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

[2017] AATA 1069

Hollier and Secretary, Department of Social Services (Social services second review) [2017] AATA 1069 (23 February 2017)

Division:GENERAL DIVISION

File Number:          2015/2633

Re:Samantha Hollier

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Miss E A Shanahan, Member

Dr B Ng, Member

Date:23 February 2017

Place:Melbourne

The Tribunal affirms the decision under review.

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

Miss E A Shanahan, Member

SOCIAL SECURITY - Disability Support Pension claim - chronic pain and depression - conditions not fully treated and stabilised - impairment rating less than 20 points - Program of Support not completed - decision affirmed

Legislation

Social Security Act 1991 (the Act)

Social Security (Administration) Act 1999

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

Social Security (Active Participation for Disability Support Pension) Determination2014

REASONS FOR DECISION

Miss E A Shanahan, Member

Dr B Ng, Member

23 February 2017

1. Ms Hollier lodged an application for Disability Support Pension (DSP) with Centrelink on 17 April 2014.  The claim was denied at first instance and on review by a Centrelink Authorised Review Officer (ARO).  On 22 April 2015, the Social Security Appeals Tribunal (SSAT) affirmed the decision to reject Ms Hollier’s claim for DSP. 

2. Ms Hollier lodged an application to the Administrative Appeals Tribunal on 27 May 2015 for review of the decision of the SSAT.

3. The first day of hearing took place by telephone on 28 September 2016. Ms Hollier was self‑represented.  She was unable to attend in person due to personal travel constraints and made arrangements to appear via teleconference at the practice of her General Practitioner, Dr Zeiyad Al Mayahe, in Morwell, Victoria. The teleconference was also attended by her sister Loretta Hollier. The hearing was adjourned in light of the disclosure of the existence of additional evidence during the hearing which was subsequently provided by Dr Al Mayahe.

4. The hearing resumed on 25 November 2016.  Ms Hollier attended the Tribunal in person and was supported by her sister.  During the hearing, Ms Hollier indicated that she was undergoing investigations for medical issues that had arisen over the previous twelve months and noted in particular that she was in the process of being assessed for medical compensation by the Transport Accident Commission (TAC) in Victoria after having been involved in a motor vehicle accident (MVA) on 28 May 2014.

5. The Secretary of the Department of Social Services was represented by Ms Vincci Chan, a lawyer from the FOI and Litigation Branch of the Department of Human Services. The Tribunal was provided with documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T-Documents) and these were accepted into evidence by the Tribunal.

   BACKGROUND TO THE APPLICATION

6. In 2006 Ms Hollier underwent implantation of the long-acting contraceptive Implanon. This was inserted at the same site of a previous implant and when the local anaesthetic wore off she complained of severe pain at the site and in the left arm. Some six days later the implant was removed because of the severity of the pain that had spread to her left leg, left side of thorax and face.  There was local pain relief only after removal of the implant.

7. Ms Hollier took legal action for medical negligence and on 23 April 2010 Hulme J in the Supreme Court of New South Wales handed down his judgment finding in favour of the Defendant, Dr Sutcliffe and awarding costs against Ms Hollier. The latter are said to be of the order of $400,000. Judge Hulme found there is no objective evidence of physical damage having been caused by the implantation procedure. He accepted the diagnosis of a chronic regional pain syndrome (CRPS) but stated it did not meet the factual causation test of the relevant New South Wales legislation. 

8. Ms Hollier has made several unsuccessful claims for DSP. The first of these was reviewed by the AAT (File No. 2008/3818 in the name of Parker) and heard by Deputy President McDonald who in 2009 decided there was a reciprocal relationship between her chronic pain and mental health condition and as the latter was not fully treated and stabilized, it was not possible to determine an impairment rating under the relevant tables at the time.

9. Shortly after this decision was handed down Ms Hollier underwent a Job Capacity Assessment (JCA) relating to her mental disorder. The psychologist who performed the assessment recommended an impairment rating of 30 points for the condition. Centrelink accepted this recommendation and the DSP was paid to Ms Hollier from 24 June 2009 until 16 July 2010 when she no longer qualified as earnings preclude payment. Further applications for DSP were made in 2012, 2013 and 2014 and all were rejected by Centrelink based on JCA assessments that found Ms Hollier’s medical conditions were either not fully diagnosed, treated and stabilised or when considered as such did not attract an impairment rating of 20 points.

