Antrassian and Secretary, Department of Social Services (Social services second review)
[2015] AATA 818
•23 October 2015
Antrassian and Secretary, Department of Social Services (Social services second review) [2015] AATA 818 (23 October 2015)
Division
General Division
File Number
2015/0058
Re
Sylvia ANTRASSIAN
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Dr Ion Alexander, Member
Date 23 October 2015 Place Sydney The decision under review is affirmed.
........................[SGD]................................................
Dr Ion Alexander, Member
CATCHWORDS
SOCIAL SECURITY – pensions – disability support pension – whether applicant’s conditions were fully diagnosed, treated and stabilised – whether applicant’s impairment is rated 20 points or more under the Impairment Tables – decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth)
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Dr Ion Alexander, Member
23 October 2015
BACKGROUND
On 20 February 2014 Ms Antrassian lodged a claim for Disability Support Pension (“DSP”) on the basis that she suffered medical conditions which were having an impact on her ability to function.
Ms Antrassian’s claim was rejected by Centrelink, both initially and on internal review, and subsequently by the Social Security Appeals Tribunal (“SSAT”) on the basis that she did not satisfy the requirements of s 94 of the Social Security Act 1991 (Cth) (“the Act”). In particular she did not satisfy s 94(1)(b) of the Act, in that her impairment rating was not 20 points or more under the Impairment Tables.
In these proceedings Ms Antrassian seeks review of the decision of the SSAT dated 12 December 2014 which found that she had a total impairment rating of 15 points under Impairment Tables 3, 4 and 5.
At the hearing Ms Antrassian was self-represented and able to give oral evidence.
ISSUES
In order to qualify for DSP, Ms Antrassian must have satisfied the requirements of s 94 of the Act as at the date of the claim or within 13 weeks of lodging the claim, in accordance with the requirements of the Social Security (Administration) Act 1999, that is, between 20 February 2014 and 22 May 2014 (the claim period).
Section 94(1) of the Act provides that 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 Respondent concedes and the Tribunal accepts that Ms Antrassian suffers medical conditions that cause impairment and therefore satisfied s 94(1)(a) of the Act at the time of her claim for DSP.
The relevant conditions for consideration by the Tribunal include conditions involving spinal function (cervical and lumbosacral), mental health function (depression), upper limb function (left shoulder), lower limb function (knees, right hip), digestive function (hiatus hernia, reflux, gastritis, gastric ulcer), as well as diagnoses of multi-nodular goitre, obesity and fibromyalgia.
The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Impairment Determination”) requires that an impairment rating can only be assigned to an impairment if the condition causing that impairment is “permanent” (paragraph 6(3)(a)).
For the purposes of paragraph 6(3)(a) a condition is permanent if the condition is:
·fully diagnosed by an appropriately qualified medical practitioner (paragraph 6(4)(a)),
·fully treated (paragraph 6(4)(b)),
·fully stabilised (paragraph 6(4)(c)), and
·the condition is more likely than not to persist for more than two years (paragraph 6(4)(d)).
The Introduction to each relevant Table in the Determination requires that “self-report of symptoms alone is insufficient” and “there must be corroborating evidence of the person’s impairment”.
Also, the Introduction to Table 5 of the Determination, which is to be used where a “person has a permanent condition resulting in functional impairment due to a mental health condition”, states that 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 a psychiatrist)”.
The Respondent submits that during the claim period Ms Antrassian had a total impairment rating of 15 points under the Impairment Tables so that she did not satisfy section 94(1)(b) of the Act.
Therefore, the Tribunal must decide whether during the claim period Ms Antrassian had a rating of 20 points or more under the Impairment Tables and, if so, whether she had a continuing inability to work.
MS ANTRASSIAN’S EVIDENCE
At the hearing Ms Antrassian’s oral evidence was of a general nature and she was not able to provide the Tribunal with a clear account of the impairment she suffered during the claim period as a result of each of her claimed medical conditions.
