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

[2018] AATA 304

Jorj and Secretary, Department of Social Services (Social services second review) [2018] AATA 304 (19 February 2018)

Division:General Division

File Number:2017/1297           

Re:Lina Jorj

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Miss E A Shanahan, Member

Date:19 February, 2018 

Place:Melbourne

The Tribunal affirms the decision under review as at the date of her application on 9 May 2016, and in the following 13 weeks, Mr Jorj did not satisfy the requirements of s 94(1)(b) of the Social Security Act 1991, nor did she meet the residency criteria for the disability support pension.

[sgd...........................................................

Miss E A Shanahan, Member

SOCIAL SECURITY – disability support pension – diagnoses of fibromyalgia and ankylosing spondylitis – ankylosing spondylitis a likely but not proven diagnosis – treatment impacted on by pregnancies – medication side effects – five dependent children under the age of eight – conditions not fully diagnosed treated and stabilised – no impairment rating attracted – not qualified in 2016 as 10 year residency in Australia not met– medical condition deteriorating – proposed treatment withdrawn – new application advised – decision affirmed.

Legislation

Social Security Act 1991

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

19 February, 2018 

1. Ms Jorj applied to Centrelink for the disability support pension (DSP) on 9 May 2016. She claimed the medical conditions of ankylosing spondylitis, fibromyalgia and contact dermatitis as the cause of her disablement. She had been experiencing lower back pain and diffuse muscle and joint pains since approximately 2011. On 7 July 2016 Centrelink rejected her application. Ms Jorj sought a review of the decision by the Centrelink Authorised Review Officer (ARO). The ARO affirmed the decision on 13 October 2016.

2. Ms Jorj sought review of the ARO decision by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT Tier 1) on 25 October 2016. At the Tier 1 level the Tribunal determined that none of the medical conditions had been fully diagnosed, treated and stabilised and therefore did not attract an impairment rating as required by s 94(1)(b) of the Social Security Act 1991 (the Act). It therefore affirmed the ARO decision on 9 February 2017. Ms Jorj then lodged an application for review of the AAT Tier 1 decision by the General Division of the AAT (AAT Tier 2) on 8 March 2017. The period under consideration in this review is from the date of the application to Centrelink, 9 May 2016 and for the subsequent 13 weeks to 8 August 2016, as defined in the Social Security (Administration) Act 1999 (the qualification period).

3. The review application was set down for hearing on 8 September 2017 but was adjourned after approximately one hour as it was clear to the Tribunal that there was a lack of available medical evidence. The clinical records of the Royal Melbourne Hospital relating to Ms Jorj were summonsed. The hearing was reconvened on 1 February 2018. On both occasions Ms Jorj was self-represented and accompanied by her estranged husband and several children. The Secretary, Department of Human Services (the Secretary) was represented by Ms Jenna Molan lawyer, with the FOI Litigation Branch of the Department of Human Services. The Secretary provided the Tribunal documents pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) (Exhibit R1). The reports of other doctors and the Royal Melbourne Hospital were tendered and assigned exhibit numbers, a list of which is appended to this decision. Ms Jorj gave evidence before the Tribunal. The Tribunal was greatly assisted by an interpreter in the Arabic language, Ms Ranja Zayed.

   BACKGROUND TO THE APPLICATION

4. Ms Jorj was born on 4 March 1983 in Iraq and arrived in Australia on 17 May 2006 on a Provisional Spouse/Partner Visa, subclass 309. On 7 August 2008 she obtained a Spouse/Partner Visa subclass 100 and on 15 February 2011 she became an Australian citizen. As the holder of a subclass 309 visa is not a permanent resident Ms Jorj did not meet the 10 year residency requirement of s 94(1)(e) of the Act. She will meet this requirement on 7 August 2018.

5. Between May 2008 and December 2016 Ms Jorj has given birth to five children. She has had two or three miscarriages. At the time she applied for the DSP she had five children under the age of eight.

