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Al Assadi and Secretary, Department of Employment and Workplace Relations [2006] AATA 703 (26 July 2006)

Last Updated: 17 August 2006

Administrative

Appeals

Tribunal

WRITTEN REASONS FOR ORAL DECISION [2006] AATA 703

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2005/351

GENERAL ADMINISTRATIVE DIVISION		)
	Re		IHSAN AL ASSADI

Applicant

And

SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal	Senior Member, Mrs Josephine Kelly and Member, Dr Max Thorpe

Date 26 July 2006

Date of Written Reasons 16 August 2006

Place Sydney

Decision	The decision under review is affirmed.

	............................................

Signed Senior Member, Mrs Josephine Kelly
Presiding Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – impairment rating – ability to work – knee injury, depression, Post-traumatic stress disorder (PTSD) claimed – applicant’s evidence found to be exaggerated and unreliable – decision affirmed

LEGISLATION

Social Security Act 1991 s94

WRITTEN REASONS

1. At the conclusion of the hearing of this matter, the terms of the decision made and the reasons for that decision were stated orally. The Respondent requested the Tribunal to furnish a statement in writing of the reasons for its decision pursuant to sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975.
2. The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service, and edited only to the extent necessary to ensure clarity of expression, without in any way changing the reasons. The edited transcript comprises the reasons for the Tribunal’s decision and is annexed, and furnished to the Applicant and to the Respondent.

WRITTEN REASONS FOR ORAL DECISION
Senior Member, Mrs Josephine Kelly and Member,
Dr Max Thorpe

The following is the Tribunal’s decision in the matter of Al Assadi and the Department of Employment and Workplace Relations.

Introduction

3. Mr Al Assadi is 47 years old and was born in Iraq. He arrived in Australia from Saudi Arabia as a refugee in November 1994. He was on a Newstart allowance from around the time of his arrival until he was granted the Disability Support Pension (‘DSP’) on 15 November 2001 based on conditions of left knee injury and depression.
4. In March 2003, Mr Al Assadi was examined by an HSA Nurse (T23) and Dr Arad of HSA (T24). Dr Arad assessed that Mr Al Assadi had an impairment rating of 10 points in respect of his left knee injury and that he was medically fit for restricted full time light work. The depression was not taken into account. On the basis of this assessment Mr Al Assadi’s DSP was cancelled on 12 May 2004 although later temporarily reinstated. Following a review process cancellation was confirmed on 12 January 2005. He is seeking a review of that decision which was affirmed by the Social Security Appeals Tribunal on 9 March 2005.

Issues

5. The issue before the Tribunal is whether at the time the DSP was cancelled Mr Al Assadi qualified for it. Mr Lozynsky who appeared for the Respondent Department acknowledged that Mr Al Assadi does have an impairment rating of 20 points, which satisfies the first aspect of legislation. That is 10 points for his left knee and 10 points for his psychiatric condition based on the report of Dr Lovric, psychiatrist. However, Mr Lozynsky acknowledged that this Tribunal has to make its own decision on the evidence, that is the correct or preferable decision, and that may require us to come to a different finding.
6. It is not disputed that Mr Al Assadi injured his knee in 1998 during a volleyball match and had an anterior cruciate ligament reconstruction operation in June 1999.

