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

[2018] AATA 2575

Wright and Secretary, Department of Social Services (Social services second review) [2018] AATA 2575 (31 July 2018)

Division:GENERAL DIVISION

File Number(s):      2017/2117

Re:Samia Wright

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Mark Hyman, Member

Date:  31 July 2018

Place:Canberra

The decision under review is affirmed.

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

Mark Hyman, Member

Catchwords

SOCIAL SECURITY – disability support pension – rejection of claim – inflammatory arthritis with osteoarthritis – whether fully diagnosed, - whether fully treated and stabilised – chondromalacia patellae – Hashimoto’s thyroiditis – depression and anxiety – decision under review affirmed

Legislation

Administrative Appeals Tribunal Act 1975, ss 37, 38AA

Social Security Act 1991, ss 26, 94

Social Security (Administration) Act 1999, ss 37, 42, Schedule 2

Cases

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

Eid and Secretary, Department of Families, Housing Community Services and Indigenous Affairs [2013] AATA 558

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

Gallacher and Secretary, Department of Social Services [2015] FCA 1123

Netherwood and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 331

Secondary Materials

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

REASONS FOR DECISION

Mark Hyman, Member

31 July 2018

1. This decision is about whether the applicant, Ms Samia Wright, should be granted disability support pension (DSP). Ms Wright claimed DSP in 2016, lodging a claim on 2 March of that year, but her claim was rejected by the Department of Human Services – Centrelink (the Department), and then rejected again twice on review, including most recently by the Social Services and Child Support Division of this tribunal. On 13 April 2017 Ms Wright applied to this tribunal for further review.

2. The tribunal held a hearing on 28 June 2018. Ms Wright participated by videoconference, with the help of a support person (Ms Kylie Speer, a disability advocate). Ms Charlie Inglis, a departmental advocate, represented the Secretary, Department of Social Services, the respondent in this matter. Ms Wright gave evidence and was cross-examined. The Secretary called Dr Mieka Tabart, a medical professional from the Health Professional Advisory Unit of the Department of Human Services, as a witness.

3. The documentary evidence before the tribunal comprised documents submitted under sections 37 and 38AA of the Administrative Appeals Tribunal Act 1975 (the “T-documents” and supplementary T-documents); a group of documents filed by Ms Wright, including a witness statement by Ms Wright, various assessment reports, correspondence, photographs and doctors’ reports and letters, some of which duplicate documents elsewhere in the papers; and a medical report by Dr Tabart and briefing letter filed by the Secretary.

   LEGISLATION

4. The grant of DSP is governed by section 94 of the Social Security Act 1991 (the Act). Section 94 reads in part as follows:

   94(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;

   …

5. The conjunctive drafting of the above provision means that a person must meet all of paragraphs 94(1)(a), (b) and (c) in order to qualify for DSP.

6. The “Impairment Tables” referred to in paragraph 94(1)(b) are contained in a legislative instrument authorised by subsection 26(1) of the Act: Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011. The Impairment Tables set out tests of permanence and severity of impairment. In order to rate a person’s impairment under the Impairment Tables a decision-maker must first determine that the impairment in question is permanent. Section 6 of the Rules for Applying the Impairment Tables (the Rules) provides that an impairment is permanent if it has been fully diagnosed, fully treated and fully stabilised, and is likely to persist for more than two years. Further subsections elaborate in particular on the meaning of ‘fully treated’ and ‘fully stabilised’.    

7. The specific Impairment Tables that follow the Rules each relate to an area of impairment (e.g., Table 4 – Spinal Function or Table 10 – Digestive and Reproductive Function) and each Table is preceded by additional Rules governing how the Table is to be used. The tables themselves rate impairments not according to diagnosis of a particular condition, but according to functional impact, that is, according to the degree to which the impairment being assessed affects the kinds of things a person might be expected to do in the workplace.

8. Assessing whether a particular person qualifies for DSP therefore requires first, establishing that each impairment is fully diagnosed, fully treated and fully stabilised. Once the person satisfies that test, each permanent impairment can be rated for severity under the Impairment Tables.