6. In October 2011 Ms Jorj first reported a history of low back pain of four years duration to her general practitioner, Dr Elias. Dr Elias requested a CT scan of the lumbar spine. This revealed bilateral sacro-iliitis estimated at Grade 3‑4. Otherwise the lumbo-sacral spine was normal with no evidence of intervertebral or facet joint or disc pathology. The radiologist, Dr French, raised the possibility of a diagnosis of ankylosing spondylitis or another sero-negative arthropathy. According to the medical literature, 80 to 90 per cent of patients with ankylosing spondylitis or other spondylo-arthridities such as sacro-iliitis alone, have positive serology for the HLA– B27 antibody.

7. Ms Jorj was referred to the Rheumatology Clinic at the Royal Melbourne Hospital for further investigation and treatment. Since her first attendance in February 2013 she has been seen on a regular basis. On most occasions she was seen by the rheumatology registrar who changes at 12-monthly intervals; but on several occasions she was seen in conjunction with a consultant rheumatologist. Initial plain x-rays of her spine and sacroiliac joints did not confirm the diagnosis of bilateral sacro-iliitis. A re-reading of the films by another radiologist resulted in confirmation of what was said to be Grade 2 inflammatory changes in the sacroiliac joints. X-rays of the remainder of the spine were again considered normal. Initially, she was treated with a variety of non-steroidal anti‑inflammatory drugs. She did not tolerate Naprosyn or Celebrex. However, these medications improved her pain level, assessed by the rheumatology unit, in terms of its impact on activities of daily living, as being very severe.

8. Ms Jorj was advised to undertake a regular exercise program but had difficulty in doing so given her large family and consequent responsibilities. Further pregnancies resulted in suspension of her NSAID’s medication for the duration of each pregnancy but generally she remained well while pregnant. She was advised to take regular paracetamol and while prednisolone was considered, she preferred not to take this drug while pregnant. Her treatment was changed to Mobic, another anti‑inflammatory medication, with varying success. In 2014 she developed a rash on her hands and feet and was seen by the dermatology clinic the following year. A diagnosis of contact dermatitis was made and an eczema management program was instituted. She was noted to have paronychia (toenail bed infection).

9. By late November 2014 Ms Jorj was complaining of widespread aches in all joints. On examination she had generalised muscle and joint tenderness. A diagnosis of fibromyalgia, in addition to ankylosing spondylitis, was then made.

10. In late 2014, in consultation with Dr Simon Chatfield rheumatologist, consideration was given to the use of a monoclonal antibody known as a tumour necrosis factor (TNF alpha) inhibitor. Prior to commencing this treatment, further investigations were to be undertaken. These investigations were delayed when the letter requesting that her general practitioner arrange these locally went astray.

11. In December 2015 Ms Jorj was involved in a motor vehicle accident when the car she was in was struck from behind. This resulted in the severe exacerbation of the pain in her knees, right hip, neck and back and she was unable to perform personal or domestic duties without assistance.

12. In April 2016, Dr Ngian, consultant rheumatologist, in addition to the previously made diagnoses also considered Ms Jorj to be depressed. Dr Ngian requested that the general practitioner (Dr Elias) arrange for consultation with a psychologist. Dr Ngian commenced Ms Jorj on Duloxetine, 30mgs at night as this medication is said to be effective in both depression and fibromyalgia. When reviewed two months later, Ms Jorj was again pregnant and was actually in the second trimester of her pregnancy. The family was under considerable stress as her husband was taking time off from work to care for her and the children. Ms Jorj had not taken the Duloxetine because of the pregnancy and had ceased taking Mobic. Dr Ngian prescribed paracetamol and planned to review Ms Jorj in three months’ time.

13. Apparently there was a confrontation between Dr Ngian and Ms Jorj and her husband; although Dr Ngian did provide a report addressed To Whom It May Concern for the purpose of Ms Jorj’s DSP application. This report stated the diagnosis was ankylosing spondylitis and that she was HLA-B27 positive. This is incorrect. The report also said that Ms Jorj had co-existing fibromyalgia and contact dermatitis and despite maximal non‑steroidal anti-inflammatory therapy her symptoms remained severe. The conditions were described as chronic with no cure and liable to progress in the future.