10. Ms Hollier’s last application for DSP was lodged with Centrelink on 17 April 2014.  On 5 June 2014, a Centrelink officer rejected her claim as she did not have an impairment rating of 20 points or more.  On 13 June 2014, an ARO affirmed the original decision to reject the claim for DSP.  The ARO decided that the Ms Hollier’s chronic pain and endometriosis were fully diagnosed, treated and stabilised and the chronic pain attracted an impairment rating of 10 points but the depression was not fully diagnosed, treated and stabilised. Ms Hollier applied to the SSAT for review of this decision.

11. In affirming the decision of the Centrelink ARO the SSAT highlighted the earlier extensive specialist evidence relating to Ms Hollier’s chronic pain syndrome and psychiatric conditions and that the medical evidence provided at that time found these two conditions to be interlinked.  The SSAT acknowledged that while the depression and anxiety were fully diagnosed, there was no evidence provided that Ms Hollier had undertaken effective mental health treatment and that her depression had been stabilised and thus an impairment rating could not be assigned.

12. On the first day of hearing before this Tribunal Ms Hollier acknowledged that the applicable period of consideration for her application for DSP was from 17 April 2014 to 17 July 2014 as provided by the Guidelines.  It became apparent during the hearing that there were additional medical records previously not submitted in relation to the frequency and nature of the medical treatment provided to Ms Hollier.  Dr Al Mayahe submitted this additional information via facsimile on 28 September 2016.

    EVIDENCE BEFORE THE TRIBUNAL

13. The first day of hearing was aborted when it became obvious that Dr Al Mayahe considered that his clinical records contained documentation of Ms Hollier receiving psychological treatment during the review period. He agreed to provide these.  Little evidence was given and Dr Al Mayahe’s heavily accented English was not conducive to the giving of telephone evidence.

14. Ms Hollier attended the resumed hearing on 25 November 2016 and gave evidence on oath. She confirmed there had been a three plus year gap in her receiving any medical treatment (2010 to late 2012 inclusive) as she had experienced difficulty obtaining ongoing medical treatment from a local general practitioner because of her previous litigation in relation to the insertion of the Implanon.  In the course of telephone direction hearings Ms Hollier had informed the Tribunal of the MVA she had been involved in on 28 May 2014. She said that she had been admitted to the Latrobe Valley Regional Hospital after this accident and was then transferred to the Royal Melbourne Hospital where she underwent surgery.  She had been advised by her lawyers not to provide any medical information regarding these injuries and their treatment to the AAT.

15. Ms Hollier confirmed that she had been seeing a mental health nurse and not a psychologist in 2014.  She said she managed her CRPS herself and took only Advil and Panamax for her persistent left-sided burning pain in the arm and leg and paraesthesia (pins and needles) in the left side of her face. She had declined stronger medication as she feared addiction and many medications trialed in the past had been ineffective. Ms Hollier’s sister said she had noticed that when tired the left side of Ms Hollier’s face sags.

16. Ms Hollier told the Tribunal that in the interim between the first and second days of hearing she had undergone considerable further investigation relating to the MVA injuries and as a result the TAC was accepting her claim. She expected compensation payments to commence in May 2017. Further investigation and surgery was considered likely to be required.

17. Ms Hollier accepted the Secretary’s contention that based on the medical evidence available her depressive condition was not fully treated and stabilised at the time of her application and the 13 weeks thereafter.

    Documentary Evidence before the Tribunal

18. As previously stated there have been numerous JCA recommendations only one of which provided an impairment rating of 20 or more points.

19. The Tribunal was provided with all of the medical reports generated for the action in medical negligence heard by the Supreme Court of New South Wales and relating to Ms Hollier’s clinical status in 2007/2008. The documentary evidence relating to her medical status in 2013 and 2014 is sparse. Dr Al Mayahe had completed two Treating Doctor forms and another doctor in the same practice completed one providing diagnoses of CRPS Type 2 and a Major Depressive Disorder (MDD) resulting in incapacity for any work for more than two years. In October and December 2015 Dr Al Mayahe provided progress reports providing the same diagnoses, but on 20 October 2015 he considered Ms Hollier’s prognosis to be uncertain as she was now receiving treatment from a psychologist and may as a result improve. He provided an impairment rating of 15 to 25 points under Tables 2, 3 and 5 of the Impairment Tables.

