Samantha Parker and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2009] AATA 423

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 423

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/3818

GENERAL ADMINISTRATIVE DIVISION		)
Re		Samantha Parker

Applicant

And Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

Respondent

DECISION

Tribunal Mr G. L. McDonald, Deputy President

Date12 June 2009

PlaceMelbourne

Decision The decision under review is affirmed.

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

Deputy President

CATCHWORDS – SOCIAL SECURITY ACT – disability support pension – applicant suffers from chronic pain and psychiatric conditions – whether the applicant’s conditions were fully documented and diagnosed conditions which had been investigated, treated and stabilised – decision under review affirmed

Administrative Appeals Tribunal Act 1975 s 37

Social Security Act 1991 s 94, Schedule 1B

Trajkovski and Secretary Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 1097

REASONS FOR DECISION

12 June 2009 Mr G. L. McDonald, Deputy President    

1.      The applicant is applying for a review of a decision, affirmed by the Social Security Appeals Tribunal (SSAT), refusing her a disability support pension (DSP).

2. At the hearing the applicant was self-represented and aided by her husband, Mr Cory Parker. The respondent was represented by Mr David Perdon from the Centrelink Legal Services Branch. The Tribunal had before it the documents filed for the purposes of satisfying s 37 of the Administrative Appeals Tribunal Act 1975 (T documents).  Both Mr and Mrs Parker gave oral evidence to the Tribunal.

3.      At the hearing, in January this year, the Tribunal expressed some concern as to the applicant’s circumstances, and with the cooperation of the respondent, requested that a specialist neurologist’s report be obtained.  The Tribunal settled a number of questions to be asked of the neurologist after a draft had been forwarded by the respondent.  A report from Dr Leslie Sedal dated 15 May 2009 was consequently provided.  It is apparent from the report that the applicant may continue to experience difficulties with her current application.  Copies of Dr Sedal’s report were sent to the parties and a telephone directions hearing was subsequently held.  At the directions hearing it was decided that the Tribunal would determine the case on the material it had before it (that is, without seeking further medical evidence).  It was also pointed out to the applicant that she may need to consider lodging a fresh application with Centrelink as well as continue with treatment which had been earlier advised.  Her readily understandable difficulty is in meeting the costs of that treatment and in obtaining any further medical reports which may then be necessary to assist in the establishment of her case.  The very thing which would support her in obtaining the necessary information, and more importantly obtaining treatment, is, absent ready access to the public health system or independent means to pay, the grant of a DSP pension.

4.      The applicant’s circumstances are indeed unfortunate.  On 16 October 2006 she had an Implanon device inserted in her left arm above the elbow.  The device was designed for the slow release of a contraceptive.  That evening the applicant said that she suffered fever and sweating[1] and experienced localised pain to the left arm, shoulder and left leg.  The symptoms led her to seek assistance at the emergency department of the Liverpool Hospital in New South Wales on 21 October 2006.  On 22 October the device was removed.  Upon removal the applicant observed it to be “bent and broken.”[2]  All of the contents of the device were apparently released into her system in a 24 hour period.

[1] T documents, T34, page 173.

[2] T documents, T34, page 173.

5.      While there was some immediate improvement in the pain level following the removal of the device, the pain in her left arm and leg has continued.

6.      The applicant has been examined by a number of specialist practitioners.

7.      Professor Robin Higgs is an orthopaedic specialist.  His report, dated 14 January 2007,[3] was prepared for the applicant’s solicitors and was prepared for the purpose of examining whether there was negligence involved in the administration of the device.  The Professor determined that there was no evidence of negligence by the general medical practitioner who inserted the device but left open other aspects of a negligence claim.  The Professor took a detailed history from the applicant and examined a number of investigative procedures including a doppler investigation, x‑rays and ultrasound examinations focusing on the left side limbs, a nerve conduction study and a nuclear bone scan.  He also examined reports from a number of the practitioners who had been treating the applicant since October 2006.  One of those practitioners was the general medical practitioner who inserted the device.  The Professor also examined the likely results arising from the sudden emission of the contents of the device.  Relevantly, the Professor concluded that the applicant:

(a)  on the balance of probabilities suffered chronic left arm and left leg pain; and

(b)  appeared to suffer a multifactorial psychiatric disorder.