1. Subsection 37(1), section 42 and clauses 3 and 4 of Schedule 2 to the Social Security (Administration) Act 1999 (the Administration Act) together require the tribunal to determine the applicant’s qualification for the pension at the time of the claim or in the 13 weeks that follow. That means that to succeed in her claim Ms Wright must have been qualified in the period from 2 March to 2 June 2016 (Ms Wright’s DSP claim is clearly dated 3 March 2015 but the Department has consistently referred to 2 March 2016 as the date on which the claim was submitted, and that was the date of claim considered at first review; I have adopted 2 March 2016 as the date of claim). The qualification period is important in this case because some of Ms Wright’s medical conditions are dynamic, becoming significantly worse with time; the qualification period prevents developments in Ms Wright’s conditions occurring after 2 June 2016 from being taken into account. This was explained in Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922, at [34]:

   … it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.

2. This has been the subject of considerable argument put by Ms Wright and the Secretary. Ms Inglis, for the Secretary, has pointed to case law (including Fanning and Secretary, Department of Social Services [2014] AATA 447 (Fanning) and Gallacher and Secretary, Department of Social Services [2015] FCA 1123 (Gallacher)) where in each case the tribunal and the court noted that medical reports and other similar evidence that are generated after the qualification period can only be relevant where they refer to an applicant’s condition before or during the qualification period (Fanning at [31]-[33], Gallacher at [25]-[29]). In a written submission filed before the hearing Ms Speer, on Ms Wright’s behalf, noted that a number of more recent medical reports and letters refer explicitly to Ms Wright’s condition at the time of the claim, and pointed to the statement in Netherwood and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 331, that the tribunal was not limited to reports before earlier decision-makers.

3. It is not obvious to me that there is any real difference between the parties on these issues. It is plain as a matter of law that the qualification period places a temporal limit in respect of Ms Wright’s conditions: any change after the end of the qualification period cannot be taken into account, but reports and other material generated after that time can be considered if they throw light on the condition before the end of the qualification period. I can also take into account any reports not previously considered by or available to earlier decision-makers: Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 (at 68). That, in essence, is what both parties are saying.

   ISSUES

4. The issues before the tribunal in this matter are:

   ·whether Ms Wright has one or more physical, intellectual or psychiatric impairments;

   ·if so, whether those impairments together are of at least 20 points under the Impairment Tables; and

   ·if so, whether she has a continuing inability to work.

   MS WRIGHT’S CONDITIONS

5. Ms Wright’s main basis for claiming DSP is a widespread inflammatory condition affecting most if not all of her joints, a condition the diagnosis of which has proven testing to her doctors; additional complication is added through underlying generalised osteoarthritis. Other conditions include Hashimoto’s thyroiditis, a knee condition identified as chondromalacia patellae and a mental health condition described as depression.

6. The documentary evidence includes information relating to a number of other conditions: osteopenia, progressing to osteoporosis; spinal problems; a lesion in the liver; nodules in the lungs; uterine fibroids; an ovarian cyst. Ms Wright raised some of these conditions in her DSP claim, but she has not relied on them in the present proceedings and the medical evidence is insufficient for most of them to support a claim, and it is not obvious that any of them contribute to a level of disability. Osteoporosis presents risks to health but does not usually exhibit symptoms of itself barring an accident such as a fracture. In some cases it is not clear if a separate condition is identified or if the condition may be a manifestation of one of Ms Wright’s other conditions, for example her spinal problems may be a manifestation of inflammatory arthritis and/or osteoarthritis. In the latter case, the assessment that follows will take the matter into account.

   Inflammatory arthritis

7. The earliest record of Ms Wright’s problems with arthritis is from a hospital visit in 2006, although at various times a significantly earlier onset is referenced. On 10 August 2006 Ms Wright underwent a right wrist arthroscopy and debridement[1]; the record is somewhat difficult to read, but it appears that the diagnosis was of “monoarthritis right wrist” (although the last word is obscured) and the findings were “radial TFCC tear” (which I take to be a tear of the triangular fibrocartilage complex), and “synovitis (dorsal radiocarpi ~ TFCC)”. A referral by an occupational therapist, Ms Michelle Lorking, dated 6 February 2008, in the context of obtaining better housing for Ms Wright, describes her as having “widespread Arthritis, Osteopaenia, Asthma and chronic problems with her right wrist (torn cartridge, sinovitis and surgeries)” (sic)[2]. A specialist referral (for an unrelated matter) dated 10 September 2010[3] lists Ms Wright’s current medical conditions at that time, which included arthritis, both osteoarthritis and rheumatoid arthritis. Dr Bill Giannakopoulos was identified as the responsible health professional for the condition.

   [1] T6 folio 99.

   [2] T7 folio 101.

   [3] T9 folio 104.

