Nicole Whittaker and Secretary, Department of Social Services

[2014] AATA 345

[2014] AATA 345  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/3034
Re	Nicole Whittaker
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Miss E A Shanahan, Member
Date	2 June 2014
Place	Melbourne

The Tribunal affirms the decision under review.

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

Miss E A Shanahan, Member

SOCIAL SECURITY – pension benefits and allowances – disability support pension – fibromyalgia – adjustment disorder with depressed mood – not fully treated and stabilised during review period – recent application for disability support pension successful – applicant seeking payment of disability support pension backdated to July 2012 – decision affirmed

Legislation

Social Security Act 1991 section 94
Social Security (Administration) Act 1999 section 13
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

Social Security (Requirements & Guidelines – Active Participation for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Miss E A Shanahan, Member

2 June 2014

1. The applicant, Ms Whittaker, lodged a claim for the disability support pension (DSP) on 27 July 2012 with Centrelink.  Centrelink is the service delivery agency for the Department of Social Services.  A treating doctor’s report which accompanied the DSP claim reported that Ms Whittaker was then suffering from fibromyalgia and an adjustment disorder with depressed mood.  The claim was rejected by a Centrelink delegate on 11 September 2012 on the basis that Ms Whittaker did not attract an impairment rating of 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables). On 28 February 2013 an authorised review officer (ARO) affirmed the Centrelink delegate’s rejection on the basis that Ms Whittaker’s total impairment rating was 10 points under the Impairment Tables and thus she did not satisfy s 94(1)(b) of the Social Security Act 1991 (the Act). 

2. Ms Whittaker applied to the Social Security Appeals Tribunal (the SSAT) on 23 April 2013 for review of the ARO’s decision.  The SSAT found that Ms Whittaker’s medical conditions were not fully diagnosed, treated and stabilised within the 13-week period of lodging her claim and therefore did not attract an impairment rating.

3. Ms Whittaker lodged an application for a review of the SSAT’s decision by this Tribunal on 25 June 2013. Following the SSAT’s decision, Ms Whittaker states that she lodged a further DSP claim and Centrelink accepted this claim.  She has been receiving DSP payments for some months.  However, she considers that she qualified for the DSP at the time of her application on 27 July 2012 and seeks back-payment of the pension to that date.

4. At the hearing Ms Whittaker was self-represented with the assistance of her mother, Ms Kate Whittaker. Ms Julia Randall-Smith, a solicitor with the Australian Government Solicitor, appeared for the Secretary, Department of Social Services (the Secretary). The Tribunal took into evidence the documents filed in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (T-documents) and assigned them the exhibit number R1. 

5. Ms Whittaker tendered the following exhibits:

   ·Report of Dr Lionel Schachna dated 11 October 2012 – Exhibit A1

   ·Report of Dr Peter Millington dated 26 November 2013 – Exhibit A2

   ·Report of Dr David Bird dated 26 July 2012 – Exhibit A3

   ·Report of Sadie Lamplough, physiotherapist dated 14 November 2012 – Exhibit A4

   ·Report of Nina Mulvey, physiotherapist dated 22 April 2013 – Exhibit A5

   BACKGROUND TO THE APPLICATION

6. Ms Whittaker is an architect.  She completed a Bachelor of Science in architecture and a degree in architecture from Newcastle University.  During her course she was unwell for three years, following what she describes as an assault.  In retrospect, she believes this was in fact an episode of fibromyalgia.  She worked full time for a period of approximately three years, in architectural design, program management and program supervision.

7. Ms Whittaker has not worked since late 2010 due to her symptoms of fibromyalgia.  Ms Whittaker is convinced that her symptoms, which commenced in November 2010, were due to the implantation of a long term contraceptive, Implanon, on 24 November 2010.  Initially, no diagnosis was made. But following her relocation to Melbourne Ms Whittaker commenced seeing Dr Bird who made a diagnosis of fibromyalgia and major depression and has treated her since 16 September 2012.  

8. Despite undergoing cognitive therapy, remedial massage, hydrotherapy, attendance on a physiotherapist and regular gymnasium work, Ms Whittaker’s symptoms have persisted.  On 11 October 2012 Dr Lionel Schachna, consultant rheumatologist, confirmed the diagnosis of fibromyalgia.

9. Dr Bird’s diagnosis of depression was confirmed by Dr Millington in his report of 26 November 2013.  Dr Millington diagnosed a major depressive disorder with marked somatization.  Dr Millington had changed Ms Whittaker’s medication following the first consultation on 18 October 2012. 

10. Ms Whittaker has continued with antidepressant therapy, regular attendance at a physiotherapy group, a gymnasium program and her psychiatrist; and she receives counselling once a month.  While there has been some improvement in her symptomatology, she is regarded as not yet being fit enough to resume any full time work.

11. Ms Whittaker has undergone at least two job capacity assessments (JCA), the first in August 2011 and the second in July 2012.  In the assessment of 15 August 2011, the only condition the assessor considered was a psychiatric disorder, although the symptoms described are those of depression and some which may have been attributable to fibromyalgia.  As the condition was considered temporary, an impairment rating was not attracted.  The assessment of 27 July 2012 also considered her depression to be a temporary phenomenon as psychiatric intervention and the prescribing of antidepressants had only occurred some three months previously.  No reference was made to fibromyalgia.