Evidence of Mr Al Assadi

7. Prior to coming to Australia Mr Al Assadi was a Civil Engineer and worked in a supervisory role. However, in Australia he has not actively sought work. He said that he was a prisoner in Iraq and tortured. He studied engineering after he finished high school. He had studied English at school from year 5 and had lectures in English at university when that was the language spoken by the lecturer. He was imprisoned for 3 years and tortured. He said that he had suffered nightmares from 1985 and has nightmares 3 times a week and sleeps separately from his wife because he hit her accidentally. In his nightmares he sees himself and his friends being tortured. He referred to a nervous breakdown and being unstable of mind. He has lost a significant amount of memory he said. After his release from gaol he said he worked for 8 years in Iraq supervising building and construction because he was threatened that he would go to gaol if he did not. He did not dare to consult doctors, which we infer means about his condition.
8. When in Australia he did not look for work from 1994 until he injured his left knee in November 1998. From 1994 until 1995 he said he was trying to get his wife and son out of Iraq. Until 1996 he was trying to get his parents and brothers and sisters out from Saudi Arabia where they were in a refugee camp. From 1996 to 1998 he said he was new in Australia and he was still worried about his other brothers in Iraq. His eldest brother was executed and their home was destroyed. He was a new arrival in Australia during that period and did not know where to go or the language. He was anxious about his three brothers in Iraq including the one who was executed. When asked if he was relying on Centrelink benefits, he said that Centrelink was there to support him indefinitely, and he was aware of that from the legislation. But he had planned to find a job before the accident occurred and he was ambitious to pursue study and education.
9. After he injured his left knee while playing volleyball, he saw his own doctor, had an x-ray and was referred to a Dr McArthur, an orthopaedic surgeon. He had physiotherapy and did exercises at home but there was no improvement. He saw the specialist again and then had the operation in June 1999. He was granted the DSP in 2001 and was surprised when it was cut off in 2004. He said coming to the Tribunal on Monday he had to sit down when he walked from Museum Station to the Market Street premises of this Tribunal. He had most difficulty climbing stairs. He said his legs would start to hurt him. He still goes to a pain management clinic to which Dr McArthur referred him. He first went there soon after the DSP was cancelled. In coming to the Tribunal his brother drove him to the station where he caught the train to the city.
10. On review at the end of 2003 Mr Al Assadi’s treating doctor noted in respect of the left knee his current symptoms were "locking, linking, stiffness and severe pain of knee". The impact on function was described as "cannot stand for long time, cannot walk or climb, ... difficulty while sitting, may develop post traumatic osteo arthritis." That doctor also noted that Mr Al Assadi may need another operation.
11. Since 12 May 2004 Mr Al Assadi said his leg has got worse. His day is spent visiting relatives who are a few minutes drive away, reading, including Arabic newspapers, and watching satellite television. He drives his children to school and sometimes takes them to the park. He attends Friday prayers but keeps his left leg straight when kneeling for prayer. He takes his wife shopping but does not push the trolley or carry heavy bags. He can travel on a bus or train but does not generally use public transport and he has trouble climbing stairs. Generally, as described above, he drives to where he wishes to go.
12. In cross-examination, when asked about Dr Harvey-Sutton’s comment that he had no difficulty in the examination room, he said the doctor misunderstood and his left leg hurt him a lot. When asked about Ms Prasad’s comment in September 2004 that he had no limp in and out of the office and transferred without difficulty, he said the office was very small and he could manage.
13. His treatment comprises rubbing cream on his leg, wearing a knee support and exercises. If he is in severe pain he takes medication which he feels gives him temporary relief.
14. He denied the suggestion that he exaggerated his problem and said that he wanted to go back to work to be normal.
15. He began a Masters of Civil Engineering at the University of Technology Sydney soon after his 1998 knee injury but stopped because of the injury.
16. The first medical intervention for depression was in 2000 when he saw Dr Moustapha, psychologist. He was also referred to START a body dealing with trauma. His DSP application in January 2001 refers to depression "caused by torture and trauma" and ligament injury in the left knee. In the Medical Review dated August 2001 (T14), he set out two medical conditions: the left knee and depression. It is stated that the depression started "3 years ago" and affects him in terms of poor concentration and poor memory. The treating doctor’s report dated 20 August 2001 also states the date of onset of major depression was 3 years. That report assessed 10 points for his left knee and 10 points for major depression, and found him unfit for full-time work over the next 2 years and recommended a review after 2 years.
17. When asked why he did not tell the authorised review officer (‘ARO’) in 2004 about his depression, he responded that his answers were limited according to the questions asked. He was also asked why he told Ms Sarnecki, psychologist, that the symptoms noted by Mr Moustapha in 2000 were not real issues in his life, he said he still suffers from poor concentration and that his situation was exactly contrary to what she noted. He said he told Ms Sarnecki that should both conditions improve he would pursue full time study but they were still obstacles preventing him working or pursuing education. He said he stopped his medication soon after stopping seeing Mr Moustaffa. He said he was confused.
18. He is able to look after all aspects of his daily living except that he has his wife or daughter tie his shoelaces sometimes, and his wife massages his leg. He does no housework because in his culture that is his wife’s job.

