Dennis and Secretary, Department of Social Services (Social services second review)

[2016] AATA 296

Dennis and Secretary, Department of Social Services (Social services second review) [2016] AATA 296 (9 May 2016)

Division	GENERAL DIVISION
File Number	2015/4973
Re	Carol Dennis
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Miss E A Shanahan, Member
Date	9 May 2016
Place	Melbourne

The Tribunal affirms the decision under review.

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

Miss E A Shanahan, Member

SOCIAL SECURITY – pensions, benefits, allowances – application for disability support pension – nominated conditions of back, neck, knee pain and depression – lack of objective evidence – all conditions are not fully diagnosed, treated and stabilised – no impairment rating attracted – decision affirmed

Legislation

Social Security Act 1991
Social Security (Tables for the Assessment of Work Related Impairment for Disability Support Pension) Determination 2011

Cases

Re Bobera and Secretary Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

REASONS FOR DECISION

Miss E A Shanahan, Member

9 May 2016

1. Ms Dennis lodged a claim for disability support pension (DSP) on 20 January 2015, describing her disability as discs in back gone, arthritis/depression, knee replacement.  Ms Dennis has not worked since she suffered a back injury 25 years ago.  Before her injury, she had worked as a kitchen-hand in an aged care facility and also in a nursery.  The details of her work related injury have not been provided.  Ms Dennis’ claim was supported by a treating doctor’s report from her general practitioner, Dr Shazia Shoaib.

2. Between 24 August 2010 and 9 February 2015, Ms Dennis had undergone four job capacity assessments (JCA), all of which found her conditions to be not fully diagnosed, treated and stabilised.  On 11 February 2015, a Centrelink representative determined that Ms Dennis did not qualify for the DSP, following which a review by an authorised review officer (ARO) was requested. On 1 June 2015, the ARO affirmed the decision. 

3. Ms Dennis applied for a further review by the then Social Security Appeals Tribunal (SSAT). This was heard on 14 August 2015 by the Social Services and Child Support Division (SSCSD) of the now amalgamated Administrative Appeals Tribunal (AAT).  At the First Review, the SSCSD affirmed the decision.

4. Ms Dennis lodged an application for a Second Tier Review by the AAT on 22 September 2015.  The hearing was conducted by telephone. Ms Dennis was self-represented, but was assisted by her 85 year old mother.  Mr Joshua Lessing, a solicitor with Sparke Helmore Lawyers, appeared for the Secretary, Department of Social Services (the Secretary). The Tribunal had before it the section 37 documents provided by the Secretary (T-documents) and further supporting letters from Dr Shoaib received in late 2015.

BACKGROUND TO THE APPLICATION

1. Ms Dennis states that she has suffered from lower back pain since 1990, when she fell at work.  At that time her general practitioner was a Dr N King in Strathdale. He is said to have told her she would ultimately need an operation on her spine, but that she should put it off for as long as possible.  Ms Dennis states she suffers almost continuous chronic back pain which interferes with all of her activities and that she has pain in both knees, the right more so than the left. She said that she has developed depression as a result of her chronic symptoms, plus the recent loss of her father who died some eight months ago. She said she is receiving treatment for depression from Dr Shoaib. The depression has been aggravated by on-going demands for divorce and restitution of their house by her husband. Ms Dennis has the care of her three school-age sons.

2. Ms Dennis could not understand why her self-reported symptomatology had not been accepted as qualifying her for the DSP.  She states she is unable to obtain her previous general practitioner’s records which cover a period of 30 years and only has access to more recent investigations.  She has had investigations in the form of an MRI and a CT scan of her lumbar spine, and ultrasounds of her knees. She said she has had several masses removed from her neck recently.  At the request of the Tribunal, Ms Dennis was able to find and read out the pathology reports relating to the latter.  Ms Dennis said Dr Shoaib had told her these conditions were pre-malignant.  According to the reports Ms Dennis read to the Tribunal, the lesions were dermatofibromata which, translated from the Latin derivation, means scarring in the skin or abnormal collections of fibrous tissue.  According to all pathology textbooks, this is a benign condition not a pre-malignant condition.  They are extremely common lesions throughout the population. 