8. Imaging from this period records mild tendonitis in 2005 (ultrasound dated 15 July 2005)[4], diffuse synovitis of the wrist with a scapholunate ganglion (ultrasound of the right wrist dated 8 May 2006)[5], mild asymmetric inflammatory arthritis, with mild localised synovitis in the right wrist, with some inflammatory arthritis in the knees (bone scan dated 26 May 2006)[6]. A CT of the lumbar spine and an X-ray of the knees dated 27 February 2007 did not identify any significant abnormalities. An ultrasound of the right ankle (16 November 2010) noted a chronic tear of the talo-fibular ligament but no other abnormality[7].

   [4] T49 folio 276.

   [5] T49 folio 279.

   [6] T49 folio 281.

   [7] T49 folio 291.

9. On 21 September 2009 Ms Wright was assessed by the Department in terms of her employment prospects (an Employment Services Assessment (ESA) report). That report[8] noted that a previous assessment (which is not in evidence) had arrived at a diagnosis in 2005 of seronegative arthropathy affecting Ms Wright’s feet, ankles, knees, back, wrists and hands, and that she had seen a rheumatologist in 2007. Treatment in the past had included hydrotherapy and medication and currently Ms Wright treated the condition with exercise, fish oil, glucosamine and Panadol “as required”. Ms Wright is reported as having advised that her general practitioner (GP) did not foresee any other treatment.

   [8] T10 folio 108.

10. On 19 and 20 February 2008 Ms Wright underwent blood tests, including for the markers for rheumatoid arthritis. All were negative[9], including those for rheumatoid factor, C-reactive protein, complement, extractable nuclear antigens and antinuclear antibodies. Ms Wright was re-tested for antinuclear antigens and rheumatoid factor on 19 October 2008, again with negative results[10].

    [9] T50 folios 331-2.

    [10] T50 folios 340-1.

11. A further ESA report dated 31 May 2012[11] contains the same information, but yet another, dated 3 December 2012[12] paints a somewhat different picture. In that report Ms Wright is described as having two arthritic or similar conditions, namely seronegative arthritis and tendonitis in both wrists, based on a medical certificate[13] issued by Dr Petros Patroulias, apparently Ms Wright’s GP at the time (the certificate is undated but appears to come from around 22 May 2012). A DSP Medical Report dated 6 February 2013[14], completed for Ms Wright by Dr Riaz Pathai, apparently her GP at that time, lists her primary condition as seronegative arthritis. Dr Pathai noted that Ms Wright was a new and complex patient with many issues, and that he would need to explore all these issues before arriving at a treatment plan. The second of Ms Wright’s conditions was given as synovitis/tendinitis, with that diagnosis having been confirmed by Dr Graham Gumly, a hand surgeon.

    [11] T11 folio 112.

    [12] T12 folio 117.

    [13] T51 folio 363.

    [14] T13 folio 125.

12. A departmental Job Capacity Assessment dated 8 March 2013[15] identifies seronegative arthritis and bursitis, capsulitis and tendonitis as Ms Wright’s leading conditions. Neither was found to be fully diagnosed, treated and stabilised, as Ms Wright had not had recent specialist review. A DSP Medical Report by Dr Pathai dated 5 March 2013[16] is in terms very similar to those of his previous report.

    [15] T14 folio 134.

    [16] T15 folio 138.

13. A note from  Dr Chris Scott of the Hand Centre[17] (the note implies that Dr Scott is a hand surgeon) dated 15 October 2013 records Ms Wright as presenting with longstanding seronegative arthritis, also described as rheumatoid arthritis. She had in the past had a wrist ganglion removed. At the time of the consultation Dr Scott diagnosed “extensor tenosynovitis affecting predominantly the first, second and third compartment tendons”. He identified the appropriate treatment as anti-rheumatoid medication, but not surgery.

    [17] T16 folio 149.

14. Imaging over the period from 2010 to 2013 established that Ms Wright’s arthritic condition, especially of the right wrist, was worsening. An ultrasound dated 9 August 2011 identified synovitis or possibly a synovioma[18]; a report of an MRI dated 24 October 2011 identified “quite gross tenosynovitis of the tendons of the  2^nd and 3^rd dorsal compartments”[19], and this was confirmed by an ultrasound of 4 December 2012, the report on which[20] noted “tenosynovitis involving extensor carpi radialis and also involving extensor pollicis brevis and abductor pollicis longus representing a de Quervain’s tenosynovitis”.

    [18] T49 folio 293

    [19] T49 folio 300.

    [20] T49 folio 301.

