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

[2016] AATA 119

Ristovska and Secretary, Department of Social Services (Social services second review) [2016] AATA 119 (2 March 2016)

Division	GENERAL DIVISION
File Number	2014/4388
Re	Vicki Ristovska
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Miss E A Shanahan, Member
Date	2 March 2016
Place	Melbourne

The Tribunal affirms the decision under review.  Mrs Ristovska does not qualify for the disability support pension. 

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

Miss E A Shanahan, Member

SOCIAL SECURITY – pensions, benefits and allowances – claim for disability support pension – conditions not all fully diagnosed, treated and stabilised – impairment rating less than 20 points – decision affirmed.

Legislation

Social Security Act 1991

Social Security (Administration) Act 1999

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

Social Security (Requirements and Guidelines – Activity Participation for Disability Support Pension) Determination 2011

Cases

Fanning and Secretary, Department of Social Services [2014] AATA 447

REASONS FOR DECISION

Miss E A Shanahan, Member

2 March 2016

1. Mrs Ristovska lodged a claim for disability support pension (DSP) on 13 May 2013.  She had earlier advised Centrelink by telephone of her intention to claim the DSP.  Her treating general practitioner, Dr Karwal provided a supporting medical report, stating that she had been diagnosed with several conditions including; panic disorder, major depressive disorder, cervical disc disease and cervical osteoarthritis and diabetes mellitus. The latter did not impact on her ability to function.

2. A job capacity assessment (JCA) performed on 24 May 2013 by an occupational therapist, allotted 10 points as an impairment rating under the Social Security (Tables for the Assessment of Work Related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) for the panic disorder and a further 10 points for the major depressive disorder. The assessment also determined that Mrs Ristovska’s baseline work capacity was 15 to 22 hours per week rising to 23 to 29 hours per week within two years. In light of this work capacity assessment a Centrelink delegate rejected the claim. Mrs Ristovska was advised of the decision on 20 June 2013.  Mrs Ristovska requested a review of this decision. On 3 March 2014 an authorised review officer (ARO) determined that the rejection of the claim for DSP was correct in that her total impairment rating was 10 points for those conditions which were fully diagnosed, treated and stabilised.  The ARO took into account further medical reports that had been provided. Mrs Ristovska did not qualify for a severe impairment nor had she participated in a program of support as required by the legislation. 

3. The 10 point impairment rating related only to Mrs Ristovska’s psychiatric disorders, her other medical conditions were not considered to be fully diagnosed, treated and stabilised. Mrs Ristovska applied to the then Social Security Appeals Tribunal (SSAT) on 4 June 2014 for a further review of Centrelink’s decision. The matter was initially heard on 11 July 2014 before being adjourned and then reconsidered on 22 July 2014, after the provision of further medical reports. 

4. On 22 July 2014 the SSAT affirmed the decision under review, allotting the impairment rating of 10 points for the psychiatric disorders and agreeing that the other conditions were not fully diagnosed, treated and stabilised.

5. Mrs Ristovska lodged an application for review of the SSAT decision with the Administrative Appeals Tribunal (the AAT) on 22 August 2014. She eventually requested that the issues be determined in the absence of the parties under s 34J of the Administrative Appeals Tribunal Act 1975 as she felt she could not psychologically cope with an appearance before the Tribunal.  The Secretary having consented to the application being dealt with in the absence of the parties, the Tribunal proceeded to review the decision without holding a hearing.

6. The Tribunal has been supplied with documentation pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents) and a supplementary T-document (Exhibit R1), compiled by the Secretary, Department of Social Services (the Secretary). The determination of the matter was delayed as Mrs Ristovska was awaiting a further report from her treating psychiatrist, Dr Akinsola Akinbiyi that was provided after 10 October 2015. (Report dated 10 October 2015, Exhibit A1).

   BACKGROUND TO THE APPLICATION

7. Mrs Ristovska has stated that she has suffered from anxiety and depression since the age of 20.  It is unclear if she received any psychiatric treatment in the early years of her condition.  The Tribunal has been provided with psychiatric opinions dated from 2013 until 2015.  It would appear from various notes that her symptoms have fluctuated depending on the stressors present in her life. 