Travel

19. He travelled to Mecca in 1999, Syria in March 2000, Syria in February to March 2001, Mecca in March 2002 and January 2004. In May to June 2004 he accompanied his father’s body to Iraq for burial. In December 2005 to February 2006 he went to Mecca and then Iraq. In April 2006 he went to the south of Iraq via Kuwait to bring his mother home. When he went to Mecca he travelled in a group where he said there were people to help those with disabilities. On one of the recent occasions in Mecca, he walked around the cube in the middle of the arena twice but then used a wheelchair which was pushed by someone else. He denied having trouble when he travelled because he said he prepared suitable transportation beforehand.
20. When questioned about his ability to speak English he said he studied it from year 5 in high school and attended lectures at university from English speaking lecturers. He says he "suffers" from the accent.
21. He says he was not interested in any particular work at the moment. He suffered from a lack of concentration and could not cope with working on computers. He disagreed with Dr Lovric’s opinion that his PTSD did not prevent him from working or being retrained he said because of his lack of concentration.
22. He denied withdrawing from the CRS program to pursue other matters regarding his family. He said he was told he did not fit the program. CRS noted that he was not interested in pursuing the job idea and he was focused on getting his DSP back. He said, "how did they read my mind?". He said he did attend programs for some months but there was no improvement. The CRS report is at S10.
23. When questioned by the Tribunal about his concentration being very good in the Tribunal from 10.30 am until about 12 noon he said he did not have to concentrate. Mr Al Assadi has five children, one born in 1991 and then four were born in Australia in 1996, 1997, 1999 and 2005.

Medical Evidence

24. In September 2004 Dr Ma, HSA medical adviser, found Mr Al Assadi had a total impairment rating of zero, that he was medically fit for full-time suitable work and that he had certain barriers and interventions. Dr Ma considered both the left knee condition and the depression which was noted to have begun in 1984.
25. The decision to cancel the DSP on this basis was reconsidered and 10 points were allocated for the left knee in the context of the previous points allocated by Dr Arad in March 2004 when he noted that Mr Al Assadi could walk up and down the stairs holding a handrail and was observed to be limping.
26. In his request for a review of the decision Mr Al Assadi relied only on his left knee injury. When he spoke to the ARO on 30 December 2004 he also did not rely on depression and I refer to the matters referred to earlier. The ARO noted that he spoke English well, was easily understood and discussed the restrictions on his knee. He said he could walk for 15 to 30 minutes, then he stops and massages his knee with ointment. When the weather is cold he may use a walking stick.
27. Mr Moustapha, psychologist, filled out a treating doctor’s report in September 2000. He noted the condition of PTSD, the symptoms complained of and that treatment included relaxation therapy, counselling and trauma relief psychotherapy. He noted the condition was likely to persist for at least 2 years but Mr Al Assadi could return to work or study in 6 to 12 months. The date of onset was noted to be October 1999 and the patient was first seen on 1 October 1999. Mr Moustapha noted Mr Al Assadi’s usual job was security, full time. In the report in January 2001, Mr Moustapha noted that Mr Al Assadi has been 24 times to the practice in the last 12 months. In that report he stated that the patient would be able to return to work in more than two years.
28. Mr Al Assadi attended CRS Australia and they prepared a report based on his work ability. They noted that the primary objective was to "identify a suitable job". In a meeting with the Rehabilitation Counsellor Mr Al Assadi instructed them that he was not interested in finding a job and instead was focused on getting the DSP restored. Motivational career counselling was unsuccessful in helping Mr Al Assadi find any realistic job opportunities. It was recommended that he find work in the area of community service.
29. Recommendations were made that he attend a Personal Support Program at Centrelink and that he indicates that he was interested in attending TAFE for a computer or community services course. Mr Al Assadi was recommended to actively participate in the program in his medical and psychological conditions should be stable.
30. We had the benefit of two reports (dated 30 May 2005 and 22 November 2005) from Dr Dinnen, psychiatrist, who conducted a clinical examination of Mr Al Assadi and recorded a detailed history. There was a psychiatric history taken which says that "he is irritable and always nervous." He often has a disturbed night’s sleep and goes for a drive to get some fresh air. He sometimes gets annoyed with the children and hits them.
31. He believes that his leg is the main problem and it is his leg that stops him from working rather than his nervous condition. He gave a history of being afraid to return to Iraq and worries about his country.
32. In Dr Dinnen’s opinion Mr Al Assadi suffers from chronic PTSD. Dr Dinnen described the condition as being stable and present for many years. That doctor’s opinion was that this chronic condition has impeded Mr Al Assadi’s ability to pursue further education and training in Australia. Dr Dinnen believed that his inability to obtain employment in the last 10 years in Australia is the "best indicator of the malignant consequences of his psychiatric condition consequent to traumatic experience."
33. He does not think that Mr Al Assadi will be able to work 30 hours a week within the next two years and that the psychiatric condition alone would prevent work being undertaken for such a period within the next two years. This is because of the effect of the condition on his memory, concentration, ability to interact in the workplace and "his vulnerability to exposure to day-to-day stressors in the workplace".