[3] T documents, T34, pages 170-182.

8.      In respect of the latter condition, he recommended examination by a psychiatrist as well as further examinations by an immunologist, an endocrinologist and re-examination by a rheumatologist.  Professor Higgs thought that in as far as her physical condition was concerned the treatment she was then receiving (being hydrotherapy, antidepressants and pain relief medication as well a course of psychology sessions) was appropriate.[4]

[4] T documents, T34, page 180.

9.      A report from Dr Robert Morton, an obstetrician/gynaecologist, dated 5 July 2007[5] differed in some respects from that of Professor Higgs in that the former could find no reason for the applicant’s left leg pain.  He also concluded that the device had not been inserted at a standard which would pass peer review and that the applicant had not been treated adequately after the implant was extracted.

[5] T documents, T30, pages 118-122.

10.     A report from Ms Michele Jackson, a clinical psychologist, dated 23 June 2007[6] to the respondent notifies that the applicant had attended four sessions and that she would benefit from another “at least 16 sessions.  Ten treatment sessions will be for Pain Management, and 6 treatment sessions will focus on alleviating her Depression, Anxiety and Stress symptoms.”[7]  It appears that those sessions were to occur over an anticipated 12 month period.  Ms Jackson opined that the latter three conditions had not stabilised.  Shortly after Ms Jackson’s assessment and after completing four of the recommended sessions the applicant and her family moved from Sydney to Melbourne where they had access to greater family support.  No further psychological treatment was undertaken after the applicant moved to Melbourne.

[6] T documents, T19, pages 69-72.

[7] T documents, T19, page 71.

11.     Dr Andrew McClure, a consultant psychiatrist, reported to the applicant’s solicitors on 28 November 2007.[8]  He provided an opinion, subject to independent corroboration of her history being obtained, that it was likely that she suffered major depression and panic disorder with both conditions in partial remission following treatment.[9]  He felt that the applicant would benefit from further treatment from a clinical psychologist or psychiatrist, in particular he referred to a further 8‑10 sessions of cognitive behavioural therapy and 18 months of medication.  Dr McClure could not comment on the applicant’s physical symptoms, other than to say that her longer term psychiatric recovery would depend to a large extent on the recovery achieved in respect of her physical condition.  The Tribunal is uncertain of what Dr McClure meant by his reference to independent corroboration given the extensive reports and clinical notes with which he had been provided.

[8] T documents, T32, pages 146-153.

[9] T documents, T32, pages 151-152.

12.     A report from an occupational therapist, Ms Trudie Warner, indicted several limitations on the applicant’s ability to carry out daily living tasks.[10]

[10] T documents, T31, pages 123-145.

13.     On 6 October 2008 the applicant was seen, at the respondent’s request, by Dr Louise Van Geyzel, an occupational physician.  The doctor recorded a detailed history and reviewed the many reports concerning the applicant’s conditions.  She also referred her to a psychiatrist, Dr Peter Smith, for an updated assessment and report.  Dr Van Geyzel noted Dr Smith’s diagnosis of major depressive disorder, co‑morbid anxiety in the form of mild to moderate panic attacks, variable agoraphobia and avoidance phenomena along with post traumatic anxiety.