8. In 2000 Mrs Ristovska, with Centrelink’s assistance, obtained a position as a receptionist in the dental practice of Doutta Galla Community Health Service.  This work included the use of a computer, typing and being positioned behind a desk in such a way that she turned her head to one side more than the other.  Mrs Ristovska ceased work at this health centre in May 2011 and lodged a claim with WorkCover Victoria for compensation for her anxiety and depressive state, which she claimed was due to bullying and harassment in the workplace.  Mrs Ristovska also claimed that her neck and left shoulder pain were work-related and these were also the subject of a WorkCover claim.  It would appear that both the neck and the shoulder pain had improved markedly by February 2012 as a result of physiotherapy, rest and acupuncture; as well as the removal of the precipitating activities of computer work and typing.

9. Mrs Ristovska’s neck and left shoulder pain had been fully investigated by her treating general practitioner Dr Pham and she had been found to have tendinopathy in the left supraspinatus tendon but no tear or bursitis.  An MRI of the right shoulder revealed mild supraspinatus tendinosis with early acromio-clavicular joint osteoarthritis.  CT scanning of her cervical spine revealed severe bilateral C7 foraminal stenosis.  However, in the opinion of Mr John Cunningham, orthopaedic spinal surgeon, her symptoms did not correlate with the finding of possible C7 nerve root compression.  Mr Cunningham had offered her further investigation and treatment but she had declined (ST4). Mrs Ristovska’s general practitioner continued to treat her shoulder and neck symptoms with physiotherapy and simple analgesia. 

10. From the provided reports it can only be concluded that her cervical osteoarthritis and minor shoulder tendinopathy are not fully treated and stabilised.  The records provided do note that, in 2008, Mrs Ristovska was involved in a motor vehicle accident and is said to have suffered a whiplash injury to her cervical spine.  She sought compensation for this through the Transport Accident Commission but was apparently unsuccessful.

    Psychiatric Disorder

11. Mrs Ristovska’s general practitioners have diagnosed her as suffering from anxiety and depression.  These conditions have been present for several decades but were exacerbated by her alleged workplace bullying and harassment and also by several stressors in her personal life.  The identified stressors have been her husband’s back injury in 2009 which resulted in him ceasing all work, her mother’s misdiagnosis and subsequent death from widespread carcinoma, and the legal proceedings in which she was involved in relation to her claimed work injuries. 

12. Dr Pham referred Mrs Ristovska to Dr Antoinette Butler Wilks, psychologist, in April 2012. Mrs Ristovska subsequently had 20 appointments for counselling and cognitive behaviour therapy.  Dr Butler Wilks made a diagnosis of a major depressive disorder and an anxiety disorder with some response to psychological treatment.  However, she expressed the view that given the duration of Mrs Ristovska’s symptomatology further symptom exacerbation was likely. 

13. Mrs Ristovska was seen and assessed by Dr Paul Kornan, psychiatrist, on 5 March 2012 and again on 19 November 2012 in relation to her WorkCover claim for what she perceived to be bullying and harassment.  Dr Kornan had access to a report from the psychiatrist Dr Entwisle who had seen Mrs Ristovska in 2008 and made a diagnosis of an adjustment disorder with anxiety relating to her alleged workplace harassment.  Dr Kornan made a diagnosis of panic disorder with agoraphobia and an adjustment disorder with depressed mood.  He considered her work situation to have been a significant contributing factor to her psychiatric ill-health, although this was superimposed on a long-standing history of psychiatric problems.  In his later report of January 2013, Dr Kornan expressed the view that Mrs Ristovska’s cervical and shoulder pain would impact on her psychiatric disorder to a degree; but there was also the possibility that the persistence of pain was related to her overall psychiatric condition. 

14. Mrs Ristovska was referred to Dr Akinsola Akinbiyi for treatment of her psychiatric disorder in August 2013.  He noted her long standing history of anxiety and depression, her alleged workplace harassment and bullying and her persistent symptoms of worthlessness, guilt, poor concentration, and forgetfulness, irritability with symptoms of tremors, sweatiness, nausea and social isolation.  Dr Akinbiyi made a diagnosis of major depressive disorder, generalised anxiety disorder and Xanax dependence.  He ordered various investigations and commenced weaning her from the medication Cymbalta and onto Zoloft.  Dr Akinbiyi has continued to see Mrs Ristovska at regular intervals and continues to trial new medication given her failure to improve with a variety of anti-depressive medications and her adverse reaction to some of these. He has provided reports to her solicitors, her general practitioner and to this Tribunal. 

