in Turkey. He met his wife, an Australian citizen, in Turkey and they moved to Australia in September 2009. He suffers from a psychiatric condition for which he has received treatment in Turkey and Australia.
On 6 September 2012, Mr Kormali applied for a Disability Support Pension (DSP). Centrelink decided he did not qualify for payment. On 19 April 2013, the Social Security Appeals Tribunal (SSAT) affirmed Centrelink’s decision.
Mr Kormali seeks review of the SSAT decision. He attended a hearing on 8 September 2014 with his wife and children but was unable, apparently because of his psychiatric condition, to enter the hearing room and speak to the Member who constituted the Tribunal. Mrs Kormali spoke on his behalf. As there was scant information available about his condition, the Tribunal Member adjourned the matter to allow Mr Kormali time to obtain additional evidence from his treating doctor in Turkey.
On 10 September 2014, Mr Kormali filed a report dated 9 September 2014 from Dr Mehmet Demirel in Turkey. The report was subsequently translated from Turkish to English and the translation filed with the Tribunal on 2 October 2014. It outlined briefly Dr Demirel’s first contact with Mr Kormali and his diagnosis of obsessive compulsive disorder and panic disorder. Dr Demirel’s report is considered further below.
A further hearing was scheduled for 9 December 2014.
On 27 November 2014, the Tribunal was advised that Mr Kormali had received a grant of Legal Aid for the purpose of assisting him to obtain a further medical report. His legal representative, Mr Hodges, requested the hearing on 9 December 2014 be vacated to allow him time to obtain the report. The Tribunal agreed to that request. On 4 February 2015, Mr Hodges advised he had tried to contact Mr Kormali’s Australian doctor but had been unsuccessful in obtaining a report. On 26 February 2015, Mr Hodges advised his intention to cease acting for Mr Kormali. By letter dated 2 March 2015 he notified the Tribunal that he no longer acted for Mr Kormali.
At a directions hearing on 11 March 2015, and after discussing what further evidence might be available, I advised Mrs Kormali that the matter should be listed for further hearing. A short time later, she telephoned the Tribunal and said that Mr Kormali was upset that he would be required to attend a further hearing. She was advised that the Tribunal could make a decision without a hearing if both parties consented. After consulting with Mr Kormali, she advised that he would prefer that the matter be decided based on the material already filed with the Tribunal, and she confirmed that he did not wish to make any further written submissions in support of his application.
The Secretary has consented to the matter being determined “on the papers”.
I am satisfied that Mr Kormali has provided all the material that he considers relevant to the review, and that he understands that a review “on the papers” will result in a final determination of his application. I am also satisfied that the issues for determination on the review can be adequately determined in the absence of the parties.
Relevant legislation
To qualify for DSP, a person must satisfy the criteria in s 94 of the Social Security Act 1991 (the Act). In summary, these are:
(a)a physical, intellectual or psychiatric impairment, or impairments, which is rated at 20 or more points according to the Impairment Tables in the Act; and
(b)a continuing inability to work as defined in the Act.
Mr Kormali had to satisfy these criteria on 6 September 2012 when he applied for DSP, or within 13 weeks, that is by 6 December 2012: s 42 and Sch 2 of the Social Security (Administration) Act 1999. I will call this the claim period.
The Impairment Tables are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011. They comprise 15 Tables by which the functional impact of impairment is rated as nil, mild, moderate, severe or extreme, corresponding to nil, five, ten, twenty and thirty points. Ratings are given according to descriptors, some or all of which must be satisfied, depending on the Table.
A rating can only be given to an impairment if the condition causing it is permanent: cl 6(3)(a). Permanent means that a condition is fully diagnosed by an appropriately qualified medical practitioner, and has been fully treated and is fully stabilised, and it is more likely than not to persist for more than two years: cl 6(4).
When deciding whether a condition has been fully diagnosed and fully treated, the following must be considered: whether there is corroborating evidence of the condition; what treatment or rehabilitation the person has had for the condition; and whether treatment is continuing or is planned in the next two years: cl 6(5).
Fully stabilised means either:
(i) the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(ii) the person has not undertaken reasonable treatment for the condition and:
i.significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
ii.there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Information about Mr Kormali’s impairment
The SSAT decision shows that Mr Kormali gave evidence at that hearing that his psychological problems probably started around 2001 and were likely caused by family violence he experienced as a child and adolescent, and then later due to his experiences serving in the Turkish military. He said he saw a psychiatrist when he left the military who prescribed medication but Mr Kormali decided against taking it and instead decided to move to Australia. He became unwell after moving to Australia and returned to Turkey in 2010 to seek treatment. Following his return to Australia, Mr Kormali says he continued to speak to his doctor in Turkey each month.
Dr Ehab Joseph, general practitioner, completed a medical report dated 11 September 2013 in support of Mr Kormali’s claim for DSP. Dr Joseph listed “schizoaffective disorder”, which had its onset in 2010, as the condition with the most impact on Mr Kormali. He indicated the diagnosis was supported by the further specialist opinion of Derya Guzel, a registered psychologist; that Mr Kormali’s current treatment was medication and he had received counselling for two months; and his future treatment was continued medication and counselling.