20. In a report dated 12 November 2015 Dr Al Mayahe stated the MDD was fully diagnosed, treated and stabilised after having been treated by a mental health nurse in 2013 and Ms Hollier was now seeing Mr John Redman, a clinical psychologist. On this occasion an impairment rating of 20 points was assigned for the MDD, giving an overall total of 30 points.

21. Mr John Redman first saw Ms Hollier on 26 August 2014. She was seen again on 6 October and 13 November 2014 for what was described as a psychological assessment and treatment which was related to both the pre-existing CRPS and MDD, the subject of the current claim, but also to the response to the MVA of 28 May 2014. The previously reported symptoms were again recorded but there was also a complaint of severe right lower back pain and symptoms of Post-Traumatic Stress Disorder (PTSD) due to the MVA. Mr Redman performed six tests in the form of questionnaires devised for diagnostic purposes and all were positive i.e. she had a wide range of physical and psychological symptoms; had unbearable left body side and right back pain; had a 53% disability rating (Oswestry Disability Index); poor memory; raised rating scale for depression (Hamilton and Kessler scales) and positive scales for PTSD. Later reports provided in August 2015 and February 2016 (these two being similar) suggest Ms Hollier has not been seen again by Mr Redman and that her treatment was provided by the mental health nurse Jackie Metcalf and consisted of seven visits over six months. The records of Dr Al Mayahe record that Ms Metcalf saw Ms Hollier on three occasions and spoke to her briefly by telephone on three other occasions before Ms Metcalf resigned from her position on 22 May 2014. 

22. At the Secretary’s request Dr C Minogue, Occupational Physician, had assessed the claim on the medical reports available as at 18 March 2016 and again on 6 September 2016, the Secretary by then having received the report of Dr Anthony Cidoni, psychiatrist. In his initial assessment Dr Minogue concluded that both the CRPS and the MDD were not fully diagnosed, treated and stabilised and that it was possible that with adequate treatment Ms Hollier could work for more than 15 hours per week. He recommended that a Program of Support would be of benefit in improving Ms Hollier’s work capacity.

23. Dr Minogue provided his report of 6 September 2016 after receiving Dr Cidoni’s report of 29 July 2016 in which Dr Cidoni stated that the MDD was fully diagnosed, treated and stabilised based on the history he obtained from Ms Hollier and a limited number of other medical reports provided to him by Victoria Legal Aid (VLA). Dr Cidoni recommended an impairment rating of 10 points for the MDD and accepted the JCA recommendation of 10 points for the chronic pain syndrome made on 26 June 2013 although he declared himself not to be an expert in the field of CRPS. Dr Cidoni opined that Ms Hollier may be able to resume work within two years if provided with suitable training. Dr Minogue, despite pointing out errors in Dr Cidoni’s report (see later) conceded to Dr Cidoni’s impairment rating of 10 points for the MDD but maintained his opinion that the CRPS was not fully treated and stabilised and therefore could not be assigned an impairment rating.

24. Dr Cidoni saw Ms Hollier on 28 July 2016. He obtained a detailed history and had access to numerous medical reports from 2007 and 2008 and reports of Dr Al Mayahe and Mr Redman from 2011 to 2015. (Tribunal Note: while there is a letter from Dr Al Mayahe said to be a certificate completed on 11 June 2011 at T52, Dr Al Mayahe states that he commenced treating Ms Hollier on 26 March 2012). Dr Cidoni recorded that Ms Hollier had been on sertraline for two years and then the antidepressant fluoxetine for seven years, that she had had seven sessions with the mental health nurse Ms Metcalf and twelve sessions with Mr Redman, all without any benefit.  Dr Cidoni confirmed the diagnosis of MDD and on the history given as to treatment received considered the condition to be fully diagnosed, treated and stabilised and to be of a moderate degree attracting an impairment rating of 10 points.

25. The clinical records of the Hollie Drive Medical Centre relating to Ms Hollier and covering the period from 28 November 2013 to 10 December 2014 were received on 29 September 2016.