Ms Antrassian described generalised pain and depression which began in 2010 following a motor vehicle accident (“MVA”). The accident did not cause significant physical injury but appears to have provoked generalised pain as well as mental health symptoms which required treatment by a psychiatrist.
Her symptoms settled over time but in April 2013, following an operation on her left knee, Ms Antrassian claims that she was bedridden and housebound for more than eight months. As a consequence of persistent pain and immobility her weight went from about 70kg to more than 100kg. She told the Tribunal that this increase in weight contributed to a further deterioration of her mental health, added to her burden of pain, particularly in her knees, and had a significant impact on her general capacity to function. She said that at the end of 2013 “she had lost it”.
In January 2015, Ms Antrassian, underwent a “Laparoscopic sleeve gastrectomy, hiatus hernia repair”. She told the Tribunal that since the operation she has lost more than 20 kg in weight, generally feels much better, has less pain in her knees and is more mobile but has recently suffered frequent unexplained vomiting and difficulties with balance.
Ms Antrassian told the Tribunal she has pain, reduced mobility and weakness in her left upper limb so that she often requires assistance with self-care activities. Also, she claimed a significantly reduced tolerance to sitting because of her lower back pain.
MEDICAL CONDITIONS
Mental health function
In a letter dated 11 September 2012 Dr Sharah, psychiatrist, notes that he has been seeing Ms Antrassian intermittently since 23 September 2011 due to MVAs in 2008 and 2010 and that she is “anxious and depressed and struggling to manage her two children and herself”. Dr Sharah provides no formal diagnosis, endorses treatment with Cipramil 20mg daily but provides no details in respect of functional impairment.
In two Centrelink Medical Reports dated 18 December 2013 and 3 July 2014 Dr Sanki, general surgeon, notes that Ms Antrassian has been his patient since May 1996 and lists respectively “anxiety and depression” and “depression” as conditions that have a significant impact on her ability to function but provides no other relevant details in respect of these conditions.
In a letter dated 31 January 2014 Mr Anthony, who signs himself as a “clinical psychologist”, notes that Ms Antrassian suffered injuries in MVAs in 2008 and 2010 and presents with “Adjustment Disorder with Mixed Anxiety and Depressive Mood due to persistent pain and physical restrictions from injuries in the reported motor vehicle accidents”. He does not provide an adequate assessment of functional impairment.
In a report prepared for the Motor Accident Authority dated 1 May 2013 Dr Baker, psychiatrist, provides a reasonably comprehensive assessment of Ms Antrassian’s functioning as at 9 April 2013. He accepts a psychiatric diagnosis of “Adjustment Disorder with Mixed Anxiety Depressed Mood” and provides an assessment of permanent impairment.
On consideration of the descriptors in Impairment Table 5 I am satisfied that Dr Baker’s assessment in April 2013 is consistent with a mild functional impact on activities involving mental health function and would have warranted an impairment rating of five points.
In an undated Centrelink Medical Report received by Centrelink on 20 February 2014 Dr Mehmet, GP, lists “depression/anxiety” as a medical condition that is generally well managed that causes minimal or limited impact and describes impact on ability to function as “reduced motivation, reduced activity”.
In an undated Centrelink Medical Report received by Centrelink on 10 April 2014 Dr Mehmet, lists “fibromyalgia/depression”, as a condition with most impact. He notes clinical features as neck, shoulder, back and knee pain and describes impact on ability to function as “chronic pain, reduced energy mobility, depressed mood lethargy, reduced endurance” but provides no other relevant information.
In a Centrelink Medical report dated 3 July 2014 Dr Sanki lists “depression” as a condition with significant impact on ability to function but provides no other relevant information.
In a letter dated 18 May 2015 Mr Anthony states that he first saw Ms Antrassian in March 2013 and provided six sessions of psychological treatment. He notes that she was reviewed on the 30 April 2015 but provides no relevant information in respect of her functional impairment during the claim period.