14. In July 2016 a further review was conducted in the rheumatology clinic. On this occasion, the report to Dr Elias stated that the rheumatology service was having difficulty ascertaining whether Ms Jorj had ankylosing spondylitis or not. The letter concluded by saying: although we do not have a clear x-ray diagnosis of ankylosing spondylitis, I think this is likely. It was suggested at this consultation that following her pregnancy or during its later stages she could consider wearing a pelvic girdle brace. It was arranged to review the earlier x-rays on which the diagnosis of sacro-iliitis had been made and if the opinion was dubious then an MRI was to be performed.

15. Dr Elias arranged a CT scan of Ms Jorj’s head and cervical spine because of an increase in the level of her neck pain and occipital headaches. This was performed on 27 February 2017 and both investigations were entirely normal.

16. Following the birth of her fifth child Ms Jorj resumed regular attendance at the Royal Melbourne Hospital. On 16 March 2017, the consultant rheumatologist, Dr Micallef, listed her medical conditions as back pain since 2011, Grade 2 sacro-iliitis on x-rays 2013, HLA‑B27 negative, fibromyalgia. As a result of her examination and review of Ms Jorj, Dr Micallef stated that Ms Jorj’s widespread pain was probably multifactorial and due to pelvic instability, fibromyalgia and possibly an underlying spondylo-arthropathy. Dr Micallef did not believe the pain was clearly inflammatory and opined that more evidence was required before considering further treatment. An MRI of the spine, sacroiliac joints and hips was to be requested.

17. Ms Jorj was encouraged to work closely with the physiotherapist at the Mercy Hospital, although it now appears that she has still not been given an appointment with the physiotherapy department at either the Mercy or the Royal Melbourne Hospitals. She is on the waiting-list for physiotherapy.

18. The MRI was performed on 2 June 2017 (the entry that it was ordered by Mr Andrew Kade, neurosurgeon, is apparently incorrect). There are typographical errors in the report - such as one aspect of the technique is described as relating to the cycle spine instead of the cervical spine. The cervical and thoracic spines were essentially normal. The only abnormality in the lumbar spine was a small right paracentral disc protrusion which the radiologist reported as possibly impinging on the right S1 nerve root. It had not been possible to resolve this possibility as the axial views were of poor quality because Ms Jorj could not lie flat and still for a prolonged period. Mild bilateral changes were noted within the sacrum at the sacroiliac level bilaterally and these were considered suggestive of inflammation.

19. The last report of the Royal Melbourne Hospital provided to the Tribunal was dated 1 July 2017 when Ms Jorj was reviewed by the then rheumatology registrar in the clinic. On this occasion the diagnosis advanced was likely axial spondylo-arthritis, fibromyalgia and mechanical back pain. It was noted that throughout her attendance over a period of four years her symptoms had remained unchanged. Reference was made to the absence of other system diseases which often accompany spondylo-arthritis such as peripheral arthritis symptoms, inflammatory bowel disease and inflammatory eye disease. Physical examination at this visit (1 July 2017) revealed widespread soft tissue tenderness and restricted movement of the spine in all directions. Ms Jorj was using a single point walking stick at all times. Dr Leung, the registrar, reported the findings of the MRI showing a L5/S1 disc protrusion and stated there was no evidence of right S1 nerve root impingement. The Tribunal will comment on this below.

20. Dr Leung states that she discussed the treatment options with Ms Jorj, including the use of biologic agents, also known as immuno-modifiers. These monoclonal antibodies had been extremely successful in controlling the symptoms of ankylosing spondylitis in a majority of patients seen at the clinic.

21. Ms Jorj was initially reluctant to undertake such treatment but having read the data and documentation provided she eventually decided to proceed. It was her evidence before the Tribunal that she signed the consent form to be enrolled in the clinical trial. However, she was subsequently advised by Dr Chatfield that in her case the risk of side-effects was too high and she should not proceed.

22. Following this, she had a further appointment with Dr Leung and again stated she would have the injections. She was told this was not to occur because the hospital could not take the responsibility for adverse side-effects. Her treatment remains NSAIDs in the form of Mobic and Panadol-osteo. She does experience side-effects from the Mobic, which she describes as asthma and now uses two inhalers. Mobic also gives rise to indigestion. She is taking Endep on a regular basis.