15. In 2014 Ms Wright was referred to a rheumatologist. This was evidently not the first such referral, but the resulting report is the earliest in evidence. The report was made by Dr Yuen Leow, Rheumatologist Registrar to Professor Kevin Pile, Staff Specialist Rheumatologist at Camden and Campbelltown Hospitals. In the report[21], dated 28 May 2014, Dr Leow notes that Ms Wright’s blood tests were negative for the usual rheumatic markers; that a number of joints were affected by her arthralgia, including her knees, ankles and wrist; that she had previously trialled prednisolone and non-steroidal anti-inflammatory drugs; that recent imaging shows erosive disease in the carpus, affecting the intercarpal and radiocarpal joints, as well as tenosynovitis of the second extensor tendon; that there was reduced flexion-extension of the right wrist and mild swelling of the left knee, with crepitation and arthralgia; and that there were early osteoarthritic changes in the second proximal interphalangeal joints. Dr Leow and Professor Pile concluded that the contribution of inflammatory arthritis was limited, and that as a result simple analgesia was to be preferred to use of disease-modifying agents (disease-modifying anti-rheumatic drugs or DMARDs).

    [21] T23 folio 165.

16. An X-ray of the hands dated 4 November 2013[22] found no erosive disease or soft tissue calcification. Imaging taken shortly afterwards, however, notes some developments not previously observed. An MRI of the right wrist dated 28 November 2013[23] reported that since the previous MRI of 24 October 2011 (the date is quoted as 2013 in error) “a large erosion has developed on the radial articular surface in the scaphoid fossa”. The radiologist noted that although the tenosynovitis had not worsened over the previous two years, erosive disease had developed through the carpus affecting particularly the intercarpal and radiocarpal joints. No later test for blood markers for rheumatoid arthritis are available to me, but there is a series of results for C-reactive protein, a generalised inflammation marker, which shows elevated levels through 2015 and 2016, varying from 5.6 mg/L to 11.6 mg/L, against an upper bound of the normal range of 5.0 mg/L.

    [22] T49 folio 302.

    [23] T49 folio 304.

17. In 2015 and 2016 Ms Wright saw a number of rheumatologists. Dr Matthew Parker, Registrar to Dr Bill Giannakopoulos, saw Ms Wright in August 2015 and submitted a report[24] to Dr Naglaa Shams, Ms Wright’s then GP, dated 17 August 2015. He stated that Ms Wright “has clear cut evidence of progressive erosive polyarthropathy mainly affecting her wrists with associated tenosynovitis”. He suggested methotrexate, a DMARD, as treatment. In a DSP Medical Report dated 8 December 2015[25] Dr Daniel Chong identified Ms Wright’s primary condition as erosive polyarthritis mainly affecting her wrists but also causing pain in the ankles, back, knee and neck, presumably on the basis of Dr Parker’s diagnosis. At a later time, Dr Giannakopoulos was not so sure that he had arrived at the right diagnosis. He noted in a letter[26] dated 3 May 2016 that he could find no evidence of synovitis other than in the right wrist, and postulated that Ms Wright therefore had a mono articular inflammatory arthritis. He proceeded to order further imaging and testing.

    [24] ST56 folio 409.

    [25] T34 folio 222.

    [26] T38 folio 234.

18. A letter of 16 February 2016[27] from Dr Adam Maundrell, Rheumatology Registrar at St George Hospital, noted the diagnosis of seronegative rheumatoid arthritis and that treatment with the DMARD methotrexate had caused significant side effects (a rash and fatigue). Dr Maundrell foreshadowed stopping the methotrexate, waiting for the rash to subside and starting treatment with an alternative DMARD, leflunomide. In an open letter[28] dated 6 September 2016, Dr Maundrell identified Ms Wright as diagnosed with “an uncharacterised erosive inflammatory arthritis predominantly involving the right wrist” and “more widespread joint symptoms which is likely a combination of inflammatory arthritis and osteoarthritis”. Dr Maundrell noted that Ms Wright had a reaction to methotrexate and was about to begin a course of an alternative DMARD, leflunomide, which he expected to alleviate pain from the inflammatory arthritis, but not from the erosions and osteoarthritis. Dr Maundrell reported on further consultations in reports[29] dated 6 September 2016 and 4 October 2016, the first being the report of a joint consultation also involving Dr Giannakopoulos (presumably that consultation was the basis for the open letter referred to above). The conclusion in the earlier of these two reports, which was not amended in the later report, was of “uncharacterised inflammatory arthritis predominately of the right wrist with more widespread pain likely due to osteoarthritis”. Dr Maundrell’s treatment plan outlined in the report involved commencing leflunomide, with the intention of increasing the dose if the drug was well tolerated.