I note, that the Australian Health Practitioner Regulation Agency lists Mr Anthony as a registered psychologist with no endorsement as a clinical psychologist.
In a report dated 24 July 2015 Dr Sharah notes the he saw Ms Antrassian on 12 occasions between 23 September 2011 and 17 April 2013 but that she had not consulted him after he ceased practice in 2013.
Dr Sharah advocates strongly in support of Ms Antrassian’s application for DSP and provides a mental health assessment which suggests that Ms Antrassian suffers a moderate to severe impairment in respect of activities involving mental health function but provides no indication as to the time of his assessment of her impairment.
Consideration
I accept that in April 2013, prior to her left knee operation, Ms Antrassian suffered a mental health condition that had a mild functional impact on her activities involving mental health function as detailed by Dr Baker.
In her oral evidence Ms Antrassian said that following her knee operation her mental health significantly deteriorated so that her capacity to function was severely impaired.
Although I accept Ms Antrassian’s self-report of an increase in symptoms, the difficulty for present purposes is that there is no evidence of any psychological or psychiatric assessment or any change in treatment during that period. The contemporaneous documentary evidence provided by Dr Mehmet and Dr Sanki, which can best be described as incomplete, is of little assistance.
I have placed little weight on Dr Sharah’s report as he appears not to have seen Ms Antrassian for more than two years and doesn’t indicate how or when his assessment of her mental health function was done.
For reasons set out above, I am not persuaded that during the claim period her mental health condition was fully treated and fully stabilised, so that a rating under Impairment Table 5 cannot be applied.
Spinal function
In the two reports lodged by Dr Mehmet in 2014 there is no mention of a spine condition. He refers to neck and low back pain in the context of a diagnosis of fibromyalgia
In Dr Sanki’s reports of December 2013 and July 2014 he respectively lists “C2/4/5/6 radiculopathy lumbar radiculopathyL5” and “C5/6/7 radiculopathy“ as medical conditions causing significant impact on ability to function.
Dr Sanki points to no clinical or radiological evidence to support these diagnoses.
An MRI scan of the cervical and lumbar spine performed on 29 January 2011 is reported as showing:
·A mild disc bulge at C5/6 with no impingement on the exiting nerve roots
·No significant disc bulges at any other cervical spine level
·A very mild disc bulge at L4/5 causing no significant impingement on exiting nerve roots.
·No significant disc bulges at any other lumbar spine level
·No significant disc disease noted in the cervical or lumbar spine
An MRI scan of the cervical spine performed on the 28 July 2012 concludes as follows:
“No significant disc herniation in the cervical with no significant central canal nor formainal narrowing….. No significant interval change since 29/1/2011”.
In a letter dated 19 December 2012 Dr Tjeuw, rheumatologist, states that Ms Antrassian “describes widespread pain, particularly in the neck and back consistent with fibromyalgia” and on physical examination notes that “her spine was normal” and “her neurological exam was normal except for subjective left hip flexion weakness”.
In a report dated 17 October 2013 Dr Bodel, orthopaedic surgeon, notes there was “no clinical sign of radiculopathy in either arm”.
In my view, the MRI findings and the reports of Dr’s Tjeuw and Bodel do not support Dr Sanki’s diagnoses and accordingly the Tribunal cannot be satisfied that during the claim period Ms Antrassian suffered from cervical radiculopathy, so that a rating under Impairment Table 4 cannot be applied.
Upper limb function
In his letter of 19 December 2012 Dr Tjeuw notes that Ms Antrassian is being treated for left shoulder bursitis which has not responded to two steroid injections.
In a report dated 17 October 2013 Dr Bodel, orthopaedic surgeon, notes that an MRI scan of the left shoulder performed on 1 December 2012 showed evidence of “supraspinatus tendonitis and bursitis but no rotator cuff tear”.
The Respondent submits and the Tribunal accepts that during the claim period Ms Antrassian’s left shoulder condition was permanent for the purposes of the Impairment Determination, but that there was no functional impact on activities using hands or arms so that a rating of only zero points can be applied.