23. Overall, her level of pain has increased. She said every joint in her body aches. She has severe headaches and at times requires stronger analgesics. She describes her joints as being tender, as are her muscles and her back pain radiates to both feet. She experiences numbness in both lower limbs, more on the right side than the left. She told the Tribunal that she often falls when she gets out of bed at night, as she is unaware of the position of her feet. She herself has noted her feet are numb when she touches them.

24. She has been told by Dr Leung that the numbness is due to the spondylitis. More recent investigations by Dr Elias have revealed that she has developed an iron deficiency anaemia, low serum vitamin D and calcium levels. She is taking replacement iron, vitamin D and calcium tablets and has been on these for two months. The iron replacement has given rise to constipation and she has had to vary her diet accordingly.

25. Ms Jorj’s dermatological condition was treated from May 2016 with an eczema program and the paronychia with antibiotics and antifungals, neither of which were effective. Ms Jorj says she has been told the dermatological condition is part of or associated with spondylitis. The Tribunal asked if the physiotherapy had been of any benefit and she said she had had none and was still waiting for an appointment having been on the waiting list for more than one year.

26. The Royal Melbourne Hospital records have been summarised under the BACKGROUND TO THE APPLICATION, as have (the general practitioner) Dr Elias’s notes. Dr Elias’s notes confirm the development of major family conflict relating to her blind elderly father‑in‑law who came to live in her family home, having been transferred there by his other son who was his formal carer. Due to her ill-health Ms Jorj was unable to cope with these changes in the household. Her husband had left the home on 18 June 2017 and he was not providing financial support. Ms Jorj had obtained money from Centrelink and the Salvation Army were assisting her, as was her church, both providing food parcels. Ms Jorj has taken out an Intervention Order against her brother-in-law and this will be in effect for two years.

27. Ms Jorj’s current family situation is not known to the Tribunal, although the husband attended and cared for the children during the hearing. He did make some comments via the interpreter in relation to the decision of the AAT Tier 1. It became clear from his comments that he was totally unaware of the existence of any laws of the Australian Government and the requirements for social security support.

28. Dr Elias’s notes of 22 September 2017 record that Ms Jorj had attended the Royal Melbourne Hospital rheumatology clinic the day before. She had been reviewed by a specialist who advised against the use of a biological agent, as she suffered from frequent respiratory tract infections (most of which were cross infections from her children) and, as the biological agent used could affect her immune system, there was a high risk associated with its use given this frequency of respiratory infections. She had been advised to stay on Panadol and Mobic.

29. Dr Elias records that Ms Jorj had undergone testing for latent and past tuberculous infection on 28 February 2013. These tests were negative. To the Tribunal’s knowledge such testing is required before an individual embarks on monoclonal antibody therapy.

    Letter To Whom It May Concern from Dr Chatfield, consultant rheumatologist

30. On completion of her evidence on 1 February 2018, Ms Jorj produced a letter authored by Dr Chatfield in mid-December 2017. This stated that she was suffering from ankylosing spondylitis and fibromyalgia, both of which were chronic and incurable conditions. It was further stated that treatment with biologicals was not appropriate in her case. Dr Chatfield did not address her respiratory symptoms, her level of incapacity or ability to perform the activities of daily living and did not assign an impairment rating.

    Administrative Appeal Tribunal, Social Services and Child Support Division

31. On 19 February 2017 the AAT Tier 1 affirmed the decision of the ARO rejecting Ms Jorj’s application for the DSP. The Tribunal found that her chronic pain at multiple sites was fully diagnosed but not fully treated and stabilised, as the treatment had been stopped due to pregnancy in August 2016. As a result an impairment rating under the Impairment Tables could not be assigned. The medical evidence before the AAT Tier 1 hearing was limited to the treating doctor’s report and two or three reports from the Royal Melbourne Hospital rheumatology clinic. The residency requirements were not considered as Ms Jorj did not satisfy s 94(1)(b) of the Act.

