Valentina Sirijovski and Secretary, Department of Social Services
[2014] AATA 505
•24 July 2014
[2014] AATA 505
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/3053
Re
Valentina Sirijovski
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Miss E A Shanahan, Member
Date 24 July 2014 Place Melbourne The Tribunal affirms the decision under review.
............................[sgd]............................................
Miss E A Shanahan, Member
SOCIAL SECURITY – pensions and allowances – disability support pension – back injury leading to chronic pain syndrome following motor vehicle accident – anxiety and depression – failure to satisfy s 94(1)(b) of the Social Security Act 1991 in not attaining a 20 impairment point rating – new application successful in January 2014 – in receipt of DSP – eligibility under review – applicant seeking back payment of DSP – recent treatment for back pain –– decision under review affirmed.
Legislation
Social Security Act 1991
Social Security (Administration) Act 1999Social Security Tables for the Assessment of Work Related Impairment for Disability Support Pension (Determination 2011)
REASONS FOR DECISION
Miss E A Shanahan, Member
24 July 2014
Ms Sirijovski lodged a claim for a disability support pension (DSP) on 27 June 2012. The medical conditions on which her claim was based were chronic neck pain, lower back pain and left leg pain following injuries she states were sustained in a motor vehicle accident on 6 August 2009. The claim was supported by medical reports from her general practitioner, Dr S Massouh. The first report dated 30 May 2012 (T9) listed the applicant’s physical symptoms (lower back and neck pain). The second report on 11 September 2012 (T13) included the complaints of headache, anxiety and depression.
Ms Sirijovski’s claim was rejected on 28 August 2012 by a delegate of Centrelink as her conditions did not attract at least 20 impairment points as required under s 94(1)(b) of the Social Security Act 1991 (the Act). The decision to reject the claim was affirmed by an authorised review officer (ARO) on 25 September 2012. Ms Sirijovski subsequently lodged an application with Social Security Appeals Tribunal (SSAT) and on 3 May 2013 the decision was affirmed. The SSAT determined that her medical conditions attracted an impairment rating of 15 points and that she had not actively participated in a program of support as required by s 94(2)(aa). Ms Sirijovski lodged an application for review by the Administrative Appeals Tribunal on 26 June 2013.
At the hearing before the Tribunal, Ms Sirijovski was self-represented. Ms Ailsa Bramley appeared on behalf of the Secretary, Department of Social Services (the Secretary). The Secretary provided the documents pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T and ST-documents) which were tendered as Exhibit R1. Ms Sirijovski tendered the following documents:
·A report of Ms Kylie Allen, Clinical Psychologist dated 18 October 2013 – Exhibit A1
·Report of Mr R Simm, Orthopaedic Surgeon dated 31 January 2013 – Exhibit A2
·Report of Dr G Connoley dated 24 July 2012 – Exhibit A3
·Report of Dr G Connoley dated 17 November 2009 – Exhibit A4
·Report of Ms Kylie Allen dated 12 May 2014 received 10 June 2014 – Exhibit A5
BACKGROUND TO THE APPLICATION
Ms Sirijovski states that she was involved in a motor vehicle accident on 6 August 2009. The car she was driving was stationary when it was hit from behind by another vehicle. She was wearing a seatbelt at the time but was thrown forward and her left leg was wedged between the seat and the steering wheel. She believes her jaw collided with the steering wheel. Her daughter, who was travelling in the back seat, was not injured. The car sustained several thousands of dollars’ worth of damage. An ambulance was not called but Ms Sirijovski was seen by her general practitioner shortly after the accident and was found to be essentially unharmed with a full range of movement of her neck and spine. She subsequently became symptomatic with pain in her cervical spine, lower back and left leg. X-rays of Ms Sirijovski’s cervical and lumbosacral spine were performed on 10 September 2009. The x-ray of the cervical spine was reported as being entirely normal and that of the lumbosacral spine revealed minor spondylosis. There were no acute bony injuries or changes. Ms Sirijovski was treated with physiotherapy, hydrotherapy and simple analgesics. However, her pain became chronic in nature and prevented her from continuing to work in the two businesses she owned and operated, as a beauty therapist and a make-up artist. Ms Sirijovski subsequently developed headaches and anxiety and depression.