Medical report of Dr Harvey-Sutton (S2)

34. Dr Harvey-Sutton noted that Mr Al Assadi presented with the conditions of a painful left knee and depression. After taking a detailed history and reviewing his medical file and performing a clinical examination Dr Harvey-Sutton reached the following recommendations.
35. As an Occupational Physician she did not believe that Mr Al Assadi’s emotional and behavioural condition impacts on his capacity to work. She also believes that he should have made a complete recovery from his knee injury and that should not cause him any restrictions.
36. She believes that Mr Al Assadi could work more than 30 hours per week within the next two years. The reason is that he presented as a healthy man and that she believes that his symptoms now are the same as when his DSP was cancelled. She also believes that his disabilities would not prevent him from undergoing any vocational training.

Report of Dr Aji Chara

37. Dr Chara did not assess Mr Al Assadi but conducted a review of the documents to reach a recommendation. He lists the documents reviewed in his report. His recommendation is that in respect of Mr Al Assadi’s left knee, there is a moderate interference with walking, and there should be a 10 point impairment rating.
38. He recognised that he was not a psychiatrist but did not agree with Dr Dinnen’s assessment of a 10 point impairment rating for the PTSD. His opinion was that the condition was mild and causes no significant impairment or interference with every day living and accordingly he assigned a nil impairment rating. Dr Chara also was of the opinion that Mr Al Assadi was capable of working light full time work of at least 30 hours a week in May 2004 and that he is still capable of that today.

Report of Ms Omnia El Mecery

39. Ms El Mecery (Psychologist) (S5, S7 and S11) examined Mr Al Assadi on his claim for PTSD and does not offer any opinion on the condition of his left knee. She recorded an assignment of a nil point assessment rating for his PTSD and that Mr Al Assadi does have a continuing ability to work although his ability is somewhat restricted and limited. She indicated that with educational training, vocational training or on the job training, currently he could work 8 to 14 hours per week; within 6 months he could work between 15 to 29 hours per week; within 6 to 24 months he could work 15 to 29 hours per week, and in more than 24 months he could work 30 hours a week plus.
40. She acknowledged that Mr Al Assadi did have symptoms of PTSD, but when he presented for examination they were not clinically significant enough to prevent him from engaging in full time work. She noted that he was currently studying and participating in social activities. It was not acknowledged by Mr Al Assadi that his PTSD affected his study. He had also recently attended a pilgrimage to Mecca.
41. Ms El Mecery believes Mr Al Assadi’s irritability will not stop his being employed in suitable work which does not require too much interaction with others. In relation to his disturbed sleep pattern she considered that work hours could be accommodated to suit him. He had occasional depression but she did not consider that that could be a barrier to employment as he does not suffer from depression all the time. He also told her that he was nervous but due to his appearance at the interview Ms El Mecery believed that he manages his nervousness very well.
42. Ms El Mecery recorded that he had not undergone any rehabilitation programs to find suitable work and recommended that he seek and receive help from CRS in order to return to the workforce.

Report of Lucy Sarnecki

43. Lucy Sarnecki (Psychologist) (S12) was at the interview that Ms El Mecery undertook with Mr Al Assadi. In her opinion he has symptoms of PTSD, however, she notes that he did not believe that his memory or lack of concentration would stand in his way of work or education if he knee condition would allow this. He also indicated that he enjoyed being socially active. She described his psychological disturbances as mild and did not believe that they would prevent him from working 30 hours a week plus.

Report of Dr Kathryn Lovric

44. Dr Kathryn Lovric, consultant psychiatrist, also provided a report. Her report only dealt with the matter of his mental condition.
45. Based on the reports and meeting with Mr Al Assadi, Dr Lovric determined that under the impairment tables he should be assigned a rating of 10 points. In terms of continuing inability to work she completed a very detailed history and noted that he had some moderate and regular symptoms and some difficulty with general functioning. Mr Al Assadi told her that he’d reduced his recreational pursuits due to his leg problems and motivational issues. He noted that he’s not currently seeking any psychiatric treatment. She also noted his current sleep difficulty would have a minor effect on his work attendance or capacity to work but would not prevent full time work.
46. She recommended appropriate treatment for his PTSD and that he may benefit for some short term prescription of a sedating anti-depressant medication.
47. I note that we had the benefit of oral evidence from both Ms El Mecery and Ms Sarnecki.

