Elizabeth Lopez and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2012] AATA 903

[2012] AATA 903

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2011/5249
Re	Elizabeth Lopez
APPLICANT
And	Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT

DECISION

Tribunal	Miss E A Shanahan, Member
Date	19 December 2012
Place	Melbourne

The Tribunal affirms the decision under review.

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

Miss E A Shanahan, Member

SOCIAL SECURITY – disability support pension application – conditions not fully diagnosed, treated or stabilised – decision affirmed.

Legislation

Social Security Act 1991 section 94(1) and (2), 95(5), Schedule 1B

REASONS FOR DECISION

Miss E A Shanahan, Member

19 December 2012

1. Ms Lopez lodged a claim for disability support pension (DSP) with Centrelink on 31 January 2011.  Centrelink is the service delivery agency for the Department of Families, Housing, Community Services and Indigenous Affairs.  Her DSP application was accompanied by a medical report completed by her general practitioner, Dr Eduardo Aranda.  The report listed the conditions having a significant impact on Ms Lopez’s ability to function as fibromyalgia syndrome and irritable bowel syndrome (IBS).  Other conditions having a minimal or limited impact were migraine, hay fever and asthma; and osteoarthritis of her right thumb. 

2. On 2 March 2011 Centrelink rejected Ms Lopez’s claim for DSP. Ms Lopez sought a review of the decision by a Centrelink authorised review officer (ARO). On 26 July 2011 the ARO rejected Ms Lopez’s DSP claim.  Ms Lopez sought a review of the CSO decision by the Social Security Appeal Tribunal (SSAT).  On 2 November 2011 the SSAT affirmed the ARO’s decision. On 8 December 2011, Ms Lopez sought review of the SSAT decision by the Administrative Appeals Tribunal (AAT).  

3. At the AAT hearing, Ms Lopez was represented by Mr Cameron Horn, in-house counsel for Victoria Legal Aid (VLA), instructed by Ms Phillippa Dixon of VLA. Ms Ailsa Bramley, an advocate from the Centrelink Program Litigation and Review Branch, appeared for the Secretary, Department of Families, Housing, Community Service and Indigenous Affairs (the Secretary). The Tribunal was provided with the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Exhibit R1).  The applicant tendered the following documents;

   ·the report of Dr Aranda dated 2 July 2012 with several attachments – Exhibit A1

   ·the report of Ms R Villella, (social worker) dated 29 February 2012 – Exhibit A2

   The Tribunal and the legal representatives of the parties were assisted by an interpreter in the Spanish language.

   BACKGROUND TO THE APPLICATION

4. Ms Lopez, who is now 49 years old, married in 1998 and shortly thereafter migrated to Australia with her husband.  From 1998 Ms Lopez was the victim of domestic violence and deprivation, her husband being a heroin addict.  There is one child of this marriage, a 13-year old boy, who is autistic.  Mrs Lopez also has a 19-year old daughter from a previous relationship.  She separated from her husband in 2007 and now has custody of both children.  She has been in receipt of parenting payment single (PPS) since 2000.  In 2010 Ms Lopez applied for DSP and at that time Dr Aranda listed her significant conditions as being fibromyalgia syndrome, gastro oesophageal reflux disease (GORD) and migraine, the latter causing minimal impact.  Centrelink rejected the application as she did not have an impairment rating of 20 points under the Tables for the Assessment of Work-Related Impairment for Disability Support Pension (the Impairment Tables) in Schedule 1B to the Social Security Act 1991 (the Act)).  Ms Lopez lodged a further application on 31 January 2011 and that forms the application which is the subject to this review.

5. Between January 2008 and March 2012, Dr Aranda provided several medical certificates and three supporting treating doctors’ reports (TDRs) to Centrelink, in relation to Ms Lopez’s applications for DSP.  Between 2008 and 2011, all the medical certificates for her PPS have listed her conditions as fibromyalgia syndrome, GORD and stress.  However, the TDRs supporting her DSP applications have varied.   The TDR dated 5 July 2010 listing her conditions as fibromyalgia syndrome and GORD. The TDR dated that of 31 January 2011 nominated fibromyalgia syndrome and IBS. and the TDR dated 9 May 2011 described fibromyalgia syndrome and chronic low back pain as conditions that have significant impact on Ms Lopez’s ability to function.  In addition, the TDRs mentioned migraine, hay fever with asthma, osteoarthritis of her right thumb and bilateral carpal tunnel syndrome. These conditions are considered to be well controlled and not contributing in any way to her incapacity.  .