15. In Dr Akinbiyi’s report to Mrs Ristovska’s solicitors in February 2014 (ST18) the diagnosis and history were substantially the same as the earlier reports, except that Dr Akinbiyi stated that Mrs Ristovska had been formally diagnosed with an anxiety disorder in late 1983 and in 1985 had been commenced on Xanax by a psychiatrist.  He now considered her to be Xanax dependant.  Over the years her medication had been changed.  In 2005 she was commenced on Effexor and this was changed to Cymbalta in October 2010.  Given her poor response to these medications, Dr Akinbiyi proposed to wean her from Zoloft and increase the dose of Cymbalta, following which Avanza would be added to her medication regime.

16. In his latest report dated 10 October 2015 (Exhibit A1), Dr Akinbiyi advised that Mrs Ristovska had separated from her husband in the previous month and was living with her father and daughter.  Her psychiatric symptoms remained unchanged with a poor response to medication and counselling.  He detailed the changes in medication over the past two years with what he considered to be nil improvement. 

17. A letter from the Secretary asked Dr Akinbiyi to perform an impairment rating if he considered Mrs Ristovska’s condition to be fully treated and stabilised. In response, the doctor said the condition was fully treated and stabilised and attracted an impairment rating of 20 points.  This was apparently based on Mrs Ristovska’s advice that she had difficulty coping with her domestic chores even though she did all the cooking and the shopping and cared for her father.  Dr Akinbiyi concluded that Mrs Ristovska’s prognosis was poor given her lack of response to trials of anti-depressant medication and the development of side-effects.  He declared her unable to work for 15 hours per week or undertake training in the next two years. 

18. The Department of Human Services sought a review of Mrs Ristovska’s psychiatric and neck and shoulder conditions by the Health Professional Advisory Unit.  This was undertaken on 9 January 2015 with the psychiatric disorder being reviewed by Ms J Neale, clinical psychologist, of the Health Professional Advisory Unit (HPAU); and the physical conditions were reviewed by Dr S F Armstrong, medical practitioner. 

19. In reviewing the psychiatric disorder, Ms Neale contacted Dr Butler Wilks, the treating general practitioner, and tried to contact Dr Akinbiyi.  She was provided with all of the reports referred to above, with the exception of the report of October 2015 from Dr Akinbiyi.  Ms Neale agreed with the views and impairment assessment of the SSAT Member Dr A Reddy, who is a consultant psychiatrist, and considered the rating of 10 points under Table 5 of the Impairment Tables to be appropriate. This was contrary to Dr Akinbiyi’s impairment rating as there was no evidence that Mrs Ristovska could not perform all the activities of daily living and her domestic chores with only occasional help. In addition, Dr Kornan and Dr Butler Wilks had thought she would probably be able to return to at least part-time work when they had seen her in 2013.  Ms Neale noted that Dr Akinbiyi’s diagnosis was based on the criteria of the fourth edition of the Diagnostic and Statistical Manual (DSM-IV), which is two editions out of date.

20. Dr Armstrong assessed the physical conditions namely the neck and shoulder condition having confirmed that the Type II diabetes had a minimal functional impact on Mrs Ristovska’s capacity for work.

21. The diagnosis of degenerative changes in the cervical spine with bilateral C7 foraminal narrowing and moderate foraminal stenosis at C5/6 and C4/5 was considered to be fully diagnosed. Dr Armstrong however pointed out that there was little clinical correlation between the radiological findings and Mrs Ristovska’s reported symptoms that were in a C5 nerve root distribution.  Dr Armstrong noted that she was able to perform most of the activities of daily living.  More relevantly, she noted that Mrs Ristovska had been receiving carer’s allowance for her husband since 12 July 2012 and also a carer payment for her terminally ill mother between 15 October 2012 and 25 January 2013.  The carer’s allowance in respect of her husband had been based on a general practitioner’s medical report that her husband required help for eight hours per day and this was provided by Mrs Ristovska. Based on the history and findings, Dr Armstrong concluded that the resulting impairment was mild and attracted a 5 point rating under Table 4 of the Impairment Tables.

22. Mrs Ristovska’s pain and movement limitation in her left shoulder had been reported since 2011 and the ultrasound findings showed supraspinatus tendinopathy but no tears or rotator-cuff damage.  Physiotherapy treatment had been of benefit but further treatment has not been sought despite such treatment being available.  As a result, Dr Armstrong considered that the shoulder condition (singular or plural) had not been fully treated and stabilised and therefore did not attract an impairment rating.