    [27] T35 folio 230.

    [28] T45 folio 256.

    [29] ST60 folio 418; ST61 folio 419.

1. On 26 June 2017 Dr Cheong wrote to this tribunal[30] (the letter is dated well after the first review) noting Ms Wright’s erosive arthritis and chronic debilitating pain. The Department wrote to Ms Wright’s new GP, Dr Rosalind Bullock, on 4 September 2017 seeking detailed responses to a number of specific questions[31]. Dr Bullock replied on 13 November 2017[32] noting Ms Wright’s seronegative polyarthritis with associated synovitis, affecting the right wrist, which was permanently swollen, and also affecting both knees and the small joints of the spine and feet.

   [30] ST63 folio 421.

   [31] ST64 folio 423

   [32] ST65 folio 426.

   Hashimoto’s thyroiditis

2. The earliest report of a thyroid condition in evidence is a report dated 27 November 2013 by an endocrinologist, Dr Soji Swaraj[33], although that report refers to a diagnosis from 2006, and notes that it was at that time that Ms Wright began taking thyroxine, although that was apparently unsatisfactory and Ms Wright tried alternative medications. At the time of the consultation with Dr Swaraj she was taking Oroxine (50µg/week) as well as supplements such as fish oil; Dr Swaraj noted that her symptoms of dry skin and waking unrefreshed suggested that she needed a higher dose of Oroxine. Hashimoto’s thyroiditis appears to have been accepted by that time as the diagnosis.

   [33] T17 folio 150.

3. Dr Swaraj apparently saw Ms Wright again on 10 November 2014 and 24 June 2015, although the record[34] is a little unclear: there is a typed record apparently dated 10 November 2014 overlain with a handwritten record dated 24 June 2015. It is reasonable to assume that both record Dr Swaraj’s notes, although that is a considerable assumption, but in any case the typed and handwritten records and those from the next appointment on 18 November 2015[35] provide a consistent account of Ms Wright’s progress (and nothing turns on whether or not the handwritten notes are excluded from consideration). Her Oroxine dose rose to 500 µgm/week at November 2014, to 75 µgm/day in June 2015, to 100 µgm/day in November 2015, with further increases contemplated at that time. Dr Swaraj appears to have discouraged Ms Wright from taking some supplements and analgesics, or else recorded that she had stopped taking them (they are crossed out in handwriting). In November 2018 Dr Swaraj found Ms Wright to be euthyroid apart from her need for an increased dose of Oroxine. Ms Wright was also prescribed tertroxin[36], an alternative synthetic thyroid hormone, but she said in oral evidence that she reacted to the drug and had to stop taking it.

   [34] T29 folio 205.

   [35] T31 folio 209.

   [36] T27 folio 200, T30 folio 207, T32 folio 212.

4. Imaging of Ms Wright’s thyroid showed little in the way of abnormality (in a report[37] of an ultrasound of the gland dated 22 April 2015 it is described as small, hypoechoic and heterogeneous with decreased vascularity). There are extensive pathology tests for blood markers for thyroid function[38], starting in 2008 and continuing to 2016. In those tests thyroid-stimulating hormone (TSH) was sometimes within normal limits but sometimes elevated. The most significant indicator of thyroid disease was shown by the result of a test of thyroglobulin and peroxidase antibodies on 18 April 2015[39]; both figures were well above normal. The laboratory noted that such elevated levels were an indicator of Hashimoto’s disease (among other possibilities).

   [37] T49 folio 321.

   [38] T50 folios 333, 335, 336, 337, 338, 339, 344, 347, 354, 358.

   [39] T50 folio 354.

   Chondromalacia patellae

5. On 21 April 2015 Ms Wright underwent an MRI of the right knee. The report[40] records oedema of the lateral infrapatellar fat pad with impingement, thinning and fissuring of the articular cartilage, small joint effusion, a complex septated popliteal fossa cyst and a probable ganglion protruding from the tibiofibular articulation. The diagnosis included Grade III chondromalacia patellae. Earlier imaging of the left knee (X-ray 11 August 2014, ultrasound 19 August 2014) showed a joint effusion, a meniscal cyst and a Baker’s cyst in the popliteal fossa[41].

   [40] T49 folio 319.

   [41] T49 folio 310, 311.