6. Ms Lopez has been referred to several specialists.  Shortly after her arrival in Australia, she was investigated, presumably for GORD and bowel symptoms.  A gastroscopy in 2001 was said to have shown some reddening of the gastric mucosa and a colonoscopy was normal except for first degree haemorrhoids.  Ms Lopez has frequent headaches, which have been diagnosed as migraine by Dr Aranda. Her paraesthesia in both hands has been investigated by the neurophysiology clinic at St Vincent’s Hospital.  An MRI of Ms Lopez’s brain and cervical spine was normal and nerve conduction studies did not reveal any evidence of carpal tunnel syndrome. She has also been seen at the Royal Victorian Eye and Ear Hospital in regard to her migraine, or what the Vestibular Clinic at the hospital described as continued dizziness and headache.  They made a diagnosis of presumed vestibular migraine and suggested a change in medication.  This assessment at the Royal Victorian Eye and Ear Hospital took place on 8 August 2012. 

7. In March 2011 Ms Lopez was referred to the pain management clinic at the Royal Melbourne Hospital, following a suggestion by Centrelink.  She was accepted for an eight-week course, which she attended twice a week. The course instructed her on how to cope with her pain and to avoid activities that aggravated her pain.

8. Unfortunately, the history various medical practitioners obtained from Ms Lopez has varied from time and there is no clear outline of her symptomatology.

9. Before her marriage, Ms Lopez worked for 15 years making jewellery.  She grew up in El Salvador and throughout her teen years she and her family were continually on the move, running away from fighting during the civil war in that country.  Some of the symptoms that she now suffers from commenced during the 12-year period of the civil war.   

   EVIDENCE BEFORE THE TRIBUNAL

   MS LOPEZ

10. In her evidence, Ms Lopez confirmed that her diffuse muscle aches and pains with associated tenderness started well before she arrived in Australia, although her symptoms were then less severe.  Some years ago, she said she had been referred to a physiotherapist who had prescribed hydrotherapy and various exercises.  The latter have been of no help. As she was allergic to the chlorine in the water, she had to cease the hydrotherapy exercises.  She described her current pain as very strong and at times of such severity that she could not walk or perform her household duties.  She had trouble sleeping as a result of these pains and has had disturbed sleep for many years. 

11. Ms Lopez described her treatment at the pain management clinic at the Royal Melbourne Hospital as consisting of exercises; an explanation of what fibromyalgia syndrome was; and being taught how to move and sit and avoid things that would aggravate her pain.  Mrs Lopez assessed her response to this treatment as reducing her level of pain from ten out of ten on the visual analogue scale to her current level of eight out of ten.  However, she found sitting in the hearing room for an hour and a half had greatly exacerbated her diffuse pain levels as she would normally only sit for 15 minutes at a time.  On a day-to-day basis she was able to complete all usual household tasks provided she did them slowly. 

12. Mrs Lopez said she had been seeing a counsellor for approximately four years. This counsellor would appear to be Ms Villella.  Despite these regular attendances every three weeks since 2008, Ms Lopez did not feel that the counselling had any positive effect on her depression except that it made her feel calmer to discuss her problems.

13. Ms Lopez said her problems of pain in her right thumb and paraesthesia in both hands had been present for 15 years. She understood that her gastro intestinal symptoms were due to GORD, having been so informed by Dr Aranda.  Her current medications were Panadol Osteo and Endep.  The latter is amitriptyline; which is used as an antidepressant and for pain control.  She had found complimentary medicines prescribed by Dr Aranda did not help her symptomatology.  She said she also takes Colofac and Rectinol for her rectal pain, diagnosed by Dr Aranda as proctalgia fugax, which is the Latin term for perianal pain of unknown cause.

    DR ARANDA

14. Dr Aranda gave his evidence by telephone.  He has been Ms Lopez’s treating general practitioner for approximately 10 years.  He described her predominant symptoms as being tiredness, diffuse aches and pains and paraesthesia of her hands, all of which have been present for some years.  He said that, in general, he only referred patients to public hospitals for further opinions to facilitate their access to medication through the public hospital pharmacy system.  He had not referred Ms Lopez to a specialist for assessment of her IBS or her psychiatric condition.  The referral to the pain management clinic had been at the suggestion of Centrelink.  Dr Aranda was of the opinion that neither a pain clinic nor a psychiatrist could provide greater help than he currently did.  He said his prescribing of Endep was for both her pain and depression and was appropriate treatment.  When asked if he had any other treatment in mind for Ms Lopez’ diffuse pain, he said he could try Neurontin or Lyrica.  Dr Aranda considered that Ms Lopez’s depressive symptoms could be part of her fibromyalgia syndrome or a separate entity.