Law

48. The relevant provisions of the Social Security Act 1991 are contained in section 94 and I don’t deal with them in detail here. Section 94 sets out the requirements that there be an impairment, that impairment is 20 points in the impairment tables and that the person has an inability to work and relevant definitions are within that provision.

Consideration

49. Taking into account all of the evidence before us it is our opinion that Mr Al Assadi’s evidence of the impact of his conditions on his life were exaggerated and unreliable. We find that his English ability is good. He exaggerated his poor grasp of English throughout the hearing relying on the interpreter and seeking clarification from the interpreter continually. Mr Al Assadi was able to study for a Masters degree in Civil Engineering in Australia without language difficulty. His reason for ceasing that study was his knee condition only.
50. Various individuals have commented on his ability to speak English including Dr Harvey-Sutton. He saw Dr Dinnen also without an interpreter and apparently without any difficulty. We find that Mr Al Assadi’s statements to CRS that he was focused on getting his DSP back reflects his attitude. Further, we find that he did comment to Ms Sarnecki that his symptoms of depression are not an issue in his life and we find that that is the case.
51. Dr Dinnen’s opinion and that of Dr Lovric are based on an acceptance of Mr Al Assadi’s complaints as made to them.
52. As Mr Al Assadi’s evidence is unreliable we accept that he suffered an injury to his left knee but we are not persuaded that his condition should be attributed any points under the relevant table.
53. In respect of his depression or PTSD condition it arose at the time he was claiming a DSP. The symptoms are self-reported. We are not persuaded that his complaints of symptoms have ever been genuine, however, accepting that he has the condition we are not persuaded that the symptoms are such as to warrant the allocation of points under the table. We consider that he is able to undertake full time work or retraining.

Decision

54. For those reasons we affirm the decision under review.

I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member,
Mrs Josephine Kelly and Member, Dr Max Thorpe

Signed: Ms Preethi Nimmagadda
Associate

Dates of Hearing 6 March 2006 & 24 July 2006
Date of Decision 26 July 2006
Date of Written Reasons 16 August 2006
Solicitor for the Applicant Farah Lawyers
Advocate for the Respondent Centrelink Legal Services Branch

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1.	At the conclusion of the hearing of this matter, the terms of the decision made and the reasons for that decision were stated orally. The Respondent requested the Tribunal to furnish a statement in writing of the reasons for its decision pursuant to sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975.
2.	The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service, and edited only to the extent necessary to ensure clarity of expression, without in any way changing the reasons. The edited transcript comprises the reasons for the Tribunal’s decision and is annexed, and furnished to the Applicant and to the Respondent.