3. Ms Dennis has undergone investigations, predominately in the form of radiological imaging. The MRI (magnetic resonance imaging) of her lumbar spine on 30 December 2013 showed minor changes in the form of mild loss of disc hydration and height and what is described as subtle to mild posterior disc bulges, most prominent at L5/S1 and without any evidence of foraminal stenosis, nerve root compression or canal stenosis.  Mild degenerative joint changes were noted at L4/5.

4. A subsequent lumbar CT scan on 27 February 2014 showed mild degenerative changes and mild narrowing of the intervertebral foramina at L5/S1.  X-rays of Ms Dennis’ right knee performed on 4 August 2014 showed minor changes, suggestive of early osteoarthritis and some early patellofemoral degenerative change.  A chest x-ray performed on 28 January 2015, when Ms Dennis was said to have a chest infection, revealed only minor right basal atelectasis and no evidence of pneumonia. 

5. Ms Dennis’ diagnosis of depression was made by Dr Shoaib, who prescribed a small dose of Zoloft.  Ms Dennis saw Dr Telslin Mathew, a psychiatrist, on 15 March 2015, this being within the 13 week review period. Dr Mathew determined that Ms Dennis was suffering from an adjustment disorder related to grieving for her recently deceased father and loss issues in general. The dose of Zoloft was increased from 50 mgs daily to 100 mgs and Seroquel and Valium were added to her medication. Dr Mathew also recommended referral to a psychologist.  

6. Ms Dennis’ marriage had broken up in either late 2013 according to Dr Shoaib, or early in 2014 according to other reporting medical practitioners. She has responsibility for her three sons aged 12, 16 and 20 and has continuing acrimonious contact with her ex-husband, who was seeking a divorce and her eviction from the marital home.  It would appear that Ms Dennis receives family tax benefit payments, but there is no information as to whether her husband provides child support payments.

   DOCUMENTARY EVIDENCE

7. Dr Shazia Shoaib, Ms Dennis’ general practitioner, has completed one Treating Doctor DSP form which is undated but said to have accompanied Ms Dennis’ application of 18 January 2015.  Dr Shoaib has also provided letters dated 16 February 2015, 27 October 2015 and 30 November 2015, all of which describe Ms Dennis’ symptoms but do not provide any findings based on clinical examination.  These symptoms have been attributed to osteoarthritis of the lumbar spine, knees and cervical spine and possibly to fibromyalgia. 

8. Ms Dennis is said to have depression and anxiety, the anxiety having been treated intermittently since 2006 and the depression being of more recent onset although Dr Shoaib dates these conditions from 1995. Dr Shoaib states that Ms Dennis is unable to sit and stand longer. According to Dr Shaoib, arrangements were being made for Ms Dennis to see a psychiatrist and physiotherapy had been commenced. 

9. Mr Alex Gallea, a physiotherapist, provided a report dated 18 February 2015 and this is the only document which provides some evidence of a physical examination.  Mr Gallea found mildly reduced lumbar, thoracic and cervical spine ranges of movement, near normal bilateral shoulder range of movement and moderate lumbar and cervical muscle tightness.  Mr Gallea considered Ms Dennis was suffering from many family issues causing her stress, tension and anxiety.  He advised self-management strategies to reduce the stress levels, and was to arrange hydrotherapy classes. 

10. Ms Dennis was seen by Dr Matthew on 15 March 2015 and a report dated 22 March 2015 was provided to Dr Shaoib.  According to Dr Mathew, Ms Dennis had lived in a verbally and physically abusive marriage for some 17 years and this relationship had ended in February 2014.  Separation had led to increased anxiety and distress and this had been escalated by her father’s death.  Dr Mathew was of the understanding that as well as looking after her three of four sons who are still at home, Ms Dennis was also caring for 85 year old mother.  Dr Mathew made a diagnosis of an adjustment disorder with depressed mood in the background of anxious dependent personality traits which were complicated by grief and loss issues.

