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

[2022] AATA 676

Doncevksi and Secretary, Department of Social Services (Social services second review) [2022] AATA 676 (7 April 2022)

Division:GENERAL DIVISION

File Number:          2021/2623

Re:Juliana Doncevksi

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:R Cameron, Senior Member

Date:7 April 2022

Place:Melbourne

The Tribunal affirms the decision under review.

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

R Cameron, Senior Member

Catchwords

DISABILITY SUPPORT PENSION – qualification period – physical, intellectual or psychiatric condition – fully diagnosed, treated and stabilised – persisting for more than two years – impairment rating of at least 20 points under the Social Security Tables – continuing inability to work – lower back condition not fully treated and stabilised – spinal condition cannot attract 20 impairment points - psychiatric condition not reasonably treated and therefore no impairment rating – reviewable decision affirmed

Legislation

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

Cases

Lucas and Secretary, Department of Social Services [2018] AATA 2563

Smalldon and Secretary, Department of Social Services [2015] AATA 2

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

Secondary Materials

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

REASONS FOR DECISION

R Cameron, Senior Member

7 April 2022

INTRODUCTION

1. The applicant seeks a review of a decision of the Social Services & Child Support Division of this Tribunal made on 23 March 2021 (“the reviewable decision”), affirming a previous decision made by the respondent rejecting her application for a Disability Support Pension (“DSP”).

   ISSUES FOR DETERMINATION BY THE TRIBUNAL

2. The Tribunal is required to determine whether the applicant qualified for the DSP as at 3 October 2019, the date on which the claim was lodged with the respondent, or within the 13 weeks thereafter to 2 January 2020 (“the qualification period”).[1]

   [1] See Schedule 2, Part 2, Clause 4 of the Social Security (Administration) Act 1999.

3. In determining whether the applicant qualified for the DSP during the qualification period, the Tribunal must undertake certain enquiries. They are as follows:

   (a)does the applicant have a physical, intellectual or psychiatric impairment for the purposes of section 94(1)(a) of the Social Security Act 1991 (“the Act”);

   (b)are those conditions fully diagnosed, treated and stabilised and attract an impairment rating of at least 20 points under the Social Security Tables (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (“the Tables”);[2] and

   (c)does the applicant have a continuing inability to work within the meaning of section 94(1)(c) of the Act?

   [2] Section 94(1)(b) of the Act.

4. Under paragraphs 6(3)-6(7) of the Tables an impairment rating can only be assigned if such impairment is permanent. That is, it is fully diagnosed, treated and stabilised and likely to persist for more than two years.

5. The respondent accepts that the applicant suffers from osteoarthritis, lower back pain[3] and mental health conditions; and that such impairments satisfy section 94(1)(a) of the Act during the qualification period.

   [3] This is indeed evident from the results of the CT scan and report from radiologist Dr Siwach, which was in evidence in document T4 of the T documents. It is also evident from the results of an MRI of the applicant's lumbar spine, contained in a report dated 13 October 2012 from Dr O'Sullivan. It is document T6 of the T documents. Dr Siwach also conducted a further CT scan of the applicant's lumbosacral spine in August 2015 which results were also before the Tribunal of document T9.

6. The remaining question is whether such impairments were fully treated and stabilised. With respect to whether such impairments are fully treated and stabilised the Tables provide the following guidance:

   Fully diagnosed and fully treated

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

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

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

   (c) whether/her 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) Whether 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.

7. In undertaking the task cast upon it, it is useful to consider what was stated by the Tribunal in Swanson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs:[4]

   “In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for the DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal 12 or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries is and become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the Applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.”

   CONSIDERATION

   [4] [2012] AATA 922 at [34].

   Back Condition

8. There is expert evidence concerning the applicant’s back condition both before and after the qualification period. There is limited material concerning the qualification period. There is a report from Dr Thomas, dated 23 February 2022, which purports to express an opinion as to whether the applicant had work capacity in 2019. More will be said about that report later in these reasons.

9. That material will now be considered.

10. Mr Lo, a Neurosurgeon, prepared a report of 23 September 2013.[5] It should be observed that the report was prepared for the applicant’s lawyers for the purposes of a personal injury or workers’ compensation claim. However, Mr Lo observed that the applicant had been referred to him by her general practitioner in Sunshine on 12 October 2012. He recorded that the applicant suffers from scoliosis of the lumbar spine and a degenerative lumbar spinal condition. As a result of work activities, there was an aggravation or exacerbation of an underlying degenerative lumbar spine disease.

    [5] Document T8 of the T documents.

