REEM BADRAN and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs - [2012] AATA 474

[2012] AATA 474

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2011/4575
Re	REEM BADRAN
APPLICANT
And	Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT

DECISION

Tribunal	Dr Kerry Breen, Member
Date	25 July 2012
Place	Melbourne

The Tribunal affirms the decision under review.

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

Dr Kerry Breen, Member

CATCHWORDS

SOCIAL SECURITY - disability support pension - anxiety and depression - thyroid disease - conditions not fully treated or stabilised - decision affirmed

LEGISLATION

Social Security Act 1991 s 94(1)

REASONS FOR DECISION

Dr Kerry Breen, Member

25 July 2012

Mrs Reem Badran suffers from anxiety and depression and thyroid disease. She first notified Centrelink of an intention to make a claim for disability support pension (DSP) on 8 December 2010 and lodged a claim on 14 December 2010. Centrelink is the service provider for the Department of Families, Housing, Community Services and Indigenous Affairs. The claim was supported by a medical report provided by a general practitioner, Dr M Chitgopeker, dated 14 December 2010.
On 15 December 2010 Mrs Badran underwent a Job Capacity Assessment at Centrelink’s request. The assessor advised that her medical conditions had not been fully treated or stabilised and that it was considered that within the next two years, with intervention, she would have a work capacity of more than 30 hours per week.
On 24 December 2010 Centrelink rejected Mrs Badran’s DSP claim. On 20 July 2011 the decision was reviewed by an authorised review officer (ARO), who affirmed the decision.
On 26 July 2011, Mrs Badran applied to the Social Security Appeals Tribunal (SSAT) for a review of the ARO’s decision. The SSAT conducted a hearing on 14 October 2011 at which Mrs Badran and her husband gave evidence by telephone. The SSAT affirmed the decision on 14 October 2011. Mrs Badran now seeks review of the SSAT decision by this Tribunal.

ISSUES

The issues to be determined are:

From what permanent medical conditions does Mrs Badran suffer?
What impairment ratings do her conditions attract? and
If the total impairment rating is 20 points or more, what is the impact of these conditions on her capacity to work?

The relevant assessment period is from 8 December 2010 to 9 March 2011.

LEGISLATION

The relevant legislation includes s 94(1) of the Social Security Act 1991 (the Act) and the Tables for the Assessment of Work-Related Impairment for Disability Support Pension (1997) (Impairment Tables). Section 94 (1) of the Act provides:
94(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)       one of the following applies:
(i)        the person has a continuing inability to work;

…

The Introduction to the Impairment Tables provides:

…

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 two years.