11. Ms Dennis has undergone four JCAs between 24 August 2010 and 9 February 2015.  The first of these related to her qualifications for newstart allowance.  In the assessment of 9 February 2015, it was accepted that Ms Dennis’ osteoarthritis affecting her back and knees was fully diagnosed. The assessment did not accept that her depression was fully diagnosed, and did not accept that either condition was fully, treated or stabilised.   Ms Dennis’ capacity for work within two years was estimated to be 15 to 22 hours with intervention, and her baseline work capacity was 8 to 14 hours.  The interventions recommended were psychiatric services, counselling and further diagnostic investigations.  No impairment rating points were calculated given the conditions were not fully treated and stabilised. 

12. The Health Professional Advisory Unit (HPAU) was consulted and Ms Dennis was assessed by a registered nurse, who provided a report on 27 May 2015.  It was said that Ms Dennis was awaiting an appointment to see a pain specialist at Bendigo Hospital in relation to her back and neck symptoms. 

13. The HPAU report noted that Ms Dennis had recently been overseas. She had travelled by aeroplane and coped with being seated for several hours.  Ms Dennis was able to perform all activities of daily living and could walk up and down stairs unassisted. The assessor attributed many of Ms Dennis’ symptoms to her loneliness and isolation following the breakdown of her marriage and the death of her father.  According to the registered nurse, Ms Dennis cared for her elderly mother who lived next door to her.  A temporary exemption for six to nine months from the requirements for work was considered appropriate and would allow psychological intervention following which a future work capacity of 15 to 22 hours would be the appropriate expectation.

14. Ms Dennis’ mother, Mrs Jones provided support for her daughter during the telephone hearing and had also provided a note, which has been appended to the AAT Social Services Division First Review report.  Mrs Jones made some criticisms of the conduct of this hearing by telephone.  Mrs Jones stated she was 86 and endeavoured to do all she could to remain independent and not add further strain to her daughter’s current problems. She believed she could remain fully independent with her daughter’s help and appeared to understand this Tribunal’s comments regarding the level of Ms Dennis’ investigations and the results of those performed to date which did not correspond with the level of her symptoms.

    RELEVANT LEGISLATION

15. Section 94(1) of the Social Security Act 1991 (SRC Act) is as follows:

    94 Qualification for disability support pension

    (1)A person is qualified for disability support pension if:

    (a)the person has a physical, intellectual or psychiatric impairment; and

    (b)the person’s impairment is of 20 points or more under the Impairment Tables; and

    (c)one of the following applies:

    (i)     the person has a continuing inability to work;

    (ii)     the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and ...

16. The Social Security (Tables For The Assessment of Work Related Assessment of Work-related Impairment For Disability Support Pension) Determination 2011 (the Impairment Tables) provides instructions in regard to the application to the tables stating in Clause 6, Applying the Tables:

    Impairment ratings

    (3)       An impairment rating can only be assigned to an impairment if:

    (a)the person’s condition causing that impairment is permanent; and

    Note:For permanent see subsection 6(4).

    (b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.

    Example: A condition may last for more than 2 years, but the impairment resulting from that condition may be assessed as likely to improve or cease within 2 years – if this is the case, an impairment rating under the Tables cannot be assigned to the impairment.

    Permanency of conditions

    (4)       For the purposes of paragraph 6(3)(a) a condition is permanent if:

    (a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and

    (b)the condition has been fully treated; and

    Note:For fully diagnosed and fully treated see subsection 6(5).

    (c)the condition has been fully stabilised; and

    Note:For fully stabilised see subsection 6(6).

    (d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.

    Fully diagnosed and fully treated

    (5)In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:

    (a)whether there is corroborating evidence of the condition; and

    (b)what treatment or rehabilitation has occurred in relation to the condition; and

    (c)whether treatment is continuing or is planned in the next 2 years.

    Fully stabilised

    (6)For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:

    (a)either 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

    (b)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.

    Note:For reasonable treatment see subsection 6(7).