7.	Prior to coming to Australia Mr Al Assadi was a Civil Engineer and worked in a supervisory role. However, in Australia he has not actively sought work. He said that he was a prisoner in Iraq and tortured. He studied engineering after he finished high school. He had studied English at school from year 5 and had lectures in English at university when that was the language spoken by the lecturer. He was imprisoned for 3 years and tortured. He said that he had suffered nightmares from 1985 and has nightmares 3 times a week and sleeps separately from his wife because he hit her accidentally. In his nightmares he sees himself and his friends being tortured. He referred to a nervous breakdown and being unstable of mind. He has lost a significant amount of memory he said. After his release from gaol he said he worked for 8 years in Iraq supervising building and construction because he was threatened that he would go to gaol if he did not. He did not dare to consult doctors, which we infer means about his condition.
8.	When in Australia he did not look for work from 1994 until he injured his left knee in November 1998. From 1994 until 1995 he said he was trying to get his wife and son out of Iraq. Until 1996 he was trying to get his parents and brothers and sisters out from Saudi Arabia where they were in a refugee camp. From 1996 to 1998 he said he was new in Australia and he was still worried about his other brothers in Iraq. His eldest brother was executed and their home was destroyed. He was a new arrival in Australia during that period and did not know where to go or the language. He was anxious about his three brothers in Iraq including the one who was executed. When asked if he was relying on Centrelink benefits, he said that Centrelink was there to support him indefinitely, and he was aware of that from the legislation. But he had planned to find a job before the accident occurred and he was ambitious to pursue study and education.
9.	After he injured his left knee while playing volleyball, he saw his own doctor, had an x-ray and was referred to a Dr McArthur, an orthopaedic surgeon. He had physiotherapy and did exercises at home but there was no improvement. He saw the specialist again and then had the operation in June 1999. He was granted the DSP in 2001 and was surprised when it was cut off in 2004. He said coming to the Tribunal on Monday he had to sit down when he walked from Museum Station to the Market Street premises of this Tribunal. He had most difficulty climbing stairs. He said his legs would start to hurt him. He still goes to a pain management clinic to which Dr McArthur referred him. He first went there soon after the DSP was cancelled. In coming to the Tribunal his brother drove him to the station where he caught the train to the city.
10.	On review at the end of 2003 Mr Al Assadi’s treating doctor noted in respect of the left knee his current symptoms were "locking, linking, stiffness and severe pain of knee". The impact on function was described as "cannot stand for long time, cannot walk or climb, ... difficulty while sitting, may develop post traumatic osteo arthritis." That doctor also noted that Mr Al Assadi may need another operation.
11.	Since 12 May 2004 Mr Al Assadi said his leg has got worse. His day is spent visiting relatives who are a few minutes drive away, reading, including Arabic newspapers, and watching satellite television. He drives his children to school and sometimes takes them to the park. He attends Friday prayers but keeps his left leg straight when kneeling for prayer. He takes his wife shopping but does not push the trolley or carry heavy bags. He can travel on a bus or train but does not generally use public transport and he has trouble climbing stairs. Generally, as described above, he drives to where he wishes to go.
12.	In cross-examination, when asked about Dr Harvey-Sutton’s comment that he had no difficulty in the examination room, he said the doctor misunderstood and his left leg hurt him a lot. When asked about Ms Prasad’s comment in September 2004 that he had no limp in and out of the office and transferred without difficulty, he said the office was very small and he could manage.
13.	His treatment comprises rubbing cream on his leg, wearing a knee support and exercises. If he is in severe pain he takes medication which he feels gives him temporary relief.
14.	He denied the suggestion that he exaggerated his problem and said that he wanted to go back to work to be normal.
15.	He began a Masters of Civil Engineering at the University of Technology Sydney soon after his 1998 knee injury but stopped because of the injury.
16.	The first medical intervention for depression was in 2000 when he saw Dr Moustapha, psychologist. He was also referred to START a body dealing with trauma. His DSP application in January 2001 refers to depression "caused by torture and trauma" and ligament injury in the left knee. In the Medical Review dated August 2001 (T14), he set out two medical conditions: the left knee and depression. It is stated that the depression started "3 years ago" and affects him in terms of poor concentration and poor memory. The treating doctor’s report dated 20 August 2001 also states the date of onset of major depression was 3 years. That report assessed 10 points for his left knee and 10 points for major depression, and found him unfit for full-time work over the next 2 years and recommended a review after 2 years.
17.	When asked why he did not tell the authorised review officer (‘ARO’) in 2004 about his depression, he responded that his answers were limited according to the questions asked. He was also asked why he told Ms Sarnecki, psychologist, that the symptoms noted by Mr Moustapha in 2000 were not real issues in his life, he said he still suffers from poor concentration and that his situation was exactly contrary to what she noted. He said he told Ms Sarnecki that should both conditions improve he would pursue full time study but they were still obstacles preventing him working or pursuing education. He said he stopped his medication soon after stopping seeing Mr Moustaffa. He said he was confused.
18.	He is able to look after all aspects of his daily living except that he has his wife or daughter tie his shoelaces sometimes, and his wife massages his leg. He does no housework because in his culture that is his wife’s job.

19.	He travelled to Mecca in 1999, Syria in March 2000, Syria in February to March 2001, Mecca in March 2002 and January 2004. In May to June 2004 he accompanied his father’s body to Iraq for burial. In December 2005 to February 2006 he went to Mecca and then Iraq. In April 2006 he went to the south of Iraq via Kuwait to bring his mother home. When he went to Mecca he travelled in a group where he said there were people to help those with disabilities. On one of the recent occasions in Mecca, he walked around the cube in the middle of the arena twice but then used a wheelchair which was pushed by someone else. He denied having trouble when he travelled because he said he prepared suitable transportation beforehand.
20.	When questioned about his ability to speak English he said he studied it from year 5 in high school and attended lectures at university from English speaking lecturers. He says he "suffers" from the accent.
21.	He says he was not interested in any particular work at the moment. He suffered from a lack of concentration and could not cope with working on computers. He disagreed with Dr Lovric’s opinion that his PTSD did not prevent him from working or being retrained he said because of his lack of concentration.
22.	He denied withdrawing from the CRS program to pursue other matters regarding his family. He said he was told he did not fit the program. CRS noted that he was not interested in pursuing the job idea and he was focused on getting his DSP back. He said, "how did they read my mind?". He said he did attend programs for some months but there was no improvement. The CRS report is at S10.
23.	When questioned by the Tribunal about his concentration being very good in the Tribunal from 10.30 am until about 12 noon he said he did not have to concentrate. Mr Al Assadi has five children, one born in 1991 and then four were born in Australia in 1996, 1997, 1999 and 2005.