Ms Sirijovski was also involved in motor vehicle accident in 1992. She developed tenosynovitis in 2001 when she was employed as a loans officer with the Commonwealth Bank of Australia. Her employment had been terminated after she had been unable to return to work for a period of six months. At the time of the termination of her employment she was pregnant and it was anticipated that she would return to work following delivery of her child.
Ms Sirijovski completed year 12 of secondary education and has a Certificate III in hairdressing, Certificate II in make-up artistry and has undertaken studies in banking and finance. She is married with two daughters and currently she, her husband and children live with her parents. She and her husband sold their house and intend to build a new one. Ms Sirijovski’s husband is a self-employed electrician.
Ms Sirijovski claims she is in continual pain rated at between five and eight out of ten on the visual pain scale. She states that her ability to undertake household tasks is limited as her range of movement is limited by pain. Ms Sirijovski is able to drive a car but limits the distances she drives and requires assistance with shopping. Her mother does most of the housework.
Ms Sirijovski’s medical expenses have been met by the Transport Accident Commission (TAC) where appropriate but as she was unable to prove that she had earned any income at the time of the accident, she has not been compensated for loss of earnings.
She was referred to Mr David de le Harpe, orthopaedic surgeon, in relation to her back pain and the only report provided to the Tribunal is that dated 10 April 2012 at which time Mr de le Harpe reported that he had seen Ms Sirijovski on 5 April 2012 and she was doing well with physiotherapy. He confirmed that there was no indication for surgical intervention in any way and that physiotherapy and hydrotherapy should be continued.
After she lodged her claim for DSP, Ms Sirijovski underwent a job capacity assessment (JCA) on 13 July 2012. The assessment was carried out by an exercise physiologist who, based on the reports of the treating general practitioner, Dr Massouh, determined that Ms Sirijovski’s spinal disorder and left lower limb deficiency were fully diagnosed, treated and stabilised. Ms Sirijovski stated that the conditions resulted in pain, inability to stand for longer than five minutes and inability to lift more than five kilograms. The assessor allocated 10 points to the spinal disorder and 5 points to the lower limb deficiency. The assessor determined that with intervention, Ms Sirijovski’s capacity for work within two years would be 15 to 22 hours per week in a light semi-skilled occupation.
Based on this assessment Ms Sirijovski’s application for the DSP was rejected.
The SSAT heard Ms Sirijovski’s application on 3 May 2013 by which time Ms Sirijovski had been assessed by Dr Nigel Strauss at the request of the TAC. He had determined that Ms Sirijovski had some post-traumatic stress symptoms and a mild chronic adjustment disorder with mixed anxiety and depressed mood resulting in a psychiatric impairment of ten per cent, but did not have any effect on her capacity for work. Dr Strauss found that Ms Sirijovski’s incapacity was physically based and not psychologically based. The SSAT also had access to a report of the psychologist Kylie Allen who had diagnosed depression with impaired sleep and poor concentration. Ms Allen was seeing Ms Sirijovski on a regular basis for counselling and in her report of 3 May 2013 implied she had been treating Ms Sirijovski for a year when in fact she first saw her in late December 2012.
Earlier in 2012 Ms Sirijovski had apparently been referred to a psychiatrist for treatment and assessment of her anxiety and depression. It emerged that she was referred to Ms C Wagner who is a psychologist not a psychiatrist.
The SSAT also had before it the report of Professor Iansek dated 10 October 2012, to whom she had been referred for investigation and treatment of her headaches. Professor Iansek had attributed Ms Sirijovski’s headaches to muscular spasm in the cervical region. He found a normal range of movement of the neck and recommended the use of a special pillow and heat packs and also referral to a multi-disciplinary pain management program.
