Niksic and Secretary, Department of Employment and Workplace Relations
[2007] AATA 1583
•29 June 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR PRELIMINARY DECISION [2007] AATA1583
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V 200601153
GENERAL ADMINISTRATIVE DIVISION ) Re IVANKA NIKSIC Applicant
And
SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
Preliminary DECISION
Tribunal Miss E.A. Shanahan, Member Date29 June 2007
PlaceMelbourne
Decision The Tribunal remits this matter to the Respondent to re-assess the medical evidence and, if appropriate, obtain further medical opinions. This is in accordance with s 42D of the Administrative Appeal Tribunal Act 1975. (sgd) E.A. Shanahan
Member
PRACTICE AND PROCEDURE – social security – disability support pension – failure to meet 20 impairment rating points – varying assessments between 10 and 20 points – are the conditions permanent, treated and stable – back condition duration of 13 years – shoulder condition duration 7 years – psychiatric condition duration of 25 years – no psychiatric assessment for 25 years – medication at above-recommended dosage – matter remitted for re‑assessment
Social Security Act 1999 s 94(1), s 94(2), s 94(3)
REASONS FOR PRELIMINARY DECISION
29 June 2007 Miss E.A. Shanahan, Member 1. Mrs Niksic lodged a claim for a disability support pension with Centrelink on 1 May 2006. Centrelink is the service delivery agency for the Secretary to the Department of Employment and Workplace Relations (the Respondent). On 21 June 2006 a delegate of Centrelink rejected the claim, having assessed Mrs Niksic’s disability at zero points under the Tables for the Assessment of Work‑Related Impairment for Disability Support Pension (the Impairment Tables) in Schedule 1B of the Social Security Act 1991. On 13 September 2006 an Authorised Review Officer (ARO) re-assessed her disability at 15 impairment points, but affirmed the decision to reject the claim (T22, p86).
2. Mrs Niksic represented herself at the hearing, but was assisted by an interpreter in the Croatian language, her daughter Kristina and her husband. The Respondent was represented by Ms A. Bramley, an advocate from Centrelink.
BACKGROUND TO THE APPLICATION
3. Mrs Niksic was retrenched by the Ford Motor Company on 28 April 2006 after 26 years of service as a process worker. Her claim form cited the conditions of right shoulder injury and back injury. Upon receipt of a treating doctor’s report from Dr L. Morris, the condition termed psychotic depression was added to Mrs Niksic’s list of illnesses/disabilities and injuries. Dr Morris had assessed Mrs Niksic as unemployable, based on her psychotic depression which was unlikely to improve for more than 24 months. Dr J. Lane of Health Services Australia (HSA) assessed the back and shoulder conditions as not fully documented and the depression as mild and not affecting Mrs Niksic’s work capacity. A further report, dated 19 June 2006, from Dr Morris addressed Mrs Niksic’s back and shoulder injuries (T10). The back pain had followed a work injury in 1992 and had resulted in her work being reduced to light duties since 2002. X-rays revealed degenerative changes. The shoulder pain which was bilateral, but far more prominent in the right side than the left, had also been present since July 2000. The shoulder symptoms contributed to her being placed on light duties for the last 3 years.
4. Between the rejection of her claim and the review by the ARO, Ms N. Pluim, a psychologist, performed a job capacity assessment on Mrs Niksic (T18, p70). Ms Pluim assessed Mrs Niksic’s shoulder and upper arm disorder as permanent, attracting 10 points under the Impairment Tables; she also assessed Mrs Niksic’s low back pain as permanent, attracting a rating of 10 points. Ms Pluim assessed Mrs Niksic’s psychological/psychiatric condition as temporary in nature. Ms Pluim did however advise further assessment of Mrs Niksic’s psychiatric status and recommended referral to a Migrant Resource Centre to enable adequate psychological intervention. Provided psychological intervention was available, Ms Pluim assessed Mrs Niksic as fit for 30 plus hours of work per week; or without such intervention for 15 to 22 hours of work per week.
5. Dr A. Cavka provided a report dated 25 August 2006 (T21). The report stated that he had treated Mrs Niksic since 1996 for severe hand tremors; for which he had prescribed a beta-blocker known as Inderal. In light of the reports from Ms Pluim and Dr Cavka the ARO re-assessed Mrs Niksic’s impairment at 10 points for her right shoulder, 5 points for her back pain and zero points for her psychological status, a total of 15 points under the Impairment Tables; and otherwise affirmed the decision under review.