6. Dr Cheong in the DSP Medical Report of 8 December 2015 noted that Ms Wright’s diagnosis had been confirmed by Dr Tamer Khalil, an orthopaedic consultant, whom she had seen in April and July of that year (Dr Cheong indicated that Dr Khalil’s reports were available, but none is in evidence). Treatment for the condition was listed as physiotherapy, exercise and intra-articular steroidal injection. At her Job Capacity Assessment in June 2016 Ms Wright reported that she had completed five sessions of physiotherapy.

   Depression and anxiety

7. Ms Wright reported a long history of mental health issues, dating from the 1980s. She said in oral evidence that she had been diagnosed with a mental illness in 1980, had been confined for six months and had spent two and a half months in hospital in 1986. The earliest documentation available to me, however, is from 2014, when Ms Wright was referred to a registered psychologist, Ms Anna Ponnudurai. A report[42] to Dr Shams, then Ms Wright’s GP, dated 21 November 2014 noted that she had completed six sessions and asked for a further four. The report identified depression and anxiety as the mental health issues of concern although the focus of the note is Ms Wright’s desire to lose weight and to give up smoking. Dr Cheong’s DSP Medical Report[43] of 8 December 2015 lists depression and anxiety as a well-controlled medical condition, noting that the condition was “chronic since childhood” with multiple psychologists and mental health teams involved. An undated report[44] from another psychologist, Ms Stephanie Ivos, states that Ms Wright had at that time completed nine sessions under a mental health care plan, that she was suffering from depression and anxiety, and that these were associated with chronic pain; a further letter is in evidence[45], which is identical except that it includes a date of 5 October 2016. The reference to a mental health plan may be to that dated 2 November 2015[46], agreed between Ms Wright and Dr Cheong.

   [42] T25 folio 168.

   [43] T34 folio 228.

   [44] T46 folio 257.

   [45] ST62 folio 420.

   [46] ST58 folio 411.

   CONSIDERATION

8. As explained above, each condition can be rated for severity only if it is first established as permanent, i.e. only if the condition is fully diagnosed, fully treated and fully stabilised, and is expected to persist for at least two years.

9. Much of the evidence and argument put forward by Ms Wright and Ms Speer goes to the severity of the impacts of her conditions, and especially of the inflammatory arthritis. Those impacts, and the worsening of them over time, are undeniable; but they can only come into play if the conditions meet the tests of permanence outlined earlier. In essence, the medical profession must have done what it can in identifying and treating each of the conditions.

   Inflammatory arthritis –permanence

10. The Secretary argued that Ms Wright’s arthritic condition was not fully diagnosed because although her rheumatologists settled on a diagnosis of inflammatory arthritis with an underlay of osteoarthritis by the qualification period, Dr Giannakopoulos later backed away from that diagnosis, postulated a monoarticular arthritis and proceeded to undertake further tests to rule out other possibilities. After doing so he arrived once again at the initial diagnosis. In the Secretary’s argument, the open possibilities during the qualification period meant that the condition could not be regarded as fully diagnosed at that time, even if the original diagnosis was identical to that subsequently arrived at after further tests.

11. Dr Tabart’s report[47] provides a detailed analysis of the engagement of the medical profession with Ms Wright’s arthritic condition, noting its progression and the eventual arrival at the diagnosis of progressive seronegative erosive polyarthropathy with associated tenosynovitis. The date of that diagnosis is identified by Dr Tabart as 17 August 2015, based on the report of that date by Dr Parker[48] and the DSP Medical Report of 8 December 2015 by Dr Cheong[49]. Dr Tabart concluded that the condition was not fully diagnosed at the qualification period, again on the basis that Dr Giannakopoulos subsequently undertook further investigations, implying that he had not arrived at a final diagnosis at the earlier date.

    [47] Exhibit R1.

    [48] ST56 folio 408.

    [49] T34 folio 219.

12. Dr Tabart supported that conclusion in her oral evidence, pointing out the importance of the full clinical presentation, drawing on radiological findings as well as reported symptoms. She also noted that the diagnosis was vital because the form of treatment to be adopted flowed from it – one form of inflammatory arthritis would receive different treatment from another form. Thus while the diagnosis was being confirmed, no treatment could proceed. The aim of treatment for inflammatory arthritis is to achieve remission or low disease activity; the aim of treatment for osteoarthritis is to alleviate symptoms and restore function. DMARDs are critical in inflammatory arthritis. Which DMARD to use depends on the course of the disease and the side effects on the patient. A critical choice is between monotherapy and combined therapies. DMARDs are often extremely successful in trials; in real life the picture is more mixed. There are quite a few possible DMARDs, but a patient is unlikely to trial them all – some will be more appropriate choices than others.