Ms Sirijovski was subsequently seen by Dr P Lim, Rehabilitation and Pain Medical Specialist, who agreed that while Ms Sirijovski may not have, what he called a significant centrally sensitisation to pain, otherwise known as chronic pain syndrome, there was a significant adjustment issue and referral and treatment by a pain rehabilitation team was indicated. Dr Lim arranged for Ms Sirijovski to undergo such a program at the North‑Eastern Rehabilitation Centre. The program involved treatment from a psychologist and a psychiatrist, as well as occupational therapists and physiotherapists.
Dr Lim did opine that some of Ms Sirijovski’s lower back pain was causally related to her morbid obesity, in particular her abdominal obesity which caused her to stand with an exaggerated lumbar lordosis. Ms Sirijovski has gained over 30 kilograms in weight since the motor vehicle accident and now weighs 138 kilograms.
Prior to the SSAT hearing, Ms Sirijovski was assessed by Mr Rodney Simm, an orthopaedic surgeon, at the request of her then lawyers, Maurice Blackburn. Mr Simm’s only positive findings on examination were guarded and restricted movement of the thoracolumbar spine affecting predominately forward flexion but importantly, he found no evidence of any radiculopathy. Some sensory changes complained of were non‑anatomical. Mr Simm’s examination of Ms Sirijovski’s left leg revealed no abnormality. Mr Simm made a diagnosis of a whiplash syndrome resulting possibly in soft tissue injury but no radiculopathy and a soft tissue injury of the left leg. He recommended weight reduction and ongoing management for chronic pain.
The Tribunal notes that the investigation of Ms Sirijovski back condition has been limited by her morbid obesity in that she does not fit into the standard CT scanner or MRI scanner. She has now apparently had an MRI scan using the more modern equipment ordered by Mr de la Harpe which involved scanning her lumbosacral spine and showed no evidence of any radiculopathy. The report of this MRI has not been provided.
In her evidence before this Tribunal, Ms Sirijovski stated that her antidepressant medication had been stopped and she now only takes Valium occasionally and Stilnox to sleep. She has been seeing the clinical psychologist, Ms Allen since December 2012 and her attendances are for counselling pursuant to a Mental Health Plan devised by Dr Massouh in late 2012. She is not billed for these consultations with Ms Allen.
Ms Sirijovski also informed the Tribunal that she continues to see Mr de la Harpe and that she is to undergo a further MRI scan. She said that in February 2014, she underwent nerve blocks of the medial branches of her lumbar nerve roots. As there are no reports from the treating doctors regarding this procedure, the Tribunal could not confirm at what levels these medial branch nerve blocks were performed. Ms Sirijovski also informed the Tribunal that she is to undergo facet joint local anaesthetic and corticosteroid injections in the future pending the performance of the MRI. She stated that she was definitely going to have the facet joint injections, regardless of the MRI findings.
In December 2013 Ms Sirijovski lodged a further claim for DSP. A JCA was performed on 9 December 2013 by an exercise physiologist and a clinical psychologist. On this occasion, Ms Sirijovski’s spinal condition was considered to be fully diagnosed, treated and stabilised. The assessor allocated 20 impairment points. The assessor referred to her depression but found that there was insufficient information to verify the functional impact of the condition on Ms Sirijovski. As a result of this 20 impairment point rating, Ms Sirijovski has been receiving DSP since February 2014.
The Secretary, on his own motion, has undertaken a review of the recent decision that Ms Sirijovski qualifies for DSP. This review is still in progress and a decision has not been made. The Tribunal notes that Dr S Armstrong from the Health Professional Advisory Unit, having examined all the data and reports before the Secretary up to 18 December 2013, has assessed Ms Sirijovski’s spinal condition as attracting 5 impairment points and her psychological condition as attracting 5 impairment points. Dr Armstrong spoke with Dr Massouh and ascertained that Dr Massouh had not seen Ms Sirijovski since December 2012 despite having provided a report dated 1 October 2013 in support of her second claim for DSP.