    Job Capacity Assessment (JCA)

32. The JCA was performed by an occupational therapist on 5 July 2016. The conditions of ankylosing spondylitis and what was referred to as eczema were considered to be fully diagnosed but not fully treated and stabilised and therefore did not attract an impairment rating. It was considered that Ms Jorj had a baseline capacity of 15 to 22 hours per week in light, less-skilled work, such as childcare; and with intervention this would be increased from 23 hours to 29 hours within two years.

    RELEVANT LEGISLATION

33. Section 94 of the Act addresses the criteria of the disability support pension and 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   ...

1. In light of Ms Jorj’s residential status, s 94(1)(e) is also relevant, this states:

   (e)the person either:

   (i)     is an Australian resident at the time when the person first satisfies paragraph (c); or

   (ii)     has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or

   (iii)     is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:

   (A)is not an Australian resident; and

   (B)is a dependent child of an Australian resident;

   and the person becomes an Australian resident while a dependent child of an Australian resident; and ...

   SUBMISSIONS

2. Ms Jorj did not make any submissions and relied on the evidence before the Tribunal.

3. Ms Molan provided a detailed Statement of Facts, Issues and Contentions and relied on the content of this document for her submissions. In summary, it was submitted that Ms Jorj did not have any conditions that were fully diagnosed, treated and stabilised during the qualification period that requirement having been affirmed in the decision in Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922.

4. In addition Ms Jorj had not commenced a program of support in the three years prior to her claim and therefore would not be able to satisfy these requirements.

5. Ms Molan also addressed the requirements of s 94(1)(e) in relation to Australian residency and it was clear that Ms Jorj did not satisfy the 10-year residential requirement as she did not acquire a permanent resident status until 7 August 2008.

6. In her submissions on the medical evidence, Ms Molan did comment on the limited information available at the time the application was lodged and at the time of the September hearing before the Tribunal. The respondent’s Statement of Facts, Issues and Contentions noted the information that Ms Jorj had studied IT at university in Iraq and held a Certificate III in childcare.

   THE TRIBUNAL’S DELIBERATIONS AND DECISION

7. Based on the medical evidence provided to the Tribunal at the time of the application for the DSP, Ms Jorj had long standing chronic back and joint pain, fibromyalgia and contact dermatitis. She therefore satisfied s 94(1)(a) of the Act. Section 94(1)(b) of the Act requires that the conditions be fully diagnosed, treated and stabilised at or during the qualification period. The medical evidence in respect to this period is conflicting.

8. In November 2015 the diagnosis of ankylosing spondylitis was considered definite and some of the reports incorrectly stated that she was HLA-B27 positive and had sacro-iliitis. The report of the Royal Melbourne Hospital rheumatology unit of 7 April 2016 addressed To Whom It May Concern incorrectly stated that she was HLA-B27 positive. A more detailed letter of the same date provided the diagnosis of ankylosing spondylitis with sacro-iliitis seen on plain films in 2013, significant fibromyalgia overlay and contact dermatitis. By June 2016 the diagnosis was said to be fibromyalgia, contact dermatitis and possible ankylosing spondylitis, with an initial report of sacro-iliitis on x-ray in 2013, but that later reassessment of the actual films suggested no abnormalities of note. 

9. On 21 July 2016 the diagnoses listed were:

• Back pain since 2011 - ? ankylosing spondylitis, HLA-B27 negative, S-I Joint x-ray 2013; uncertainty regarding presence or absence of sacro-iliitis

• Fibromyalgia

• Currently 19 weeks pregnant; no planned further pregnancies

1. Reports received and reviewed later, that is outside the qualification period, continued to question confirmation of the diagnosis of the major condition of ankylosing spondylitis; such that it has gone from being considered a definite diagnosis in 2014, based on the misunderstanding that she was HLA-B27 positive, to being described in July 2016 as having no clear diagnosis of ankylosing spondylitis but thinking it was likely.

2. In March 2017 the diagnosis of spondylo-arthropathy (sacro-iliitis or ankylosing spondylosis) was considered a possibility.