13. In support of the conclusion that the Ms Wright’s arthritis was not fully diagnosed at the qualification period the Secretary quoted Eid and Secretary, Department of Families, Housing Community Services and Indigenous Affairs [2013] AATA 558 (Eid). In that decision Deputy President Forgie notes that provided a diagnosis is arrived at and the evidence shows that the person suffered from the condition during the qualification period, the condition is fully diagnosed. That seems very closely to match the position here: Ms Wright was diagnosed; one of her doctors thought that there were some other possibilities that ought to be looked at, but in the event those other possibilities were excluded. Even without the earlier diagnosis, this meets DP Forgie’s reasoning.

14. The course of Ms Wright’s arthritic condition is clear from the evidence. It began in the early 2000s, was identified as seronegative by 2008 and progressed gradually, leaving her doctors uncertain from time to time whether they were dealing with a problem largely characterised as a synovitis of the right wrist or a broader problem. From about 2014 the influence of widespread osteoarthritic change, in addition to the inflammatory arthritis, came to be noted. The critical juncture came with the identification of erosions of the right wrist in November 2013. That imaging appears to have been the evidence that allowed Ms Wright’s specialists, over the following months, to arrive at their diagnosis. There is no evidence that Ms Wright’s underlying condition changed significantly after the qualification period except of course that the progression continued.

15. Ms Inglis, for the Secretary, argued that the present matter should be distinguished from Eid in that in that case the problematic diagnosis was for fibromyalgia, a condition for which there is no treatment pathway; whereas in Ms Wright’s case the diagnosis was required so that treatment could be decided on. That argument is certainly relevant to when the condition should be regarded as fully treated but in my view has no bearing on when it was fully diagnosed: the diagnosis arrived at looked back to the condition as at the end of 2015, but treatment had been delayed while Ms Wright’s doctors confirmed their view. I find the condition to be fully diagnosed at the qualification period.

16. Whether the condition was fully treated and fully stabilised, however, is another matter. The expectation with inflammatory arthritis is that a DMARD would be prescribed and Ms Wright took methotrexate accordingly, apparently from 17 August 2015[50]. That caused side effects (specifically a rash and fatigue). Ms Wright was not treated with disease modifying agents from an earlier date in part because her doctors believed at that time that the inflammatory arthritis was making only a minor contribution to the arthritic symptoms[51]. In February 2016 Dr Maundrell stopped treatment with methotrexate and allowed the rash to subside[52]. He started leflunomide, a second DMARD, in September 2016[53].

    [50] ST56 folio 408.

    [51] T23 folio 165.

    [52] T35 folio 230.

    [53] T45 folio 256.

17. To Ms Wright, whose arthritis is significantly worsening over time, each successive course of medication no doubt appears simply as yet another attempt to control a condition that has been resistant to treatment: analgesics, the steroid prednisolone, non-steroidal anti-inflammatories and other courses of treatment such as physiotherapy, hydrotherapy or acupuncture have either proven ineffective or have been abandoned after they provoked side effects. Leflunomide has evidently been no more successful as a treatment than was methotrexate – Ms Wright said in oral evidence that after a few weeks it made her vomit and she stopped taking it. Nevertheless, looked at objectively, the course of treatment arrived at after the diagnosis was finally settled on was only part way through at the end of the qualification period. Some delay may have been occasioned by Dr Giannakopoulos’s determination to rule out some alternative diagnoses. Whether that is so or not, I am compelled to conclude that at 2 June 2016, at the end of the qualification period, Ms Wright’s inflammatory arthritis was not fully treated and fully stabilised.

    Hashimoto’s thyroiditis – permanence

18. It is not disputed by the Department that Ms Wright’s thyroid condition was fully diagnosed, fully treated and fully stabilised at the qualification period. Dr Tabart came to the same conclusion, and I so find.

    Chondromalacia patellae – permanence

19. It is common ground that Ms Wright’s chondromalacia patellae was fully diagnosed in the qualification period. With regard to treatment, at the end of the qualification period Ms Wright could be regarded as having done her best with physiotherapy and with a number of medications aimed at easing pain and managing a condition of this kind. Intra-articular injection with a steroid, however, was still contemplated at that time. Ms Wright subsequently had such an injection, and Dr Bullock reported that it made her pain worse[54]. It remains the case, however, that at the qualification period Ms Wright was yet to undergo a knee treatment that had significant potential to manage her symptoms not only once but on a repeated basis if successful. That was not how matters transpired; but at the end of the qualification period Ms Wright’s knee condition was not fully treated and fully stabilised.