Whilst the Tribunal acknowledges the intervening events, this application is concerned with Ms Sirijovski’s qualification for DSP within the 13 period commencing from the date she lodged her first claim on 27 June 2012. Therefore, the relevant period is from 27 June 2012 to 26 September 2012 (Section 4 of Schedule 2 to the Social Security (Administration) Act 1999).
The Tribunal has summarised the evidence of Ms Sirijovski and the salient documentation. However, further comment on the reports of Ms Kylie Allen the psychologist is warranted.
Ms Allen only commenced seeing Ms Sirijovski in December 2012, some 6 months after the claim for DSP was lodged and has continued to see her for 18 months in accordance with Mental Health Plans devised by Dr Massouh, who has not seen Ms Sirijovski since December 2012. Ms Allen has provided reports addressed to To Whom it May Concern, at regular intervals. With the exception of the introductory paragraph in each report, the conclusion is the same in that, in her assessment, Ms Sirijovski is too depressed and anxious to find employment, that she meets the diagnosis for depression and is in addition dealing with grief of losing her previous level of functioning. For these reasons, Ms Allen supports her application for DSP.
RELEVANT LEGISLATION
The qualification requirements for DSP are contained in s 94 of the Act which states:
(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; ...
…
(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.
Section 94(5) provides:
(5)In this section:
program of support means a program that:
(a)is designed to assist persons to prepare for, find or maintain work; and
(b)either:
(i) is funded (wholly or partly) by the Commonwealth; or
(ii) is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.
training activity means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments:
(a)education;
(b)pre‑vocational training;
(c)vocational training;
(d)vocational rehabilitation;
(e)work‑related training (including on‑the‑job training).
work means work:
(a)that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
(b)that exists in Australia, even if not within the person’s locally accessible labour market.
For the purpose of s 94(1)(b), the Impairment Tables and the rules for applying them are set out in the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension)Determination 2011 (the Impairment Tables). Section 6 provides that an impairment rating can only be assigned to conditions that are permanent meaning conditions that have been fully diagnosed, fully treated and fully stabilised. A condition is fully stabilised if reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years.
Paragraph 11(1)(c) of the Impairment Table provides:
…if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied; ...
Lower Limb deficiencies are assessed under Table 3, spinal conditions are assessed under Table 4 and mental health conditions under Table 5.
SUBMISSIONS
Ms Sirijovski did not make formal submissions. She argues that given that she was found eligible for the DSP following her second claim of 21 October 2013, her payments should be backdated to 27 June 2012.
The Secretary
Ms Bramley submitted that there was no evidence that Ms Sirijovski’s psychological state had stabilised despite ongoing psychological treatment and it was therefore, not able to be assessed in the terms of an impairment rating. Ms Bramley submitted that the Secretary accepted that Ms Sirijovski’s spinal condition was fully diagnosed, treated and stabilised. However, the condition has a mild functional impact and therefore, 5 points should be assigned.
TRIBUNAL’S DELIBERATIONS
On 25 September 2012, the ARO who affirmed the primary-decision to reject Ms Sirijovski’s claim for DSP, accepted a 10 impairment point rating in relation to her spinal disease. At the time of this decision Ms Sirijovski had not been seen by a clinical psychologist or a psychiatrist and her mental health status had not been fully assessed and diagnosed and therefore, attracted no impairment points.
On review, the SSAT assigned an impairment rating of 10 points for her spinal disorder under Table 4 and 5 points for her mental health function impairment under Table 5.