11. Mr Lo prescribed treatment of physical and medical therapy, including but not limited to physical therapy, hydrotherapy, swimming pool exercises and weight loss. His prognosis was guarded.

12. As for the likelihood of future surgery or other medical treatment, Mr Lo did express an opinion. He stated that surgical intervention, including lap band surgery or similar weight loss procedures, may be necessary in order to reduce the applicant’s weight; and thereby slow down her degenerative lumbar condition by secondary means. He also suggested that she may require other medical therapies including physical therapy and a rheumatology/pain management review.

13. Mr Lo also stated there was an inherent long-term deterioration of her spinal condition likely to occur.

14. In his clinical opinion he expressed the view that the applicant would require assessment by a rheumatologist or pain management specialist.

15. A report was in evidence from Mr Vellore, a Neurosurgeon and spine surgeon, dated 16 December 2015.[6] He observed that the applicant’s main problem is focal, chronic low back pain. Additionally, he also observed that between the medical images that had been undertaken in 2012 and 2015 there had not been a great deal of change. He considered there was no surgical option for her multilevel disc protrusions and her low back pain. He recommended seeing a pain physician. The opinion was also expressed that she would benefit from a course of pain management. It was recorded that the applicant did not want to see a pain management physician at that stage. However, she would consider it in the future. Consistent with this position, there was a referral and evidence before the Tribunal from her treating general practitioner, Dr Navani, to the Pain Clinic at the Sunshine Hospital on 26 February 2016. It appears that the applicant did not act on the referral and seek treatment from the Pain Clinic in accordance with such referral. However, it should be noted that the general practitioner, who had been treating her, under the heading “Presenting Problem” suggested there was a need for pain management treatment.

    [6] Document T10 of the T Documents.

16. Dr Slesenger, an Occupational Physician, prepared a report for the applicant’s lawyers dated 9 May 2017. Prior to preparing his report, he was furnished with an array of documentation including the report from Mr Lo of 23 September 2013, and two reports of Dr Thomas dated 20 March and 17 April 2017. Dr Slesenger noted that Dr Thomas’s report of 20 March 2017 advised that a pain management rehabilitation program was unlikely to assist the applicant. However, in that report Dr Thomas also recommended weight loss, core stability and aerobics fitness. Dr Slesenger was also provided with a report from Dr Khan[7]  dated 3 March 2015 and Dr Sutcliffe[8]  dated 22 May 2015. He observes that Dr Khan recommended a multidisciplinary approach to the applicant’s pain management. It is also recorded that Dr Sutcliffe recommended a pain management program. Dr Slesenger concluded his report by expressing the opinion that there were opportunities for further treatment and recommended that the applicant be referred to see a dietician and to undertake an exercise plan.

    [7] Apparently, Dr Khan is an Orthopaedic Surgeon who assessed the applicant on 3 February 2015 prior to preparing his report.

    [8] Dr Sutcliffe is also apparently an Occupational Physician.

17. Dr Blombery, a Consultant Physician, prepared a report for the applicant’s lawyers dated 12 May 2017, which was also in evidence before the Tribunal. Dr Blombery expressed the opinion that it would be worthwhile for the applicant to undertake a trial of pain management, as this may at least help her to deal with her pain. He also recorded that Dr Thomas did not feel that formal pain management had very much to offer her, and that he also encouraged her to lose some weight and improve her fitness.

18. Dr Bloom, also an Occupational Physician, prepared a report for the applicant’s lawyers on 15 May 2017. Reference is made in that report to the applicant seeing Mr Lo and Dr Vellore, and to the recommendation of weight loss and continuing with conservative treatment. Note was also made to Dr Thomas and his conclusion that the applicant would not benefit from commencing a pain management program. He recommended that her future treatment should focus on function, with encouragement of mobilising and strengthening exercise, together with the ongoing use of anti-inflammatory medications on an as-needed basis, coupled with simple analgesia, also on an as-needed basis.

19. Dr Epstein, a Consulting Psychiatrist, in his report of 17 May 2017 also produced for the applicant’s lawyers, had been furnished with a report of Mr Pai, an Orthopaedic Surgeon, dated 16 August 2016.  Mr Pai’s report was not in evidence before the Tribunal. However, Dr Epstein recorded that Mr Pai thought it unfortunate that the applicant’s pain had not been well managed in the beginning with a pain team. He felt that she required pain management.