14.      Dr Van Geyzel opined that her condition was best described as chronic pain syndrome extending to include left shoulder bursitis and left carpal tunnel syndrome.  She also noted that there was “…a mutual reciprocal relationship between chronic pain on the one hand and her affective state on the other.”[11]  Dr Van Geyzel assessed the applicant’s psychiatric condition as temporary and that it remained unstabilised and had not been fully treated.  She noted in particular that further psychological treatment would be likely to benefit her as had been the case when such treatment was administered in 2007.  Dr Smith, in his report dated 15 October 2008, opined that the applicant was incapable of working 15 hours a week and Dr Van Geyzel noted that the applicant would be unable to participate in any retraining program as the result of the pain she suffered.  Further assistance, including for her physical condition, would result from ongoing treatment from a rehabilitation consultant or pain management specialist.  Dr Van Geyzel recommended that the applicant be reassessed in six months time.

[11] Report of Dr Louise Van Geyzel, dated 30 October 2008, page 12.

15.     Dr Sedal, a neurologist, in his report dated 15 May 2009, after viewing the earlier medical reports, diagnosed the applicant as having Complex Regional Pain Syndrome Type II.  Dr Sedal also noted some median nerve damage which he opined was probably unrelated to the implant.  Dr Sedal opined that her condition would not have stabilised by 10 July 2007 or within 13 weeks thereof.  Dr Sedal reinforced the desirability of the applicant receiving assistance from a specialist pain clinician.  Unlike Dr Van Geyzel, Dr Sedal thought the applicant’s condition was likely to last longer than two years.  Dr Sedal confirmed that the applicant’s level of pain would have prevented her from working or undertaking a retraining program.

Consideration

16.     The applicant will only qualify for the payment of DSP if she is able to score a rating of 20 points under the Impairment Table (s 94(1)(b) of the Social Security Act 1991 (the Act)).  That qualification must be met at the time of the lodging of the claim (19 July 2007 or within 13 weeks thereafter).  A rating can only be assigned if the person has a condition(s) and if that condition is permanent.  The applicant has conditions – chronic pain syndrome with accompanying psychiatric conditions including a depressive disorder.

17. Paragraph four of the introduction to the Impairment Tables found in Schedule 1B of the Act requires a person’s condition must have been a “fully documented, diagnosed condition which had been investigated, treated and stabilised” before an impairment rating can be assigned. The Schedule forms part of the legislation and must be implemented according to its terms.[12]

[12] Trajkovski and Secretary Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 1097 at [8]-[9].

18. The evidence in this case demonstrates that the applicant’s psychiatric condition has not stabilised and has not been treated, the latter to the extent that is contemplated in paragraph 4 of Schedule 1B. At most it can be said that treatment was commenced in 2007 in respect of her psychiatric condition but it was incomplete and discontinued when she left Sydney and relocated with her family to Melbourne. In the unanimous opinion of the doctors who have examined her, the applicant would benefit from a continuation of the treatment. It would, of course, be absurd to conclude that a condition must be treated to a stage where the person has recovered in order for that person to be granted a DSP. It must, however, be treated to the stage where the condition has stabilised. It is only at that time can it then be concluded that a person has or has not a continuing inability to work over the next two year period or that the impairment will be likely to result in the person not being able to undertake training activity in a two year period which will lead to an unsupported ability to work (s 94(2)(a) of the Act). Since these are necessary prerequisites to a person being awarded the pension a person who does not meet them does not qualify. That, regrettably, is the applicant’s situation as of 19 July 2007 (including the 13 weeks thereafter). It is regrettable because the applicant has been unable, she claims through lack of funds, to obtain the treatment necessary to assist her resolve her medical problems. The public health system is the only means apparently available to her. She may be able to access that with the assistance of a local general medical practitioner to the extent necessary to qualify for the pension, assuming, of course, that the treatment does not resolve her medical condition.

19.     For the reasons expressed the Tribunal affirms the decision under review.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Mr G. L. McDonald, Deputy President

Signed:         ..................................[sgd]...........................................
  Associate                  Grace Horzitski

Date/s of Hearing  13 January 2009
Date of Decision  12 June 2009
Solicitor for the Applicant          Self-represented
Solicitor for the Respondent     Mr D Perdon, Centrelink Legal Services Branch