In the interval between these two decisions, Ms Sirijovski had, in December 2012, commenced seeing the clinical psychologist, Ms Allen for counselling as part of a Mental Health Plan devised by Dr Massouh. In October 2012, Ms Sirijovski was assessed by the psychiatrist, Dr Strauss, at the request of the TAC. Dr Strauss made the diagnosis of an adjustment disorder with depressed and anxious mood and some symptoms of post-traumatic stress disorder. He assessed her mental health status as having no impact on her functional capacity for work but for compensation purposes provided an impairment rating of 10 per cent.
At the time the SSAT made the decision of 3 May 2013, Ms Sirijovski had been receiving psychological counselling for less than six months, she had ceased antidepressant medication and both Dr Strauss and Ms Allen considered Ms Sirijovski’s depression or adjustment disorder was secondary to her physical complaints. The only report from Ms Allen that was available to the SSAT was that dated 6 March 2013 in which the only functional assessment made was that Ms Sirijovski was currently too depressed and stressed to find employment. Ms Allen did not provide a prognosis.
The Tribunal accepts that Ms Sirijovski suffers from a chronic pain syndrome secondary to spinal and leg pain and an adjustment disorder. Therefore, she satisfies the requirements of s 94(1)(a) of the Act.
There is no medical evidence before the Tribunal to indicate that in the period under review, namely the 13 weeks between 27 June 2012 and 26 September 2012, Ms Sirijovski’s psychological condition had been fully treated and stabilised. In 2010 Ms Sirijovski was taking anti-depressant medication but is now only taking an occasional small dose of valium and sleeping tablets. This reduced medication suggests her depression may have improved. Ms Sirijovki commenced counselling with Ms Allen in December 2012 which suggests that not all reasonable treatment options had been explored in the period under review and therefore, the Tribunal is not satisfied that her psychological condition was fully treated and stabilised in that period.
Based on Ms Sirijovski’s evidence to the Tribunal, it is clear that her spinal disorder is not fully treated and stabilised. She has given evidence that she is undergoing further investigations and is awaiting an MRI. Ms Sirijovski informed the Tribunal that in February 2014, she had undergone lumbar spinal nerve root medial branch blocks, the details of which are not known. She says these have not provided great benefit and she is to undergo lumbar facet joint injections, presumably with local anaesthetics and corticosteroids in the not too distant future. Given this evidence, the spinal disorder cannot be considered to be fully treated and stabilised.
The evidence regarding the on-going treatment of Ms Sirijovski’s back pain only came to light during the hearing. The Secretary had not been informed of these treatments.
Although Dr Massouh, the treating general practitioner provided a report dated 1 October 2013, further enquiries by Dr Armstrong of the Health Professional Advisory Unit revealed that Dr Massouh last saw Ms Sirijovski in December 2012. Dr Massouh advised Dr Armstrong that throughout the period she cared for Ms Sirijovski, Ms Sirojovski’s had a good and full range of movement of the spine. The Tribunal accepts that Ms Sirijovski has what appears to be a chronic pain syndrome as there is very little in the way of objective spinal disease commensurate with her level of symptoms and incapacity.
The Tribunal cannot find any medical evidence or opinion to support the SSAT’s conclusion that Ms Sirijovski’s leg pain is referred pain from her spinal pathology. Ms Sirijovski stated her left leg was wedged between the seat and steering wheel in the accident and none of the experts or the investigations suggest the existence of a radiculopathy.
The Tribunal affirms the decision under review on the basis that in the 13 week qualification period, Ms Sirijovski’s spinal disorder leading to a chronic pain syndrome and adjustment disorder were not fully treated and stabilised. Therefore, impairment points could not be assigned to those conditions and Ms Sirijovski did not satisfy the requirements of s 94(1)(b) of the Act. Having regard to the evidence, the Tribunal doubts whether those conditions could be said to be fully treated and stabilised now.
I certify that the preceding 43 (forty‑three) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member ...........................[sgd].............................................
Associate
Dated 24 July 2014
Date of hearing 26 June 2014 Applicant In person Advocate for the Respondent Ms Ailsa Bramley, Department of Human Services
0
0
0