20. The applicant’s treating general practitioner referred the applicant in August 2020 to a Consultant Physician and Rheumatologist, Dr Bhattacharjee. In his report of 11 August 2020, he did express the opinion that the applicant may benefit from a referral to a pain physician. This view was reiterated in a subsequent report, of 17 February 2021, in which he expressed the opinion that his hope was that with appropriate pain management the applicant could gain improvement in her quality of life. He also strongly recommended referral to a pain management specialist.

21. Two reports were in evidence from Dr Thomas, as noted earlier. The first report was dated 13 August 2021. In that report, amongst other things, he expressed the opinion that there were no other medical treatments available to assist the applicant. He considered her condition could be described as having been fully treated and stabilised, with no prospect for any improvement. It should be noted that he did not express an opinion as to what the position was with respect to the applicant’s conditions during the qualification period.

22. The second report of Dr Thomas was dated 23 February 2022. That report was expressed to be in response to an opinion as to whether the applicant would have had work capacity in 2019. Dr Thomas stated that the applicant had seen him with respect to the notion of a formal pain management rehabilitation program. He stated he was not convinced that this was likely to improve her situation to any extent. He further stated that he was not convinced that interventional pain management treatments blocks and the like had anything to offer the applicant. He stated that it is probable that she had no work capacity and that she probably would have been eligible for the DSP “at that stage”. He did, in fairness to him, state that he did not see the applicant in 2019, but that it is more likely than not for that to have been the case.

23. The Tribunal is confronted with several medical specialists who have recommended that the applicant undergo pain management treatment, as opposed to Dr Thomas, a consultant in rehabilitation and pain medicine, who expresses the opinion that during the qualification period such treatment had nothing to offer her.

24. The Tribunal is persuaded that undergoing a pain management treatment regime during the qualification period was reasonable treatment for the condition from which the applicant has suffered with respect to her lower back. It is particularly persuaded to reach this conclusion based upon the fact that the opinion in favour of pain management treatment was expressed by two eminently qualified neurosurgeons, an orthopaedic surgeon, and a specialist rheumatologist, in addition to other medical practitioners who examined the applicant. It is not only the preponderance of expert medical opinions that the Tribunal finds persuasive, but the specialties of those concerned expressing such opinions.

25. The Tribunal acknowledges Dr Thomas’s opinion. However, his was the only opinion to the effect that pain management treatment had nothing to offer the applicant. Ultimately, it seems to the Tribunal that such treatment on the preponderance of the evidence was well worth undertaking to determine one way or another whether it would offer the applicant some relief from the conditions from which she was suffering. To do so was, in the view of the Tribunal, reasonable treatment for such condition. It does seem surprising, in the face of the advice, that the applicant had not undertaken such treatment during the qualification period.

26. On the question of pain management, the Tribunal was referred to the case of Lucas and Secretary, Department of Social Services[9] in which the Tribunal as then constituted observed:

    “[51] It would be inappropriate for the Tribunal to consider this condition to be permanent and/or fully diagnosed and stabilised until the Applicant has completed a course of pain management at a recognised pain clinic. As noted by the Tribunal in Smalldon and Secretary, Department of Social Services:[10]

    It is not unusual for persons who have applied for DSP to be referred to pain clinics, and as a rule, it is unusual for a finding that the conditions associated with that pain are not fully treated until after the pain management options have been fully explored.

    Until Mrs Smalldon has completed a pain management course, and a specialist for pain management verifies that her treatment has been optimised, the conditions causing her impairment cannot be said to be fully treated.

    [52] The Applicant’s failure to undertake and complete a recommended course of pain management leads to the inevitable and unarguable conclusion that this condition was not fully treated or stabilised at the relevant period. Accordingly, no impairment points can be allocated to it.”

    [9] [2018] AATA 2563.

    [10] [2015] AATA 2 at [16].

27. For this reason, the Tribunal concludes that the applicant’s lower back condition has not been fully treated and stabilised; and therefore, no impairment rating can be assigned to this condition.

28. If the conclusion that the applicant’s lower back condition has not been fully treated and stabilised is incorrect, the question then becomes what impairment rating can be assigned to the condition.

    Spinal Condition

29. It should be noted that to obtain a 20-point rating, Table 4 “Spinal Function” requires as follows:

    “There is a severe functional impact on activities involving spinal function.

    (1) The person is unable to:

    (a) perform any overhead activities; or

    (b) turn their head, or bend their neck, without moving their trunk; or

    (c) bend forward to pick up a light object from a desk or table; or

    (d) remain seated for at least 10 minutes.”

30. Dr Thomas, in his most recent report of 23 February 2022, does not address the functions identified in Table 4 and simply reaches a conclusion that the applicant would have been eligible for the DSP.