…

MEDICAL EVIDENCE

Mrs Badran is married with three children aged 5 years, 2 years, and 9 months. She worked full time for four years until March 2008 but stopped working when she was three months pregnant. Unfortunately, that pregnancy resulted in the delivery of a stillborn baby at 32 weeks of pregnancy in September 2008. This was a very distressing event for her and she became depressed. After discharge from hospital, she was referred to a hospital psychiatrist, Dr Rosemary Field. She saw Dr Field several times in the last three months of 2008. She stated that Dr Field recommended she take an antidepressant medication but Mrs Badran declined this treatment. She stopped seeing Dr Field but continued to see her general practitioner, Dr Khanna, regularly throughout 2009.
During 2009 she was investigated by Dr Khanna for symptoms that included dizziness and faintness. She stated that no diagnosis was established and that Dr Khanna concluded that her symptoms were in some way a part of her depression. She stated that she also declined Dr Khanna’s advice to take antidepressant medication.
In August 2010 Mrs Badran was diagnosed with thyrotoxicosis. An ultrasound examination showed a solitary nodule in the thyroid gland and a needle biopsy of the nodule raised the suspicion of thyroid cancer. She was informed that she would need surgery for the suspected thyroid cancer and she underwent the surgery on 20 December 2010. The concern about possible cancer greatly aggravated her emotional state and in February 2011 she was referred to a clinical psychologist, Dr Georgina Georgiou. She has continued to attend Dr Georgiou approximately every three weeks since then.
Because of her worsening emotional state and difficulty coping, in August 2010 Mrs Badran’s husband, Mr Riyad Abdallah, gave up his part-time job so that he could be at home to support and assist his wife.
In March 2011 Mrs Badran learned that her mother had died.
In 2011 Mrs Badran became pregnant. During this pregnancy, in June 2011, she was again seen by the hospital psychiatrist, Dr Field, who again recommended antidepressant medication. Mrs Badran again declined as she did not want to take this medication while she was pregnant. The baby was born on 14 September 2011 and Mrs Badran commenced taking Zoloft in a dose of 50 mg the next day. She is currently taking 100 mg.
Mrs Badran prepared a two-page statutory declaration dated 22 March 2011 which contains a description of her ill health since September 2010. The statement first outlines what happened in regard to her thyroid condition and goes on to state suffering from depression and anxiety since the illness (presumably a reference to her ill health since September 2010). The statement mentions that currently am 12 weeks pregnant and because I been (sic) taking Aspirin for my illness, it has damaged my wall stomach and vomiting blood.
Mrs Badran’s husband wrote a letter addressed to whom it may concern dated 22 July 2011. In that letter he stated Reem had acute thyrotoxicosis diagnosed on 18/8/10 and had surgery in 20/12/2010… He added Reem was under lots of physical & mental stress around her surgery and still sees psychologist for conselling (sic) and psychiatrist and her psychiatrist Dr Rosemary at Mercy Hospital prescribed antidepressive tablets.
The written medical evidence before the Tribunal consists of several letters and reports. These are:
·    a Medical Report Disability Support Pension form completed by general practitioner, Dr Mohan Chitgopeker, dated 14 December 2010;
·     a second Medical Report Disability Support Pension form completed by general practitioner, Dr Prabhjot Khanna, dated 12 January 2011 (both doctors work at the Mill Park Super Clinic);
·    a letter dated 21 December 2011 written by Dr Prabhjot Khanna in support of Mrs Badran’s DSP claim;
·     three letters dated 20 August 2011, 5 October 2011 and 17 December 2011 respectively, from Mrs Badran’s treating clinical psychologist, Dr Georgina Georgiou, summarising her views about the diagnosis and prognosis;
·     a copy of a report of an ultrasound examination of the thyroid gland dated 16 September 2010;
·    a copy of a pathology report dated 15 November 2010 on a fine needle sample of the thyroid gland;
·     a copy of a letter written by Dr Mark Fui of the Endocrine Clinic at Austin Health dated 23 November 2010 addressed to Dr Pankaj Khanna of the Mill Park Super Clinic,
·     a copy of a handwritten letter dated 14 December 2010 addressed to whom it may concern by a Dr Thuy Vu of Austin Health;
·    a medical certificate signed by Dr Prabhjot Khanna dated 3 May 2011;
·    a brief letter signed by Dr Bill Fleming, endocrine and general surgeon, of Austin Health dated 17 May 2011; and
·     a brief handwritten letter signed by Dr Kate Tyson, RMO, of the Mercy Hospital for Women dated 24 May 2011.
In the first document, dated 14 December 2010, Dr Chitgopeker described anxiety as the condition with the most impact and wrote recently diagnosed with thyroid gland disorder, possibly cancer. Has become very anxious. He noted that she was being treated with anxiolytics and was awaiting surgery. In response to a question as to the expected duration of the impact of her condition on her ability to function he ticked the response more than 24 months. He also noted that Mrs Badran had been attending the Mill Park Super Clinic since March 2008.
In the second document, dated 12 January 2011, Dr Khanna described two conditions in response to the question about the condition with the most impact. The first was depression / anxiety and the second was thyroiditis with thyroid nodule – showing suspicious cells. In response to a question about current symptoms, Dr Khanna wrote Depressed mood & anxiety. Very stressed by recent surgery & traumatised by the possible diagnosis of thyroid cancer and later noted still awaiting final report of histopathology. In response to a question about current treatment, Dr Khanna wrote counselling. In response to a question as to the expected duration the impact of Mrs Badran’s conditions on her ability to function, Dr Khanna marked the response 3-24 months.
In the third document, dated 21 December 2011, Dr Khanna wrote that Mrs Badran had been suffering from major depression for the past 2 years. He added She is recently being treated with antidepressants and Psychotherapy with a Psychologist regularly.
Clinical psychologist Dr Georgiou provided three reports. In her first report, dated 17 December 2011, Dr Georgiou wrote that she had first seen Mrs Badran on 2 February 2011 and had seen her regularly since then. She noted:
a history of severely low mood, suicidal ideation and extreme anxiety occurring in the context of multiple significant stressors and traumas. These included a stillbirth at 8 months of pregnancy two years ago, personal health issues (including a thyroid tumour requiring surgery on 20th December 2010), interpersonal stressors in relation to her family of origin, financial strain and more recently the passing of her mother. She recently gave birth to her third child and suffered a significant deterioration in her condition. Dr Georgiou diagnosed Mrs Badran with a chronic and recurrent Major Depressive Disorder and comorbid Generalised Anxiety Disorder.
In that report Dr Georgiou also wrote I believe that Reem would be unable to seek or retain employment for at least two years. ….. Reem is currently receiving treatment however, her recovery is expected to be a slow process.
The various medical documents emanating from Austin Health document the diagnosis of postpartum thyroiditis and left thyroid nodule leading to investigations that raised suspicion of thyroid cancer and led to surgical removal of part of the thyroid gland. In the Medical Report Disability Support Pension document dated 12 January 2011, Dr Khanna described the surgery as L hemithyroidectomy on 20.12.10 and noted post-operative issues including moderate pain & difficulty swallowing & speech.