Dr Joseph described Mr Kormali’s symptoms at the time as “depressed not coping sad guilty feelings, not enjoying life, doesn’t want to talk to anyone except his wife”. He stated the condition was expected to persist for more than 24 months and the effect on Mr Kormali’s ability to function in the following two years was expected to “fluctuate”. He described the effect on Mr Kormali’s ability to function as “unable to think clearly, unable to work, unable to communicate”.
Dr Joseph also prepared three Centrelink medical certificates dated 10 January 2012, 16 April 2012 and 5 September 2012. On each form Dr Joseph indicated a diagnosis of schizophrenia, which he described as a temporary condition that was likely to improve in the next two years.
In a letter dated 17 March 2011 that appears to be to the provider of the English language course in which Mr Kormali was enrolled, Ms Guzel advised that Mr Kormali had commenced treatment for anxiety and depression due to difficulties adjusting to life in Australia. She described his condition as claustrophobia, panic attacks and difficulty concentrating. She recommended he cease studying “with the intention to resume once his emotional state improves”. According to the SSAT decision, Mr Kormali told the SSAT he attended three to four counselling sessions with Ms Guzel but found them very distressing and had not seen her since late 2011.
Dr Demirel’s report of 9 September 2014 states that Mr Kormali first sought treatment at his clinic in July 2010. He diagnosed Mr Kormali with obsessive compulsive disorder and panic disorder, and prescribed anti-depressants and medication to treat anxiety and panic disorders. He stated that the last contact he had with Mr Kormali was by telephone on 12 October 2013.
In a report dated 20 April 2014 to Centrelink, Dr Deepa Malik, psychiatrist, stated that Mr Kormali had been attending appointments since January 2014. He diagnosed “chronic schizophrenia, treatment resistant” and said his symptoms “persist despite compliance with a high dose of anti-psychotic medication”.
Was Mr Kormali’s psychiatric condition fully diagnosed, treated and stabilised during the claim period?
The introduction to Table 5 (Mental Health Function) states that, in order for a mental health condition to be considered fully diagnosed:
The diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).
It appears Mr Kormali has had various diagnoses of his condition since seeking treatment from Dr Demirel in Turkey in 2010. It is not clear whether Dr Demiral is a psychiatrist. The translation of his report describes him as “Mental Health Specialist”. Mrs Kormali believes he is a psychiatrist.
Dr Joseph is a general practitioner. He diagnosed Mr Kormali as suffering with schizoaffective disorder in September 2013. Although Dr Joseph indicated in his report that his diagnosis was supported by a psychiatrist or clinical psychologist, the only evidence is from Ms Guzel, who is a registered psychologist. This means the diagnosis provided by Dr Joseph does not meet the requirements set out in the Introduction to Table 5 of the Determination and I am not able to accept it for the purposes of Mr Kormali’s DSP claim.
It is possible, although not clear, that Dr Demirel is an appropriately qualified medical practitioner for the purposes of the Tables. However, even allowing that he is, it is by no means clear that Mr Kormali’s condition was in fact fully diagnosed by him. It was subsequently diagnosed differently by Dr Joseph, Ms Guzel and Dr Malik.
Even if Mr Kormali’s condition could be considered fully diagnosed during the claim period, I am not satisfied on the information before me that it was fully treated and stabilised during that period.
From Dr Demirel’s report, it appears Mr Kormali saw him for the first time on 3 July 2010. I accept Mr Kormali’s report to the SSAT that he had regular consultations with Dr Demirel over the phone, the last of which Dr Demirel notes was in October 2013. Dr Demirel refers to the medications he prescribed but there is no indication of whether they were effective, or of any follow up. It appears that Mr Kormali’s condition has deteriorated since he returned to Australia, and later diagnoses and treatment suggest the treatment prescribed by Dr Demirel and his diagnosis required further evaluation.
It appears from Ms Guzel’s report that, at least in early 2011, she anticipated some improvement in Mr Kormali’s condition. However, he stopped seeing her in late 2011 and, apart from his medication, he does not appear to have been under any treatment until January 2014 when he came under the care of Dr Malik. I am not satisfied that his condition could be considered fully treated and stabilised even at that time.
For these reasons I find Mr Kormali's condition was not fully treated and stabilised during the claim period. As this means his claim must fail, it is not necessary also to consider whether he had a continuing inability to work during the claim period.
Conclusion
According to Dr Malik, Mr Kormali suffers from a serious mental illness that is resistant to treatment. This suggests that, at the time of his report in April 2014, Mr Kormali’s condition may have been fully treated and stabilised. Dr Malik states that it “would significantly impair his ability to work in paid employment”.
Mr Kormali is entitled to apply again at any time that he believes he qualifies for DSP. It would be in his interests to make a further claim and test his eligibility.
33.
34. I certify that the preceding 32 (thirty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey.
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AssociateDated 18 March 2015
Date(s) of hearing
On the papers
Representatives for the Applicant
Self-represented
Representatives for the Respondent
Mr David McLaren, Seconded Lawyer
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