On examination Dr Bodel notes “restricted range of left shoulder movement” and “mild impingement in the region of the left shoulder but no instability”. He also notes that there was “no lack of elbow, wrist or hand movement and no clinical sign of radiculopathy in either arm”.
Dr Mehmet in his two reports, apart from mentioning “shoulder pain”, does not provide any assessment of upper limb function.
Dr Sanki in his report of 3 July 2014 notes “supraspinatus left shoulder” as a condition that causes significant impact on ability to function but attributes “pain in the left shoulder/neck weakness in the left upper limb” to cervical radiculopathy. He provides no other information in respect of upper limb function.
In an Activities of Daily Living and Home Assessment Report dated 25 November 2013 Ms Wang, occupational therapist, notes that Ms Antrassian can still manage fine finger manipulation.
Ms Antrassian told the SSAT that “she has no difficulties with fine motor areas, she can do up buttons and lift a 2L container of milk”.
On consideration of the descriptors in Impairment Table 2 and the somewhat limited corroborative evidence before the Tribunal I am satisfied that during the claim period there no functional impact on activities using hands and arms so that a rating of zero points should be applied.
Lower limb Function
The Respondent accepts and the Tribunal agrees that Ms Antrassian suffers several lower limb conditions affecting her right knee, left knee and left hip and that during the claim period these conditions were permanent for the purposes of the Impairment Determination.
The Respondent submits that these conditions had a mild functional impact on Ms Antrassian’s lower limb activities so that a rating of five points under Impairment Table 3 can be applied.
Dr Sanki in his report of 18 December 2013 notes current symptoms as “pain, difficulty walking” but provides no other details of impact on ability to function. In his report of 3 July 2014 he notes “Pain in left knee, some improvement immediately after arthroscopy, now pain has recurred…....illegible” but provides no other details.
Dr Mehmet in his two undated reports refers to knee pain but provides no details on impact on ability to function.
Ms Wang notes that Ms Antrassian’s maximum walking tolerance was 10-15 minutes and that she had previously used a walking sick but was embarrassed and threw it away so that she now walks with a limp, she can manage limited stairs slowly with handrail assistance and goes shopping occasionally when there are no heavy bags and there are places to rest.
At the hearing Ms Antrassian told the Tribunal that since her weight loss following the stomach operation she has become more mobile and her knee pain has decreased.
On consideration of the descriptors in Impairment Table 3 and the limited corroborative evidence before the Tribunal I am not persuaded that during the claim period the relevant descriptors for a moderate functional impact have been satisfied. In my view, the evidence tends to suggest that there was mild to moderate functional impact on activities requiring the use of lower limbs.
I note that subsection 11(1)(c) of the Impairment Determination stipulates that “if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned”. Accordingly I find that a rating of 5 points under Impairment Table 3 can be applied.
Fibromyalgia
Dr Tjeuw in his report 19 December 2012 notes that since the MVA in 2010 Ms Antrassian has had “widespread aches and pains with soft tissue tenderness” and that “her pains migrate and she had dealt poorly with the pain”. He notes that she is being treated for left shoulder bursitis, has left knee issues that will require arthroscopy and has a normal MRI scan of the cervical and lumbar spine without significant disc disease.
On examination he notes as follows:
“Sylvia has restricted left shoulder abduction. She has soft tissue tenderness in the arms, chest and back. Her spine was normal. Her MSK exam was normal. Her neurological examination was normal except for subjective left hip flexion weakness. Her heart lungs and belly were normal”.
Dr Tjeuw summarises as follows:
“Sylvia describes widespread pain, particularly in the neck and back consistent with fibromyalgia. This may have been triggered by her MVAs. She needs to move on. The mainstay of therapy is non-pharmacological”.
Dr Tjeuw recommends Ms Antrassian “continue complementary and alternative medicines in addition to weight loss and a healthy lifestyle”.