23. In October 2011 Mrs Ristovska was assessed by Dr H Sutcliffe, occupational health physician, at the request of Mrs Ristovska’s lawyers and in relation to her workers’ compensation claims.  Dr Sutcliffe considered both the psychiatric disorder and the cervical and shoulder pain.  Dr Sutcliffe made a diagnosis of aggravation of osteoarthritis of the cervical spine, muscular ligamentous strain injury to the shoulder girdles on both sides and an increased anxiety state associated with the onset of depression as the result of workplace harassment.  The cervical spine and shoulder symptoms were considered to have settled significantly with rest.  Despite the persistence of some depression, Mrs Ristovska was assessed as fit for employment in her previous occupation as a receptionist, provided she could avoid keyboarding. 

    LEGISLATION

24. Section 94 of the Social Security Act 1991 (the Act) outlines the qualifications for DSP stating:

    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 ...

25. The Social Security (Administration) Act 1999 (the Administration Act) confines the period under which the reviewable decision can be altered to a period of 13 weeks in accordance with subclause 4(1) of Schedule 2 of the Act states:

    4Start day—early claim

    (1)If:

    (a)a person (other than a detained person) makes a claim for a relevant social security payment; and

    (b)the person is not, on the day on which the claim is made, qualified for the payment; and

    (c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and

    (d)the person becomes so qualified within that period;

    the claim is taken to be made on the first day on which the person is qualified for the social security payment.  ...

26. Thus, the Tribunal is confined in its review to the period between 13 May 2013 and 12 August 2013.  In relation to a person’s inability to work, the Social Security (Requirements and Guidelines – Activity Participation for Disability Support Pension) Determination 2011 (the2011 Determination) provides that the applicant must have actively participated in a program of support for at least 18 months in the 36 months immediately prior to the lodgement of the claim.  Sections 5(1) and 5(2) of Determination 2011 state:

    5.        Requirements for active participation

    (1)       A person has actively participated in a program of support if:

    (a)the person has:

    (i)     complied with the requirements of the program of support; and

    (ii)     participated in a program of support during the 36 months ending immediately before the relevant date of claim; and

    (b)subsection (2), (3), (4) or (5) is satisfied in relation to the person and the program of support; and

    (c)subsection (6) is satisfied in relation to the person and the program of support.

    (2)This subsection is satisfied in relation to a person and a program of support if the person participated in the program of support for at least 18 months.

    SUBMISSIONS

27. As the Tribunal dealt with this application without holding a hearing formal submissions were not made.  The Secretary’s Statement of Facts and Contentions contended that, based on all of the evidence before the Tribunal, an impairment rating of 10 points under Table 5 for Mrs Ristovska’s panic disorder and major depressive disorder as found by the former SSAT was appropriate and that neither the cervical spine or shoulder conditions were fully diagnosed, treated and stabilised and therefore did not attract an impairment rating. The diabetes had no functional impact on Mrs Ristovska’s capacity for work. As the impairment rating totalled 10 points, the Secretary submitted that Mrs Ristovska did not meet the qualifications required for the DSP.  However, should this Tribunal disagree, Mrs Ristovska had  enrolled  in a program of support, but had left the program after approximately two months; thereby failing to meet the Determination requirements.   

    TRIBUNAL’S DELIBERATIONS

28. The Tribunal determines that Mrs Ristovska satisfies s 94(1)(a) of the Act in that she has fully diagnosed medical conditions of a major depressive disorder and generalised anxiety disorder the diagnoses having been made by her current treating psychiatrist Dr Akinbiyi. In addition Mrs Ristovska has some tendinopathy in both shoulders and evidence of cervical degenerative osteoarthritis.

1. In order to satisfy s 94(1) (b) of the Act, Mrs Ristovska’s medical conditions must attract an impairment rating of 20 points under the Impairment Tables and in order to be classified as a serious disability those 20 points need to arise under a single Impairment Table. If an applicant has a serious disability they are not required to complete a program of support. Dr Akinbiyi has been the treating psychiatrist since 7 August 2013. In that same year Mrs Ristovska was assessed by Dr Paul Kornan and attended Dr Antoinette Butler Wilks. The psychologist and all treating psychiatrists were fully aware of her 30-year history of an anxiety disorder.