3. Ms Jorj’s treatment was initially in accordance with normal protocols. She was commenced on NSAIDs and was to have physiotherapy. While several anti‑inflammatory drugs were trialled, she developed side-effects in all cases and became so distressed by these that the only treatment she has had on an ongoing basis for some years has been Panadol. While physiotherapy was recommended on numerous occasions, she has not received any appropriate physiotherapy, having been placed on waiting lists at the Mercy Hospital and the Royal Melbourne Hospital but not having yet been provided with treatment. Her taking of NSAIDs has been interrupted by pregnancies in 2014 and 2016. Consideration was given to the use of biologics (monoclonal antibodies) which are very effective in symptom control in ankylosing spondylitis.  Initially she resisted such treatment and when she eventually decided to proceed in 2017 it was considered that the treatment was now contra-indicated as the risks of side effects were too high.

4. It is clear from the medical data that her major condition of back pain, joint pain and numbness in the lower limbs was not fully diagnosed, treated and stabilised during the qualification period between May and August 2016 and thus she did not satisfy s 94(1)(b) of the Act. The 2017 MRI of Ms Jorj’s lumbo-sacral spine has shown an L5-S1 disc protrusion that might be impacting on the S1 nerve root. This the radiologist said could not be confirmed because the necessary axial views could not be obtained. This does not exclude the possibility of a nerve root lesion contrary to the report authored by Dr Leung that there was no evidence of nerve root impingement.

5. Given these findings, it is not necessary to consider whether she has an ongoing incapacity for work or that she has undertaken a program of support. Consideration of the possibility of the latter is complicated by the fact that she has five children to care for and has been exempted from various other requirements under the Act on the basis of her care of a large family. It is also unnecessary to formally address her residency qualifications, although it is clear that she did not become a permanent resident until August 2008 and therefore will not reach the required residential qualification until August 2018.

6. The Tribunal acknowledges that there have been difficulties in relation to language barriers as Ms Jorj does not speak or apparently write English. She does not have email facilities except via a secretary who works in her church, and her numerous pregnancies have interfered with both her treatment and any training that she might have undertaken. She may well have misunderstood the advice regarding the use of monoclonal antibodies/biologics such as intravenous Infliximab. (The Tribunal is aware from its own knowledge and reading of the product information of the monoclonal antibody preparations that while the symptoms are well controlled the underlying pathological process is not reversed with such treatment.)

7. Several reports from consultant rheumatologists have been provided to the Department, confirming the diagnosis of ankylosing spondylosis and fibromyalgia. These reports conflict with the actual clinical records and several other consultant rheumatologists’ reports and opinions. On the basis of Ms Jorj’s evidence, it is understood that she has been refused treatment with monoclonal antibody/biological on the basis that the side‑effects or risks associated with that treatment in terms of immunosuppression and a consequent increased risk of infection or malignancy have been considered, in her case, to be unacceptable. If this in fact is the case, her application for the DSP might succeed provided a report to that effect is provided. 

8. Ms Jorj clearly did not satisfy the requirements of s 94(1)(b) of the Act in 2016 at the time of or during the 13 weeks subsequent to the lodgement of her application. The Tribunal has had the benefit of observing Ms Jorj on two occasions five months apart. It was obvious to the Tribunal that she was more incapacitated in terms of freedom of movement, was in pain and had lost weight. She confirmed the loss of weight when asked if this was a correct observation. She has been advised to make a further application for the DSP and obtain a letter of confirmation from Dr Chatfield, rheumatologist, that biologic treatment is no longer considered appropriate because of associated adverse effects.

9. The Tribunal affirms the decision under review.

I certify that the preceding 51 (fifty‑one) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan.

........................................................................

Associate

Dated: 19 February, 2018 

Date of hearing:	1 February 2018
Applicant:	In person
Solicitor for the Respondent:	Ms Jenna Molan - Department of Human Services

APPENDIX

R1 Section 37 documents

R2      Dr Elias, General Practitioner’s Notes (summonsed by the Tribunal)

R3      Royal Melbourne Hospital (summonsed by the Tribunal)