OTHER MATERIAL

Job Capacity Assessor Sirma Aldogan (whose professional discipline was given as Registered Psychologist), saw Mrs Badran face-to-face on 15 December 2010. The Job Capacity Assessment (JCA) report noted the thyroid surgery planned for 20 December 2010 (i.e. five days later) and recorded that the assessment was informed by two reports (viz the Medical Report Disability Support Pension form completed by general practitioner, Dr Chitgopeker, dated 14 December 2010 and the pathology report dated 15 November 2010 on a fine needle sample of the thyroid gland.) The medical conditions were listed as Cancer/Tumour – Thyroid and Anxiety. The latter condition was designated temporary with a note that it was diagnosed: October 2010.Tx: nil. (Tribunal note: the symbol Tx is an abbreviation of treatment). The assessor reported that No verified Permanent, Fully Diagnosed, Treated and Stabilised conditions have been recorded, therefore Impairments cannot be recorded.
The respondent supplied a second JCA report based on an assessment made on 20 December 2011. This assessment was made in response to a new claim for DSP lodged on 20 December 2011 and is thus not directly relevant to the claim that this Tribunal is reviewing. However, it contains the following statement that may be relevant: Date of onset of depression was in 2008 after the loss of her child, she had psychiatric treatment with Dr Rosemary Field at the Royal Women’s hospital.
No reports were available from Dr Field and the reports of Dr Chitgopeker, Dr Khanna and Dr Georgiou do not mention the involvement of a psychiatrist in the care of Mrs Badran.
The SSAT reasons for decision document contains a detailed description of the account Mrs Badran gave to that Tribunal of her illnesses. The SSAT wrote the following
Anxiety/Depression. This has been a severe problem since 2008 when she had the stillbirth. She saw a psychiatrist at the Mercy Hospital, Dr Rosemary Field for a few visits in 2008, but no medication was prescribed. She had also been suffering from episodes of dizziness, fainting and low blood pressure, to the extent that she was fearful of driving or even holding her baby in case she fainted and caused injury. These episodes were extensively investigated both by her local doctor and the hospital and no cause was found. Eventually, her doctor formed the view that the symptoms were due to “stress” …..Her husband had to give up his employment as an accountant …. in order to care for her… In early 2011 she became pregnant again and was prescribed aspirin as a precautionary measure. She saw Dr Field, the psychiatrist again in June; the doctors were very concerned about her mental state and wanted her to take Zoloft during the pregnancy, but she refused due to the possible risk to the baby until after delivery. She started taking Zoloft at 50 mg daily the day after the baby was born, on 15 September 2011.