    [54] ST65 folio 425.

    Depression and anxiety – permanence

20. Table 5 – Mental Health Function of the Impairment Tables requires that the diagnosis of a mental health condition is diagnosed by a psychiatrist or with input from a clinical psychologist. The evidence available to me does not include such a diagnosis. Ms Speer referred to Netherwood as authority for a finding of permanence on the basis of an established pattern of treatment, but that case dates from 2011, when an earlier version of the Impairment Tables was in use, and the requirement to obtain a diagnosis from a psychiatrist or clinical psychologist had not been introduced. Neither Ms Ponnudurai nor Ms Ivos is a clinical psychologist: both appear as registered (rather than clinical) psychologists on the Australian Health Practitioner Registration Agency’s Register. As noted above, Ms Wright reports that she has received psychological help over a protracted period going back decades. She says that she was diagnosed by Dr Marie Bashir in the 1980s but has been unable to access information from so far back (she said in oral evidence that the records had been destroyed); despite that extensive history, no diagnosis of the kind required by the Impairment Tables is in evidence, and consequently I am unable to find that Ms Wright’s depression and anxiety are fully diagnosed.

    Severity

21. The only condition that can be rated for severity is Ms Wright’s thyroiditis. It is argued by the Department that the effect of the treated thyroid condition on Ms Wright’s ability to function is minimal. Ms Wright herself did not dispute that, noting in her response to the Secretary’s statement of facts, issues and contentions that the condition contributed to her inability to tolerate certain foods and medications[55]. I assign zero points to Ms Wright’s thyroid condition under Table 1 – Functions requiring Physical Exertion and Stamina.

    [55] Exhibit A1 paragraph 33.

    CONCLUSION

22. There is no doubt that Ms Wright is very significantly affected by her disabilities. Dr Tabart’s report includes a very persuasive and thorough summary of the evidence showing those disabilities[56] – especially the arthritic conditions – worsening and causing increasing debility as well as significant levels of pain. Several assessments have now found that Ms Wright cannot work: Dr Cheong certified that on 26 June and 10 October 2017[57] and independent expert assessments have come to the same conclusion (Konekt, Ms Xanthe Maclean, 28 November 2017[58], Elephant in the Room Training and Consulting, Ms Alison Thomas, 27 November 2017[59]). Ms Wright has submitted significant volumes of evidence attesting to the severity of her symptoms, including numerous photographs of her hands and wrists showing the degree of swelling[60]. She states - and it is not contested – that she cannot wear shoes for more than a short period and cannot use a computer; she had to withdraw from two courses that she took up because she could not sustain the degree of computer interaction required.

    [56] Exhibit R2 pages 10-12.

    [57] Exhibits A6, A11.

    [58] Exhibit A3, ST67 folio 432.

    [59] Exhibit A4, ST66 folio 427.

    [60] T48 folio 260, exhibit A9.

23. Indeed it seems to be generally accepted that Ms Wright cannot take up any form of employment because of her disabilities. That would seem to be a sound basis for granting DSP; but the law imposes a series of stepwise hurdles and a claimant must leap those hurdles at the time of lodging the claim. It appears that Ms Wright might have lodged her claim somewhat early; at the time of lodging and during the qualification period, there were treatment options still to be tried and tested. These unexplored or incompletely explored options meant that most of her conditions were not fully treated and fully stabilised by the end of the qualification period, and she did not meet paragraph 94(1)(b) of the Act.

24. Both Ms Wright and the Secretary provided evidence and argument relating to whether Ms Wright met paragraph 94(1)(c) of the Act, i.e. whether she had a continuing inability to work. As I have decided that Ms Wright does not meet paragraph 94(1)(b) of the Act, I do not need to turn my mind to that question.

25. It is of course open to Ms Wright to submit a new claim for DSP at any time.

26. The decision under review is affirmed.

I certify that the preceding 52 (fifty-two) paragraphs are a true copy of the reasons for the decision herein of  Member Mark Hyman

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

Associate

Dated: 31 July 2018

Date of hearing:	28 June 2018
Representative for the Applicant:	Disability Advocacy NSW
Representative for the Respondent:	Department of Human Services