15. When asked by Mr Horn what work capacity Ms Lopez currently had, Dr Aranda was of the opinion that she could not work at all as a result of the trauma she suffered in El Salvador; the demands of looking after her autistic son; and also caring for her mother who had since died. The Tribunal notes that Ms Lopez’s mother died in 2002.

16. The Tribunal endeavoured to obtain more information from Dr Aranda regarding the investigations he had performed in relation to the diagnosis he had made of a fibromyalgia syndrome, given that this diagnosis is one of exclusion.  Dr Aranda could not or would not provide this information and stated that the diagnosis of fibromyalgia syndrome was a purely clinical diagnosis, not dependent on investigations. 

    DOCUMENTARY EVIDENCE

    REPORTS OF DR SOH, ROYAL MELBOURNE HOSPITAL PAIN MANAGEMENT SERVICES

17. Ms Lopez was first seen at the pain management clinic on 3 March 2011.  Her initial consultation in the clinic was conducted by Dr L Soh, a rehabilitation specialist.  Unfortunately, a Spanish-speaking interpreter was not available.  It is therefore difficult to know how  detailed a history Dr Soh obtained from Ms Lopez or derived from Dr Aranda’s letter of referral.  Dr Soh accepted the diagnoses of asthma, migraine (which she described as chronic mild headache) IBS, GORD, nasal surgery and proctalgia fugax.  She also noted the multiple sensitivities to medications and chemicals.  Dr Soh described Ms Lopez’s pains as being all over her body and present for the past 15 years.  The pains were described as being in her upper limbs, lower limbs, back and shoulders. 

18. Dr Soh understood that the bilateral carpal tunnel syndrome had been diagnosed on nerve conduction studies and that Ms Lopez was averse to having surgery for this condition.  Dr Soh assessed Ms Lopez’s pain score at being between 5-10 out of 10, and being constant in her back but intermittent elsewhere.  She noted that this pain disturbed Ms Lopez’s sleep and impacted on her mood, such that she was sometimes depressed.

19. Dr Soh also recorded that Ms Lopez had been treated by a physiotherapist in 2008 but found that the exercises prescribed increased her pain level.  As previously stated, Ms Lopez abandoned hydrotherapy because of an allergy to chlorine.  Dr Soh was under the impression that Ms Lopez was regularly seeing a psychologist. 

20. Dr So’s physical examination revealed a limitation of the range of movement in Ms Lopez’s back due to pain and multiple tender areas over her back, chest wall, joints and muscles. However, the neurological examination was normal.  Ms Lopez was accepted for attendance in the pain programme two days per week for a period of 8 weeks.

21. Dr Soh reviewed Ms Lopez on 3 March 2011 and again on 20 October 2011 (Exhibit A1).  On 20 October 2011 Dr Soh reported that Ms Lopez had developed a new pain in her left elbow, arm and forearm, which she considered to be part of her fibromyalgia.  She considered Ms Lopez to be managing quite well at home, despite her pain, and that she had benefited from the program by learning to pace herself.  At that time Dr Soh did not believe that the pain management clinic had anything further to offer and encouraged Ms Lopez to continue with her exercises and walking. Mrs Lopez was discharged from the clinic.  The Tribunal notes that the left elbow, arm and forearm symptoms were diagnosed by Dr Aranda on 3 November 2011 as left golfer’s elbow and left tennis elbow.  This is a common terminology used for lateral epicondylitis of the elbow.

    REPORT FROM THE ROYAL WOMEN’S HOSPITAL

22. Ms Lopez was seen on referral from Dr Aranda in the gynaecology clinic at the Royal Women’s Hospital on 23 March 2011.  Her presenting symptom was ongoing pelvic pain.  A pelvic ultrasound performed on 10 March 2011 demonstrated a left-sided probable endometrioma measuring 16 x 15 millimetres and a left tubo-ovarian mass 21 millimetres in diameter.  The right ovary and uterus were normal.  There were no other gynaecological symptoms.  Dr R Wong, consultant gynaecologist, gave Ms Lopez the options of conservative management with analgesia or a laparoscopy to assess the underlying pathology and resect any lesions as necessary.  Dr Wong considered that any such operation may not actually relieve her symptoms. As Ms Lopez was averse to surgery, ongoing review was arranged.