2. Dr Kornan had diagnosed a panic disorder and an adjustment disorder with depressed mood, Dr Butler Wilks accepted these diagnoses and Dr Akinbiyi as previously stated made a diagnosis of a major depressive and generalised anxiety disorder.  In the early stages both Doctors Kornan and Butler Wilks considered Mrs Ristovska would, with appropriate treatment, be able to resume part time work in an occupation similar to that previously undertaken for a period of 11 years as a receptionist in a health clinic. 

3. Dr Akinbiyi is the only treating psychiatrist or psychologist who has been asked to provide an impairment rating using the Impairment Tables.  He provided an impairment rating of 20 points for the psychiatric disorder in July 2014 and again by letter dated 10 October 2015.  In the second report he declared her psychiatric disorder to be fully treated and stabilised, despite the fact that he was frequently changing her medication.  He appears to have based his assessment on Mrs Ristovska being unable to cope with all of her activities of daily living, to require help when travelling to unfamiliar long distance places and being readily stressed, irritable, frustrated, nervous and tense.  He concluded that she was unable to work for 15 hours per week or undertake any training in the next two years. 

4. This is contrary to Mrs Ristovska’s evidence given to the former SSAT on 22 July 2014. At  that time she said she was able to cope with all the activities of daily living, was caring for her disabled husband eight hours per day and had been receiving a carer’s allowance.  She also cared for her elderly father.  In his report of October 2015, Dr Akinbiyi states that Mrs Ristovska had separated from her husband as of 9 September 2015.  The Tribunal is aware that Mrs Ristovska left Australia on June 10 with her daughter for a three-month holiday in Macedonia, her husband having preceded her. 

5. The Tribunal does not know whether her husband has returned to Australia. Mrs Ristovska was due to return on 7 September 2015. The Tribunal does not know whether there has been a change in Mrs Ristovska’s psychiatric disorder during 2015.  Dr Akinbiyi’s impairment rating of 20 points in 2015 was the same as his impairment rating in July 2014.  The Tribunal notes that the SSAT decision was on 22 July 2014, which corresponds very closely to the opinion provided that same year by Dr Akinbiyi.  This Tribunal agrees with  the job capacity assessment rating of 10 points; and the ratings of Dr Reddy of the SSAT and Ms Neale of HPAU that, based on the evidence from the general practitioners and Mrs Ristovska’s own evidence to the SSAT, she had a moderate functional impairment attracting a 10 point rating.

6. Mrs Ristovska’s neck and shoulder pain, be it the left shoulder or both shoulders, has been investigated by radiological imaging and blood tests, the latter all being normal.  While her cervical spine CT and MRI does show moderate osteoarthritic change and quite severe foraminal narrowing at the C7 nerve root level, her symptomatology does not correspond anatomically with the C7 lesion. She has been seen by appropriate specialists and her shoulder pathology (as demonstrated radiologically) is relatively minor.  She has been offered further treatment in relation to her neck but has refused this offer. 

7. In late 2012 Mrs Ristovska’s general practitioner Dr Pham reported that her neck and shoulder pain had improved significantly following physiotherapy and cessation of the computer typing duties she was performing.  He anticipated that she would be able to return to her pre-injury duties, with some modifications in terms of a reduction of repetitive typing. It is not clear to this Tribunal the exact levels of symptoms relating to her neck and shoulders Mrs Ristovska currently experiences.  Her long term prognosis was certainly regarded as being uncertain according to reports from her then general practitioner, Dr Karwal in mid-2013.  With the exception of physiotherapy, no specific treatment for either the shoulder or the neck conditions has been given and the conditions cannot be accepted as being fully treated and stabilised.  There is no claim that Mrs Ristovska’s diabetes mellitus has any impact on her ability to function. 

8. Based on the medical evidence provided, Mrs Ristovska’s impairment rating during the period under review is 10 points, attributable to her psychiatric disorder alone. Her physical disorders were not fully treated and stabilised during the period under review and as a result she does not satisfy the requirements of s 94(1)(b).

9. In light of the above findings, it is not necessary for the Tribunal to consider whether Mrs Ristovska has a continuing incapacity for work.

10. The Tribunal affirms the decision under review.

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]........................................................................

Administrative Assistant

Dated 2 March 2016

Dateof hearing	29 January 2016
Applicant	In person
Advocate for the Respondent	Julie Zhou - Department of Human Services