24.	In September 2004 Dr Ma, HSA medical adviser, found Mr Al Assadi had a total impairment rating of zero, that he was medically fit for full-time suitable work and that he had certain barriers and interventions. Dr Ma considered both the left knee condition and the depression which was noted to have begun in 1984.
25.	The decision to cancel the DSP on this basis was reconsidered and 10 points were allocated for the left knee in the context of the previous points allocated by Dr Arad in March 2004 when he noted that Mr Al Assadi could walk up and down the stairs holding a handrail and was observed to be limping.
26.	In his request for a review of the decision Mr Al Assadi relied only on his left knee injury. When he spoke to the ARO on 30 December 2004 he also did not rely on depression and I refer to the matters referred to earlier. The ARO noted that he spoke English well, was easily understood and discussed the restrictions on his knee. He said he could walk for 15 to 30 minutes, then he stops and massages his knee with ointment. When the weather is cold he may use a walking stick.
27.	Mr Moustapha, psychologist, filled out a treating doctor’s report in September 2000. He noted the condition of PTSD, the symptoms complained of and that treatment included relaxation therapy, counselling and trauma relief psychotherapy. He noted the condition was likely to persist for at least 2 years but Mr Al Assadi could return to work or study in 6 to 12 months. The date of onset was noted to be October 1999 and the patient was first seen on 1 October 1999. Mr Moustapha noted Mr Al Assadi’s usual job was security, full time. In the report in January 2001, Mr Moustapha noted that Mr Al Assadi has been 24 times to the practice in the last 12 months. In that report he stated that the patient would be able to return to work in more than two years.
28.	Mr Al Assadi attended CRS Australia and they prepared a report based on his work ability. They noted that the primary objective was to "identify a suitable job". In a meeting with the Rehabilitation Counsellor Mr Al Assadi instructed them that he was not interested in finding a job and instead was focused on getting the DSP restored. Motivational career counselling was unsuccessful in helping Mr Al Assadi find any realistic job opportunities. It was recommended that he find work in the area of community service.
29.	Recommendations were made that he attend a Personal Support Program at Centrelink and that he indicates that he was interested in attending TAFE for a computer or community services course. Mr Al Assadi was recommended to actively participate in the program in his medical and psychological conditions should be stable.
30.	We had the benefit of two reports (dated 30 May 2005 and 22 November 2005) from Dr Dinnen, psychiatrist, who conducted a clinical examination of Mr Al Assadi and recorded a detailed history. There was a psychiatric history taken which says that "he is irritable and always nervous." He often has a disturbed night’s sleep and goes for a drive to get some fresh air. He sometimes gets annoyed with the children and hits them.
31.	He believes that his leg is the main problem and it is his leg that stops him from working rather than his nervous condition. He gave a history of being afraid to return to Iraq and worries about his country.
32.	In Dr Dinnen’s opinion Mr Al Assadi suffers from chronic PTSD. Dr Dinnen described the condition as being stable and present for many years. That doctor’s opinion was that this chronic condition has impeded Mr Al Assadi’s ability to pursue further education and training in Australia. Dr Dinnen believed that his inability to obtain employment in the last 10 years in Australia is the "best indicator of the malignant consequences of his psychiatric condition consequent to traumatic experience."
33.	He does not think that Mr Al Assadi will be able to work 30 hours a week within the next two years and that the psychiatric condition alone would prevent work being undertaken for such a period within the next two years. This is because of the effect of the condition on his memory, concentration, ability to interact in the workplace and "his vulnerability to exposure to day-to-day stressors in the workplace".