26. The initial appointments of 28 November 2013 and 23 January 2014 were with the mental health nurse attached to the practice.  There is no mention of who referred Ms Hollier and a Mental Health Plan did not at the time exist and had to be requested by Ms Metcalf. Ms Metcalf accepted the diagnoses of CRPS and MDD made in 2008 and recorded that Ms Hollier suffered from financial stresses, was suing Centrelink, had separated from her husband and had recently been involved in conflict with her older children who were using the drug ‘Ice’ (Crystal methamphetamine).The last in-person consultation was on 22 May 2014 when her mood was described as being euthymic i.e. normal.  The notes of three telephone calls made when appointments were missed all state mood subjectively described as euthymic, anxiety symptoms persist.

27. Dr Al Mayahe’s entries are very brief. On 4 March 2014 he records that Ms Hollier has been stable since May 2013; on 2 May 2014 the entry reads under high stressful (sic) condition due family and work issue and on 28 May 2014 it reads requsted (sic) urin (sic) drug screen for court and medical puppus (sic).  The Tribunal notes that 28 May 2014 is the date of the MVA.  Ms Hollier had had a positive urine test for canabes (sic) reported on 29 January 2014.  She was next seen for post-operative review on 11 June 2014 having had a laprotomy (sic) it seems at Latrobe Regional Hospital.  The wound staples were removed by a nurse and Endone was prescribed for pain.  On 20 June 2014 Lovan 20 mg daily was prescribed, this being the first entry of the prescribing of an antidepressant.  An ultrasound of Ms Hollier’s abdomen was requested and performed in September 2014 and was said to be normal.  Back pain was first reported on 20 October 2014 and was said to occur after eating meat.  On 12 November 2014 Dr Al Mayahe records that the back pain is ongoing but now radiates to the right leg and that she has seen a specialist.  Entries thereafter relate to repeat prescriptions of her medication and a new Mental Health Plan.

    RELEVANT LEGISLATION

28. The qualification for DSP is provided in s 94 of the Act which states:

    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 ...

    The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 Tables 2, 3 and 5 as follows:

Table 2 – Upper Limb Function Introduction to Table 2

·   Table 2 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring the use of hands or arms.

·   The diagnosis of the condition must be made by an appropriately qualified medical practitioner.

·   Self-report of symptoms alone is insufficient.

·   There must be corroborating evidence of the person’s impairment.

·   Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:

• a report from the person’s treating doctor;
• a report from a medical specialist confirming diagnosis of conditions associated with upper limb impairment (e.g. arthritis or other condition affecting upper limb joints, paralysis or loss of strength or sensation resulting from stroke or other brain or nerve injury, cerebral palsy or other condition affecting upper limb coordination, inflammation or injury of the muscles or tendons of the upper limbs, amputation or absence of whole or part of upper limb);
• a report from an allied health practitioner (e.g. physiotherapist, occupational therapist or exercise physiologist) confirming the functional impact;
• results of diagnostic tests (e.g. X-Rays or other imagery);
• results of physical tests or assessments.

·   For the purposes of this Table upper limbs extend from the shoulder to the fingers.

Table 3 – Lower Limb Function

Introduction to Table 3

·   Table 3 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring the use of legs or feet.

·   The diagnosis of the condition must be made by an appropriately qualified medical practitioner.

·   Self-report of symptoms alone is insufficient.

·   There must be corroborating evidence of the person’s impairment.

·   Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:

• a report from the person’s treating doctor;
• a report from a medical specialist confirming diagnosis of conditions associated with lower limb impairment (e.g. arthritis or other condition affecting lower limb joints, paralysis or loss of strength or sensation resulting from stroke or other brain or nerve injury, cerebral palsy or other condition affecting lower limb coordination, inflammation or injury of the muscles or tendons of the lower limbs, amputation or absence of whole or part of lower limb);
• a report from an allied health practitioner (e.g. physiotherapist, occupational therapist or exercise physiologist) confirming the functional impact;
• results of diagnostic tests (e.g. X-Rays or other imagery);
• results of physical tests or assessments.

·   For the purposes of this Table lower limbs extend from the hips to the toes.

Table 5 – Mental Health Function

Introduction to Table 5

·   Table 5 is to be used where the person has a permanent condition resulting in functional impairment due to a mental health condition (including recurring episodes of mental health impairment).

·   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 by a psychiatrist).

·   Self-report of symptoms alone is insufficient.