    SUBMISSIONS

17. The Secretary provided a Statement of Issues, Facts and Contentions. The issues identified are:

    ·Whether Ms Dennis had any physical, intellectual or psychiatric impairments at the time of lodgement of her claim for DSP or within 13 weeks of  that date (Re Bobera and Secretary Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922);

    ·If so, whether her impairments attracted an impairment rating of at least 20 points under the Impairment Tables; and

    ·If so, whether Ms Dennis had a continuing inability to work. 

    The Secretary concluded that Ms Dennis did not satisfy s 94(2)(a) or (b), and that there was therefore no need to consider s 94(1)(c).

18. The AAT Social Security Division First Review determined that Ms Dennis did not satisfy s 94(1)(b) of the Act, as she did not attract any impairment rating at all because her medical conditions were not fully diagnosed, treated and stabilised.

    TRIBUNAL’S DELIBERATIONS

19. The Tribunal is satisfied that Ms Dennis satisfies s 94(1)(a) of the Act, in that she has:

    ·Chronic lumbar back pain said to be secondary to a work related injury in 1990;

    ·Neck pain and knee pain which have been attributed to osteoarthritis, being a degenerative condition associated with the aging process; and

    ·An adjustment disorder secondary to predominately personal stressful phenomena but also imposed on a long standing history of anxiety requiring treatment intermittently. 

20. There is, overall, a paucity of investigations. Those undertaken in 2014 and early 2015 have not revealed pathological changes commensurate with Ms Dennis’ symptoms.  She has said that she has multiple discs out in her lower back, that she saw a specialist 25 years ago and that her former general practitioner, Dr King, would have all the details relating to this injury.  Ms Dennis has not provided any of the data and it is not clear if she has endeavoured to get this from Dr King.  There is no evidence currently of any disc protrusion or extrusion, with only minor bulges at the lower lumbar levels which one would expect in a person aged 52.  The treatment of her back pain, including the cervical pain and her knee condition, has been with analgesics (Targin), a non-steroidal anti-inflammatory drug (Celebrex), Panadol and Valium as a muscle relaxant.

21. While her general practitioner had commenced Ms Dennis on the anti-depressant Zoloft, this was at a low dose. It is only since she has been seen by a psychiatrist in March 2015 that her dose of Zoloft has been increased to therapeutic levels and Seroquel has been added. 

22. In relation to her knees, it would appear that Ms Dennis is still waiting for an appointment to an Outpatient Clinic at Bendigo Hospital where she has been told there might be an eighteen month delay.  Arrangements are said to have been made for her to see a psychologist for counselling. This has not yet occurred and it would appear that she has only seen the psychiatrist on one occasion.  While physiotherapy was recommended for her lumbar spinal pain, she has not found this beneficial in the past and the prescribed hydrotherapy has not been undertaken. 

23. Given the doubt as to a definitive diagnosis, the possibility of fibromyalgia has been raised by Dr Shoaib to account for Ms Dennis’ symptoms of pain in the neck, spine and knees. The lack of any significant response to treatment to date renders these conditions not fully diagnosed, treated and stabilised. 

24. In relation to Ms Dennis’ diagnosed adjustment disorder, appropriate medication was only commenced in March 2015 and the counselling she was to undertake appears not to have commenced at all.  Despite remaining symptomatic, her psychiatric condition has been considered to be amenable to adjustment of her medication and further treatment in the form of counselling. 

25. The Tribunal is satisfied that none of the conditions are fully diagnosed, treated and stabilised and therefore do not attract an impairment rating. Section 94(1)(b) of the Act is not satisfied. Given the above finding it is not necessary to address Ms Dennis’ ongoing incapacity for work. As Ms Dennis has not satisfied s 94(1)(b) of the Act, she cannot satisfy the requirements for the provision of DSP pursuant to s 94(1) of the Act. The decision under review is, therefore, affirmed.

30.     I certify that the preceding 29 (twenty nine) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member

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Associate

Dated   9 May 2016

31.     Date of hearing	7 April 2016
Applicant	By Telephone
Advocate for the Respondent	Mr Joshua Lessing
Solicitors for the Respondent	Sparke Helmore Lawyers