    REPORT OF MS ROSA VILLELLA, DATED 29 FEBRUARY 2012 (EXHIBIT A2)

23. Ms Lopez has been consulting Ms Villella, a social worker, since late 2007 and has been seeing her every two to three weeks since.  In her reports, Ms Villella relates the domestic violence to which Ms Lopez was subjected by her heroin-addicted husband; the difficulties experienced with her son who is autistic; and the trauma of a lengthy custody battle for the son.  Ms Villella also detailed the atrocities Ms Lopez was exposed to during the civil war in El Salvador.

24. Ms Villella acknowledged she was not qualified to make a psychiatric assessment but was of the opinion that Ms Lopez would be most appropriately rated, in terms of impairment rating, at 20 points on the Impairment Tables.  The Tribunal notes Dr Aranda has subsequently diagnosed a depressive anxiety disorder on 21 April 2011 and post‑traumatic stress disorder (PTSD) on 27 May 2011 (according to his summary Annexure dated 27 May 2011).

    LETTER FROM ST VINCENT’S HOSPITAL (UNDATED)

25. The only information provided to the Tribunal regarding Ms Lopez’s hay fever and asthma is a letter from the Respiratory Department at St Vincent’s Hospital to the Department of Housing regarding Ms Lopez’s Housing Commission flat.  This letter advises that she is allergic to dust mites and it would be to her benefit if the carpet in her apartment was removed.

    DR ARANDA’S LETTER DATED 2 JULY 2012

26. In this letter Dr Aranda states that Ms Lopez:

    .... has several chronic and complex medical and mental conditions.

    ...  All her conditions have been fully diagnosed and treated and they have not showed any improvement for many years.  ...

    He states that he has referred her to several specialists; that her conditions are not likely to improve within two years and that, in his opinion, the impairment rating for some of these conditions could be 10 points and for others 20 points under the Impairment Tables.  He considered her totally unfit to work permanently and undertake any training activity at this stage and in the near future.

    JOB CAPACITY ASSESSMENTS

27. Ms Lopez has undergone five job capacity assessments between 16 January 2008 and 24 May 2011.  While the medical conditions under consideration have varied from time to time, they have on each occasion been found to be diagnosed but not fully treated or stabilised.

    RELEVANT LEGISLATION

28. The Act delineates the qualifications required for DSP in s 94 of the Act, which states:

    (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 Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and ...

    TRIBUNAL’S DELIBERATIONS

29. On completion of the hearing of the evidence, Mr Horn conceded that Ms Lopez’s IBS and psychiatric condition had not been fully diagnosed, treated and stabilised and should not be considered as part of her claim for DSP.  However, he maintained that her fibromyalgia syndrome was sufficiently severe to attract 20 points under the Impairment Tables.  The Tribunal does not agree. 

30. The history obtained from Ms Lopez on various occasions varies considerably in its description of her symptoms.  She has not been assessed by an appropriate specialist.  It would appear from Dr Aranda’s evidence that he has not eliminated other causes of diffuse muscle pain which is the characteristic feature of fibromyalgia syndrome but also occurs in numerous other conditions which are more readily amenable to treatment.

31. The Tribunal accepts that Ms Lopez has shown little improvement over the last three to four years, there being little response to treatment with Endep (amitriptyline) and Panadol Osteo.  However, in his evidence to the Tribunal, Dr Aranda suggested that a trial of treatment with Neurontin or Lyrica might be beneficial. [The Tribunal notes that Lyrica has recently been listed on the Pharmaceutical Benefits Schedule and would therefore be available to Ms Lopez at low cost or perhaps no cost.]  Given that all appropriate medication has not been trialled, it cannot be said that Ms Lopez’s fibromyalgia syndrome has been fully treated and stabilised.   Therefore, it is not possible to assign an impairment rating in accordance with Clause 4 of the Introduction to the Impairment Tables and this condition does not meet the requirement of s 94(1)(b) of the Act.

32. The Tribunal affirms the decision under review. 

I certify that the preceding 32 (thirty-two) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member.

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

Administrative Assistant

Dated 19 December 2012

Date of hearing	23 October 2012
Counsel for the Applicant	Mr Cameron Horn, Victoria Legal Aid
Solicitors for the Applicant	Ms Phillippa Dixon, Victoria Legal Aid
Advocate for the Respondent	Ms Ailsa Bramley, Centrelink Program Litigation and Review Branch