34.	Dr Harvey-Sutton noted that Mr Al Assadi presented with the conditions of a painful left knee and depression. After taking a detailed history and reviewing his medical file and performing a clinical examination Dr Harvey-Sutton reached the following recommendations.
35.	As an Occupational Physician she did not believe that Mr Al Assadi’s emotional and behavioural condition impacts on his capacity to work. She also believes that he should have made a complete recovery from his knee injury and that should not cause him any restrictions.
36.	She believes that Mr Al Assadi could work more than 30 hours per week within the next two years. The reason is that he presented as a healthy man and that she believes that his symptoms now are the same as when his DSP was cancelled. She also believes that his disabilities would not prevent him from undergoing any vocational training.

39.	Ms El Mecery (Psychologist) (S5, S7 and S11) examined Mr Al Assadi on his claim for PTSD and does not offer any opinion on the condition of his left knee. She recorded an assignment of a nil point assessment rating for his PTSD and that Mr Al Assadi does have a continuing ability to work although his ability is somewhat restricted and limited. She indicated that with educational training, vocational training or on the job training, currently he could work 8 to 14 hours per week; within 6 months he could work between 15 to 29 hours per week; within 6 to 24 months he could work 15 to 29 hours per week, and in more than 24 months he could work 30 hours a week plus.
40.	She acknowledged that Mr Al Assadi did have symptoms of PTSD, but when he presented for examination they were not clinically significant enough to prevent him from engaging in full time work. She noted that he was currently studying and participating in social activities. It was not acknowledged by Mr Al Assadi that his PTSD affected his study. He had also recently attended a pilgrimage to Mecca.
41.	Ms El Mecery believes Mr Al Assadi’s irritability will not stop his being employed in suitable work which does not require too much interaction with others. In relation to his disturbed sleep pattern she considered that work hours could be accommodated to suit him. He had occasional depression but she did not consider that that could be a barrier to employment as he does not suffer from depression all the time. He also told her that he was nervous but due to his appearance at the interview Ms El Mecery believed that he manages his nervousness very well.
42.	Ms El Mecery recorded that he had not undergone any rehabilitation programs to find suitable work and recommended that he seek and receive help from CRS in order to return to the workforce.

44.	Dr Kathryn Lovric, consultant psychiatrist, also provided a report. Her report only dealt with the matter of his mental condition.
45.	Based on the reports and meeting with Mr Al Assadi, Dr Lovric determined that under the impairment tables he should be assigned a rating of 10 points. In terms of continuing inability to work she completed a very detailed history and noted that he had some moderate and regular symptoms and some difficulty with general functioning. Mr Al Assadi told her that he’d reduced his recreational pursuits due to his leg problems and motivational issues. He noted that he’s not currently seeking any psychiatric treatment. She also noted his current sleep difficulty would have a minor effect on his work attendance or capacity to work but would not prevent full time work.
46.	She recommended appropriate treatment for his PTSD and that he may benefit for some short term prescription of a sedating anti-depressant medication.
47.	I note that we had the benefit of oral evidence from both Ms El Mecery and Ms Sarnecki.

49.	Taking into account all of the evidence before us it is our opinion that Mr Al Assadi’s evidence of the impact of his conditions on his life were exaggerated and unreliable. We find that his English ability is good. He exaggerated his poor grasp of English throughout the hearing relying on the interpreter and seeking clarification from the interpreter continually. Mr Al Assadi was able to study for a Masters degree in Civil Engineering in Australia without language difficulty. His reason for ceasing that study was his knee condition only.
50.	Various individuals have commented on his ability to speak English including Dr Harvey-Sutton. He saw Dr Dinnen also without an interpreter and apparently without any difficulty. We find that Mr Al Assadi’s statements to CRS that he was focused on getting his DSP back reflects his attitude. Further, we find that he did comment to Ms Sarnecki that his symptoms of depression are not an issue in his life and we find that that is the case.
51.	Dr Dinnen’s opinion and that of Dr Lovric are based on an acceptance of Mr Al Assadi’s complaints as made to them.
52.	As Mr Al Assadi’s evidence is unreliable we accept that he suffered an injury to his left knee but we are not persuaded that his condition should be attributed any points under the relevant table.
53.	In respect of his depression or PTSD condition it arose at the time he was claiming a DSP. The symptoms are self-reported. We are not persuaded that his complaints of symptoms have ever been genuine, however, accepting that he has the condition we are not persuaded that the symptoms are such as to warrant the allocation of points under the table. We consider that he is able to undertake full time work or retraining.