31. The respondent took the Tribunal to the report of Dr Bloom, dated 15 May 2017, referred to earlier.[11]  The Tribunal acknowledges that this report came into existence sometime prior to the qualification period. There is no evidence before the Tribunal that the applicant’s condition deteriorated from the time of Dr Bloom’s report to the level of severe functional impact, so as to attract a 20-point impairment rating under Table 4 during the qualification period.

    [11] Dr Bloom's report is document T15 in the T documents.

32. Dr Bloom’s report touches on several of the matters needed to attract a 20-point rating under Table 4. In that report, under the heading “Functional Capacity”, it records that the applicant has a sitting tolerance of about 20 minutes, standing tolerance of about 5 minutes and a walking tolerance of between 5 and 10 minutes. She estimated a lifting and carrying capacity of between 2 kilograms and 3 kilograms.

33. In the report of Dr Bloom, under the heading “Clinical Examination”, it noted that the applicant rotated fully to her right whilst in the seated position and also reached above her head without any overt signs of distress.

1. Although prior to the qualification period, the Tribunal prefers the observations made by Dr Bloom in his report, and by reason of his findings cannot assign a 20-point impairment rating to the applicant’s spinal condition.

   Psychiatric Condition

2. The respondent contends that at the time of her application for the DSP the applicant made no claim to any mental health condition.[12] Therefore, it contends the Tribunal does not have jurisdiction to consider such condition and any previous review concerning such condition was done in error. The Tribunal accepts this contention. However, if it is wrong in reaching this conclusion, it will review the material before it.

   [12] Reference is made to the claim for the DSP document T 21 and the T documents.

3. There are no expert reports before the Tribunal concerning any psychiatric condition suffered by the applicant during the qualification period.

4. The applicant has produced several reports.

5. Ms Costa, a Clinical Psychologist, prepared a report dated 3 May 2017. She expressed the opinion that the applicant suffered from Severe Major Depressive Disorder recurrent with anxious distress. She stated the treatment for the applicant would include but not be limited to cognitive behavioural therapy (“CBT”). She stated that ongoing sessions, on a monthly basis, had been conducted for some time. The sessions included, in addition to CBT, talk therapy, mindfulness therapy and relaxation therapy. She did not express an opinion on whether psychiatric treatment was appropriate. No opinion was expressed as to whether antidepressants should be prescribed for her.

6. The applicant gave evidence that she sees Ms Costa for five sessions a year under a mental health plan that is paid for by Medicare.

7. In Dr Epstein’s report dated 17 May 2017, he diagnosed the applicant as suffering from a Major Depressive Disorder of moderate severity. He recommended the applicant undertake psychiatric or psychological treatment. She has not undertaken any psychiatric treatment since; and is apparently not taking any medication for her psychiatric condition.

8. Ms Costa prepared a further report dated 25 February 2022. In that report she diagnosed the applicant as suffering from Severe Major Depressive Disorder with anxious distress. With respect to treatment, she included CBT, applied relaxation, self-efficacy and self-management.

9. The most recent report of Ms Costa did not express an opinion as to the condition suffered by the applicant during the qualification period. It did not recommend or express any opinion about whether psychiatric intervention was warranted during the qualification period. It did not express any opinion or recommendation as to whether such psychiatric treatment may include prescription of antidepressant medication.

10. The Tribunal considers that reasonable treatment for the applicant’s psychiatric condition would include consulting a psychiatrist (as recommended by Dr Epstein),and trialling appropriate antidepressant medication so prescribed by such treating psychiatrist. Unfortunately, this treatment option has not been undertaken by the applicant. It was an option that was open to her during the qualification period. In fairness to the applicant, she did say that one of the reasons she has not been able to see a psychiatrist is that she is simply unable to afford the cost. The Tribunal acknowledges this fact.

11. By reason of the foregoing matters no impairment rating can be assigned to this condition.

    Continuing Inability to Work Pursuant to Section 94(1)(c) of the Act

12. Having found that the applicant did not have an impairment rating of 20 points, it is unnecessary for the Tribunal to consider whether the applicant has a continuing inability to work under section 94(1)(c) of the Act.

    DECISION

13. By reason of the foregoing matters, the Tribunal affirms the reviewable decision.

1.        

2.       I certify that the preceding 46 (forty-six) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member

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

Associate

Dated: 7 April 2022

Date of hearing:

11 March 2022

Applicant:

Advocate for the Respondent:

Self-represented

A Simpson

Solicitor for the Respondent:

Services Australia