    EVIDENCE BEFORE THE TRIBUNAL

12. Ms Whittaker gave evidence to the Tribunal and this is summarised where relevant under BACKGROUND TO THE APPLICATION. 

    DOCUMENTARY EVIDENCE

    Dr David Bird

13. Dr Bird completed the treating doctor’s report accompanying Ms Whittaker’s claim for DSP.  He had been her treating general practitioner from 16 July 2012.  In his report he diagnosed two conditions which had the greatest impact on her capacity for work, namely fibromyalgia (then of nearly two years’ duration) and an adjustment disorder with depressed mood (of the same duration).  The diagnosis of an adjustment disorder had been made originally by a Dr Saxena, a psychiatric registrar at the Alfred Hospital.  Dr Saxena provided a report dated 5 August 2012 diagnosing an adjustment disorder and noting that Ms Whittaker had a vulnerable personality.  Dr Saxena thought there had been no beneficial response to antidepressant therapy commenced 18 months previously by a psychiatrist in Canberra and recommended (to the then referring general practitioner, Dr Fraser) that Ms Whittaker consult a psychiatrist in private for long term dynamic psychotherapy.

    Dr Lionel Schachna

14. As previously stated, Dr Schachna confirmed the diagnosis of fibromyalgia in his report on 11 October 2012.  He stated that 50 per cent of patients with fibromyalgia who present with chronic pain and fatigue will report an improvement in their symptoms after two years and two-thirds of patients are capable of working full time with fibromyalgia, only modestly impacting on their lives.  He also outlined the current therapy for fibromyalgia which consists of tricyclic antidepressants, and more recently the use of Gabapentin (Neurontin) as well as Efexor and SRIs. 

15. Dr Schachna supported Ms Whittaker’s attendance at the gymnasium and her performance of hydrotherapy once a week.  As there was a positive family history of lupus erythematosus, Dr Schachna performed a panel of lupus investigations all of which were negative.

    Dr Peter Millington, Consultant Psychiatrist

16. Dr Millington first saw Ms Whittaker on 18 October 2012. His first report is dated 26 November 2013. He outlined Ms Whittaker’s symptoms as being difficulty getting to sleep, frequent waking, night sweats, nightmares, poor appetite, decreased weight, poor concentration, poor motivation, sad and depressed mood and suicidal thoughts.  He noted Ms Whittaker was convinced that her illness was due to the Implanon implant and that this had caused an allergic response to nickel.  At the time she was taking Cymbalta 60 milligrams and Valdoxan 25 milligrams per day. 

17. Dr Millington made a diagnosis of a major depressive disorder with marked somatization and changed her antidepressant therapy to the SNRI Efexor gradually increasing the dose to 300 milligrams.  This resulted in an improvement of concentration, appetite and motivation.  However, that dose had a negative effect on her sleep and was subsequently reduced to 225 milligrams daily.  Initially, Dr Millington was hopeful of improvement, but after 12 months of treatment he considered that Ms Whittaker was probably as well as she was going to ever be; and as of 26 November 2013, he did not think that her condition would significantly improve in the next two years. 

    Physiotherapy Reports

18. Two of Ms Whittaker’s treating physiotherapists provided reports.   Ms Lamplough’s report dated 14 November 2012 confirmed that Ms Whittaker had attended regularly at the gymnasium and hydrotherapy groups since June 2012. She reported that Ms Whittaker had responded well to regular exercise in that it assisted her ability to manage her pain.  Ms Mulvey, a physiotherapist of the same community health group as Ms Lamplough, provided a report dated 22 April 2013 attesting to considerable improvement in Ms Whittaker’s health over the preceding nine months and that her condition appeared to have stabilised and she was managing her symptoms more effectively.

    RELEVANT LEGISLATION

19. Section 94 of the Act provides the criteria for qualification for the DSP stating:

    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  ...

20. Section 94(2) provides the definition of a continuing inability to work   as follows:

    (2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

    (aa)in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B)—the person has actively participated in a program of support within the meaning of subsection (3C); and

    (a)in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and

    (b)in all cases—either:

    (i)     the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

    (ii)     if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

    …

    [Emphasis in original]

21. Since the introduction of the Social Security (Requirements & Guidelines – Active Participation for Disability Support Pension) Determination 2011 on 3 September 2011, persons who qualify for the DSP in terms of an impairment rating are required to participate in a program of support during 18 months of the 36 months prior to their claim for DSP.

    SUBMISSIONS

22. Ms Whittaker contends that at the time of the SSAT’s hearing her medical conditions of adjustment disorder with depressed mood and fibromyalgia were fully diagnosed, treated and stabilised and both conditions were permanent.  At the primary decision-making level, the report of Dr Schachna had not been available.  Similarly, Dr Millington’s report was not available. At the SSAT’s hearing, Ms Whittaker had provided a copy of Dr Saxena’s report.  Ms Whittaker relied on Dr Bird’s diagnoses and reports, which were later substantiated by Doctors Schachna and Millington.