·   There must be corroborating evidence of the person’s impairment.

·   Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:

• a report from the person’s treating doctor;
• supporting letters, reports or assessments relating to the person’s mental health or psychiatric illness;
• interviews with the person and those providing care or support to the person.

·   In using Table 5 evidence from a range of sources should be considered in determining which rating applies to the person being assessed.

·   The person may not have good self-awareness of their mental health impairment or may not be able to accurately describe its effects.  This is to be kept in mind when discussing issues with the person and reading supporting evidence.

·   The signs and symptoms of mental health impairment may vary over time.  The person’s presentation on the day of the assessment should not solely be relied upon.

·   For mental health conditions that are episodic or fluctuate, the rating that best reflects the person’s overall functional ability must be applied, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.

SUBMISSIONS

1. Ms Hollier did not make any submissions other than to say that she understood the difficulties relating to the more recent medical evidence and her limited treatment. Ms Hollier believed she had completed the 18 month Program of Support as required prior to lodging her claim.

2. Ms Chan in her opening statement submitted that Ms Hollier did not meet the criteria of s 94(1)(b) in that her medical conditions of CRPS and MDD were not fully treated and stabilised and there was doubt as to whether they would persist for 24 months if adequately treated. It was also contended that several reporting doctors considered her able to work for 15 hours per week and she had been performing voluntary work for 10 hours per week. Ms Chan confirmed that Ms Hollier had not completed the Program of Support.

   TRIBUNAL’S DELIBERATIONS

3. The issue is whether Ms Hollier satisfied the criteria for DSP during the stipulated period.

4. The Tribunal finds that she had both a physical and mental condition and hence satisfies the requirements of s94(1)(a) of the Act, however the exact diagnostic nature of both conditions is debatable given a three year hiatus in her receiving medical attention and treatment.

5. Based entirely on the evidence before it and in particular the medical evidence or lack thereof during the review period the Tribunal determines that neither condition was then fully treated and stabilised and therefore could not be assigned an impairment rating under the Impairment Tables.  Ms Hollier had not received any treatment for nearly three years between 2010 and late 2012 and did not re-commence antidepressant medication until after the review period according to Dr Al Mayahe’s clinical records.

6. Dr Cidoni’s assessment and report of July 2016 has confirmed a diagnosis of MDD, there being no opinion from a psychiatrist since 2008.  The two psychiatric opinions provided were for medico-legal purposes only with both psychiatrists making a diagnosis of MDD. Ms Hollier had been treated by two psychologists between 2006 and 2008 who had made a diagnosis of reactive depression (now known as an Adjustment Disorder).

7. Dr Cidoni reported that Ms Hollier had been taking antidepressant medication for nine years, had received seven counselling sessions from a mental health nurse in 2014 and had attended twelve treatment sessions with Mr J Redman, clinical psychologist in 2014-15.  Based on this information he concluded that Ms Hollier’s MDD was fully treated and stabilised as far as was possible.  The evidence before the Tribunal is that Ms Hollier had three face-to-face counselling sessions with the mental health nurse, Ms Metcalf, between November 2013 and May 2014 and three assessment/counselling sessions with Mr Redman in late 2014, these relating in part to the MVA of 28 May 2014.  In summary, the Tribunal did not find contemporaneous medical evidence that Ms Hollier was fully diagnosed, treated and stabilised at the time of the claim or within the following 13 weeks.

8. In his report of July 2016, Dr Cidoni suggested alternative antidepressant agents of different classes such as venlafaxine and mirtazapine that were reasonably available and were likely to lead to a significant functional improvement in Ms Hollier’s condition and enable her to undertake work of 15 hours per week or more within two years of the qualification period.  Thus despite opining that Ms Hollier’s MDD was fully treated and stabilised he suggested further available treatment likely to be more effective.

9. As neither condition was fully treated and stabilised an impairment rating as required to satisfy s 94(1)(b) of the Act cannot be assigned.  Thus it is not necessary for the Tribunal to consider the question of continuing inability to work.

10. The Tribunal affirms the decision under review.

39.      

40.     I certify that the preceding 38 (thirty-eight) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member

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

Associate

Dated: 23 February 2017

Date of hearing:	28 September, 25 November 2016
Applicant:	In person
Advocate for the Respondent:	Ms Vincci Chan, Department of Human Services