Dr Mehmet in his report lodged on 20 February 2014 lists “fybromyalgia” as the medical condition with the most functional impact and notes current symptoms as “neck pain, low back, L shoulder, knee pain bilateral”. He describes impact on ability to function as “reduced endurance, chronic pain, limited mobility, limited sitting standing 15 -30 minutes”.
In his report lodged on 10 April 2014 Dr Mehmet lists “fibromyalgia/depression” as the medical condition with most functional impact and notes current symptoms as “neck pain, shoulder pain, back pain knee pain”. He describes impact on ability to function as “chronic pain, reduced energy mobility, depressed mood lethargy – reduced endurance”.
Consideration
The evidence before the Tribunal suggests that the key element in the diagnosis of “fibromyalgia” is symptoms of “widespread pain” that cannot be directly attributed to a specific pathological process. This is likely to create significant difficulty with the assessment of other medical conditions where the principal symptom leading to impairment is also pain.
This difficulty is demonstrated in the reports of Dr Mehmet where apart from being somewhat incomplete there appears to be some confusion as to the cause of Ms Antrassian’s complaints of pain and ensuing functional impairment.
It is also demonstrated in reports of Dr Sanki where he attributes Ms Antrassian’s neck and back pain to “radiculopathy”, a diagnosis which is not supported by other medical evidence.
Furthermore subsection 6(9) of the Impairment Determination provides as follows:
(9) There is no Table dealing specifically with pain and when assessing pain the following must be considered:
(a) acute pain is a symptom which may result in short term loss of functional capacity in more than one area of the body; and
(b) chronic pain is a condition and , where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected; and
(c) whether the condition causing pain has been fully diagnosed, fully treated and fully stabilised for the purposes of subsections (6)(5) and (6).
Also subsection 10(3) of the Impairment Determination provides that “where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table”.
The question of the level of functional impact associated with Ms Antrassian’s claimed chronic neck and back pain is difficult as, in my view, it is not entirely clear which is the relevant Impairment Table to be used for the assessment.
Arguably her symptoms imply impact on spinal function so that Impairment Table 5 would be the relevant Table.
However, an additional difficulty is that, in my view, there is insufficient corroborative evidence to formulate a reasonable conclusion as to the functional impact of Ms Antrassian’s claimed neck and back pain during the claim period. The medical evidence suggests confusion about the diagnosis, the cause of her pain and does not provide any meaningful assessment of functional impact with reference to either the claim period or the Impairment Tables.
Accordingly, I am not persuaded that a rating under the Impairment Tables can be applied.
Other Conditions
It is accepted that during the claim period the conditions reflux, gastritis and gastric ulcer were permanent for the purposes of the Impairment Determination. However, there is no evidence before the Tribunal that during the claim period these conditions had any impact on Ms Antrassian’s ability to function so a rating of zero points under Table 10 should be applied.
The conditions of obesity and hiatus hernia were definitively treated by the operation performed on 25 January 2015 so that during the claim period they could not have been considered fully treated and fully stabilised. This means that a rating under the Impairment Tables cannot be applied.
In November 2012 an ultrasound examination confirmed that Ms Antrassian had a multinodular goitre and her thyroid function tests were found to be abnormal. She has been treated intermittently with medication and thyroidectomy and other treatments are still being considered. I am satisfied that during the claim period Ms Antrassian’s thyroid condition was not fully treated and stabilised so that a rating under the Impairment Tables cannot be applied.
DECISION
For reasons set out above the Tribunal is satisfied that during the claim period Ms Antrassian’s impairment was not 20 points or more so that she did not satisfy section 94(1)(b) of the Act and did not qualify for DSP.
The decision under review is affirmed.
I certify that the preceding 81 (eighty-one) paragraphs are a true copy of the reasons for the decision herein of Dr Ion Alexander, Member. ........................[sgd]................................................
Associate
Dated 23 October 2015
Date of hearing 15 September 2015 Applicant In person Solicitors for the Respondent Department of Human Services
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