    THE RESPONDENT

23. Ms Randall-Smith had provided a detailed and extensive Statement of Facts and Contentions addressing the issue before the Tribunal.  At the hearing she spoke to the Statement. Ms Randall-Smith submitted that at the time of the JCA report dated 28 August 2012, Ms Whittaker’s diagnosis of fibromyalgia was presumptive in that it had not been confirmed by an appropriately qualified specialist.  Furthermore, the psychiatric condition of adjustment disorder with depressed mood had been diagnosed by Dr Saxena, a trainee in psychiatry, and the recommended treatment had been attendance at a private psychiatrist and psychologist. 

24. Ms Randall-Smith maintained that Ms Whittaker did not see a treating psychiatrist until 18 October 2012, when she first consulted Dr Millington. Subsequently, Ms Whittaker’s adjustment disorder with depressed mood was determined to be moderate, attracting an impairment rating of 10 points under Table 5 of the Impairment Tables. These findings formed the basis of Centrelink’s rejection of the claim for DSP.

25. Ms Randall-Smith submitted that although Dr Schachna had confirmed the diagnosis of fibromyalgia on 11 October 2012, which was within the review period, he had recommended various treatments and investigations to exclude lupus erythematosus. When these investigations were completed, Dr Schachna provided a further report on 7 December 2012 which recommended continuing the current treatment with reinforcement of the strategies, in the expectation that Ms Whittaker’s condition would persist for more than 24 months but would fluctuate in its severity. 

26. Ms Randall-Smith noted that the ARO, in his decision of 28 February 2013, had affirmed the original decision on the basis that Ms Whittaker’s medical conditions attracted only 10 impairment points.  The SSAT determined that neither condition was fully diagnosed, treated and stabilised.

    THE TRIBUNAL’S DELIBERATIONS

27. As previously stated, Ms Whittaker is now receiving the DSP and rent assistance.  She argues there has been no change in her medical status since Centrelink’s original rejection, except for an improvement in her coping abilities with respect to her fibromyalgia and her major depressive disorder.  Ms Whittaker relies on the reports of Dr Schachna and Dr Millington in support of her submissions.

28. Dr Schachna certainly confirmed the diagnosis of fibromyalgia on 11 October 2012.  Dr Schachna addressed the topic of fibromyalgia at some length and in general terms. He noted that 50 per cent of patients with chronic pain and fatigue will improve after two years and two-thirds of patients can continue to work full time.  At the stage when Dr Schachna saw Ms Whittaker she was nearly two years from the date of onset of her first symptoms, although it is not clear whether those symptoms were ascribed to fibromyalgia or to depression. 

29. Dr Schachna discussed the treatment of Ms Whittaker’s conditions at length and suggested a variety of antidepressants and chronic pain type medications that could be trialled.  He also recommended that Ms Whittaker increase her level of hydrotherapy. 

30. Dr Millington first saw Ms Whittaker on 18 October 2012, one week after she saw Dr Schachna.  Dr Millington confirmed the diagnosis of depression, although he favoured a major depressive disorder with marked somatization, rather than an adjustment disorder.  Dr Millington changed Ms Whittaker’s treatment from the anti-depressants Cymbalta and Valdoxan to SNRI Efexor and gradually increased the dose of that drug over a period of some weeks to months.  After 12 months, in late 2013, he reported that despite a decrease in her depressive symptoms she had not improved significantly and was unlikely to do so in the next two years.

31. Hence, on the medical evidence neither Dr Schachna nor Dr Millington considered Ms Whittaker to be fully treated and stabilised as of October 2012.  Both doctors recommended changes to her treatment.  Only Dr Millington declared that she will not improve further as of 26 November 2013. 

32. In accordance with the Social Security (Administration) Act 1999 the period under review is 13 weeks from the lodgement of the claim for DSP.  Ms Whittaker’s claim form is dated 27 July 2012 and was received by Centrelink on 30 July 2012.  Therefore, the period under review or the relevant period is from 30 July 2012 to 31 October 2012. 

33. The Respondent has accepted that during that period Ms Whittaker had been diagnosed with an adjustment disorder with depressed mood and fibromyalgia and therefore satisfied the requirements of s 94(1)(a) of the Act. Based on the medical evidence of Dr Schachna and Dr Millington, though permanent, neither the adjustment disorder with depressed mood nor the fibromyalgia was fully treated and stabilised within the period of review. As a result, Ms Whittaker did not meet the requirements of s 94(1)(b) during the review period and an impairment rating could not be assigned. As s 94(1)(b) of the Act was not satisfied it is unnecessary for the Tribunal to consider whether there was a continuing inability for work.

34. The Tribunal affirms the decision under review. 

I certify that the preceding 34 (thirty -four) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member

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

Associate

Dated 2 June 2014

Date(s) of hearing	17 April 2014
Applicant	In person
Solicitors for the Respondent	Julia Randall-Smith, Australian Government Solicitor