This Tribunal notes that the SSAT hearing was conducted a month later, on 14 October 2011.

CONSIDERATION OF THE ISSUES

Mrs Badran and her husband provided an account of her health issues since 2008 to this Tribunal that was essentially the same as that recorded by the SSAT. There is no dispute about the diagnoses of the medical conditions suffered by Mrs Badran. It is clear that she has suffered from depression and anxiety as well as thyroid disease.
Based on the evidence of Mrs Badran and her husband, and the reports of Dr Khanna and Dr Georgiou, I am satisfied that symptoms consistent with depression were present in 2008. The symptoms commenced as a response to a stillborn baby and have continued since then. It is difficult to determine in hindsight how disabling these symptoms were during 2008 and 2009. It is clear that Mrs Badran’s depression was not actively treated during this period, as she was quite frank in her evidence that she chose not to be treated with antidepressants until September 2011. At the time of her claim for DSP in December 2010, Mrs Badran had not yet been referred to the clinical psychologist, Dr Georgiou.
The distressing news about possible thyroid cancer in August 2010 clearly led to a worsening of Mrs Badran’s anxiety and depression. This is apparent from the medical reports of Dr Chitgopeker and Dr Khanna and the oral evidence of Mrs Badran and her husband. It was at this time that her husband gave up his work to support and care for his wife.
It is also relevant to note that in her a two-page statutory declaration dated 22 March 2011, Mrs Badran focussed on her ill health since September 2010. This document outlined her thyroid condition and stated suffering from depression and anxiety since the illness. The Tribunal infers that the phrase since the illness is in reference to her ill health since September 2010. Thus it would appear that at that time Mrs Badran attributed her severe distress to her (very understandable) reaction to the worrying news that she now had thyroid disease and may have had thyroid cancer.

CONCLUSIONS

From all the material before the Tribunal, it is not possible to conclude that at the relevant period (8 December 2010 to 9 March 2011), Mrs Badran’s illness of depression and anxiety had been adequately treated and stabilised. As provided above in paragraph 8,
the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised …… and 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…… and 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 two years.

Mrs Badran was not attending a psychiatrist or a clinical psychologist when she lodged her initial claim for DSP. While she was attending her general practitioner regularly at that time, she was not taking antidepressants. Thus I am not satisfied that, at the relevant time, Mrs Badran had received further reasonable medical treatment for her condition of anxiety and depression. Neither can I be satisfied that this condition was stabilised.

Neither is it possible to conclude that Mrs Badran’s thyroid condition had been adequately treated and stabilised during the relevant period, as the surgery was not undertaken until 20 December 2010.
In the absence of being adequately treated and stabilised, it is not possible to find that these conditions were permanent as at 8 December 2010 and during the following thirteen weeks up to 9 March 2011. Accordingly, I have not examined the subsequent issues of possible impairment or the awarding of impairment points.
Based on all the considerations outlined above, I am satisfied that the correct decision in this matter is that, at the relevant time, Mrs Badran did not satisfy the requirements of the Act and therefore was not entitled to receive DSP.

DECISION

The Tribunal affirms the decision under review.

I certify that the thirty-six [36] preceding paragraphs are a true copy of the reasons for the decision of:

Dr Kerry Breen, Member

Signed: ……………[sgd]………………………….

Associate

Date of hearing: 2 July 2012

Date of decision: 25 July 2012

Advocate for the applicant: Mr Riyad Abdallah

Advocate for the respondent: Mr Tim Noonan