6. Mrs Niksic sought review of the decision by the Social Security Appeals Tribunal (SSAT) and the matter was heard on 10 November 2006 (T2, p3‑15). The SSAT assigned zero points under the Impairment Tables for Mrs Niksic’s psychiatric condition; 10 points for her back injury and zero points for her shoulder injury. The shoulder condition was considered temporary and not fully investigated. At the hearing before the SSAT Mrs Niksic denied having had any tests on or treatment for her shoulder injuries other than Voltaren cream; although Dr Morris’ report of 19 June 2006 contains the result of her shoulder x-rays. The SSAT preferred the opinion of Dr Lane (T9, p37‑52), that Mrs Niksic suffered mild depression and low self-confidence attracting no impairment rating. The SSAT also found that the hand tremors reported by Dr Cavka (25 August 2006, T21) had not been investigated, treated or stabilised. The SSAT did however raise the possibility that this symptom could be a side-effect of Melleril medication. On 27 October 2006 Dr Morris had forwarded a Health Summary Sheet (T28, p 99) summarising Mrs Niksic’s conditions and medication and again (T29, p100) stressing the severity of her psychotic depression and the effect of medication on her inability to work.
7. At the commencement of the hearing the Tribunal informed both parties that it was concerned about the medical evidence and its interpretation. In particular, the Tribunal was concerned about the exact diagnosis of Mrs Niksic’s psychiatric condition; as the medication Melleril, which she has taken for 25 years, is a restricted benefit medication, only indicated for the treatment of schizophrenia. The Tribunal noted that Melleril was removed from the Pharmaceutical Benefits Scheme in late 2005 because of cardiac side-effects. Melleril also has a high side-effect incident of tremors or dyskinesia.
8. The dosage of the anxiolytic drug Lexotan (Bromazepam) that Mrs Niksic was taking was, according to the authoritative publication MIMS, in the range recommended for severe anxiety in hospitalised patients. Mrs Niksic takes 24 milligrams daily in divided doses. Likewise, according to MIMS, Surmontil (Trimipramine) is indicated for major depression; and Mrs Niksic’s dosage of 300 milligrams daily is recommended for short-term, in-hospital treatment. Finally, the Tribunal noted that the Inderal prescribed by Dr Cavka, in an effort to control Mrs Niksic’s hand tremors, reportedly interacts adversely with Melleril.
9. Given these medication dosages, the Tribunal inferred that the underlining psychiatric condition was greater than a mild depression and loss of self confidence, as diagnosed by Dr Lane.
10. The Tribunal was also provided with clinical notes from the Ford Motor Company Medical Clinic, which contain numerous entries from the employer’s nurse and doctor. The doctor prescribed multiple courses of physiotherapy, Voltaren and Celebrex tablets and Voltaren cream and placed Mrs Niksic on light duties. These notes confirm Mrs Niksic’s attendance for physiotherapy since 2000. Similarly, Mrs Niksic’s back pain has been documented in these medical records since 1992 and has been treated. X-rays have also been performed. Mrs Niksic’s daughter Kristina had not provided these medical records to the SSAT but sent them to the Administrative Appeals Tribunal on 2 April 2007.
11. Kristina Niksic also reported paranoid behaviour by her mother over many years and a second-hand knowledge of interpersonal disputes that occurred while Mrs Niksic was employed by the Ford Motor Company.
12. The Tribunal asked Mrs Niksic when her psychiatric condition was first diagnosed. She said she had been hospitalised in Geelong for one week 25 years ago. During her hospitalisation she had injections every second day and underwent repeated electro-convulsive therapy. Following her discharge she was reviewed by a psychiatrist on one occasion. Mr Niksic said they had not been provided with a diagnosis. Neither Mr or Mrs Niksic have a good command of the English language.
13. It was relatively clear, on the papers alone, that Mrs Niksic does not recall past treatment or investigations. Hence her evidence to the SSAT. Her daughter, Kristina, confirmed that her mother’s memory was very poor. The Tribunal was not surprised by Mrs Niksic’s lack of recall, given the high dosages of her psychogenic medication.
14. Ms Pluim did perform Mrs Niksic’s job capacity assessment and assigned 20 points to her disabilities under the Impairment Tables with zero points for her psychological condition; and recommended psychological counselling and intervention via the Migrant Review Centre (T18, dated 1 August 2006). Mrs Niksic is to undergo a mental capacity assessment on 11 July 2007, having waited many months for such an appointment.
15. Given the content of the medical and psychological reports before the Tribunal, the Tribunal discussed with both parties the need for a re-assessment of the existing reports, consideration of the results of the mental capacity assessment to be performed on 11 July, and possibly further specialist psychiatric opinion. Mrs Niksic has not given a full and detailed history to her treating doctors, Centrelink or the SSAT, as her memory is obviously deficient.
16. With the agreement of both parties, the Tribunal remits the matter to the Respondent for re-assessment of the medical reports and, if appropriate, further psychiatric opinion.
I certify that the sixteen [16] preceding paragraphs are a true copy of the reasons for the preliminary decision herein of
Miss E.A. Shanahan, Member
(sgd) Olympia Sarrinikolaou
ClerkDate of Hearing: 29 June 2007
Date of Decision: 29 June 2007
Advocate for the Applicant: Self-represented
Advocate for the Respondent: Mr A. Bramley, Centrelink Legal Services Branch
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